United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1479
Issued: April 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the September 11, 2008 and
May 5, 2009 merit decisions of the Office of Workers’ Compensation Programs denying her
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 2, 2008 appellant, then a 47-year-old tax-examining assistant, filed an
occupational disease claim alleging that she sustained depression, anxiety and panic attacks due
to various incidents and conditions at work. She indicated that she first became aware of her
claimed condition and its relationship to her work on June 7, 2005.

In an attached statement, appellant asserted that after she was promoted from the position
of case processor to the position of tax-examining assistant around December 2003, she did not
receive the same level of training that her coworkers had received. Her coworkers received
training for about six months on a one-on-one basis from Rosemary Burnett, a senior tax
examiner and they only had to focus on case closing during this period. Appellant claimed that
these coworkers were exposed to a variety of cases during their training and were able to consult
with Ms. Burnett on a frequent basis. She indicated that when she was promoted to the position
of tax-examining assistant she had to make adjustments to taxpayers’ accounts, a complicated
function which had previously been handled by tax auditors. Appellant asserted that when she
had problems in her new position she was told to have her coworkers help her. She claimed that
she did not know anything about processing cases and that she was given a large amount of
different types of cases. These cases involved such matters as adjustments to taxable income,
earned income credits, child tax credits, self-employment income, self-employment taxes,
Medicare, credit and debit interest transfers, restricted interest, penalty appeals, innocent spouse
matters, trust fund recovery and debt collection processes. Appellant indicated that these matters
involved different rules, regulations and procedures and she claimed that she was given short
timeframes to close these cases. She also had to perform mail and new receipt carding duties and
take telephone calls to answer questions from taxpayers and different offices.
Appellant indicated that she sustained stress because she faced discipline, including
removal, if she made mistakes in calculating tax liabilities or penalties. She asserted that
Marilyn Birgans-Brame, the lead tax-examining assistant and the other senior tax-examining
assistants did not have this responsibility. Appellant told Ms. Birgans-Brame that she was
confused about the various cases she worked on, but that Ms. Birgans-Brame kept telling her to
get her coworkers to assist her. She claimed that her coworkers also had large caseloads and
could provide very little assistance to her.1 Appellant indicated that on June 6, 2005 she had just
completed a restricted interest case with the assistance of a tax-examining assistant, a task which
should have been performed by a higher-grade tax-examining assistant who had received special
training. She stated that she broke down on June 6, 2005 due to the stress of performing this task
and had to leave work. Appellant returned to work on July 25, 2005 and claimed that she had
difficultly performing her work because she could not take her anti-depression medication due to
its sleep-inducing side effects. She claimed that Ms. Birgans-Brame ignored her stated concerns
about this circumstance and asserted that she was not advised of her right to apply for workers’
compensation. Appellant asserted that Steve McAlum, her manager, mistreated her in
connection with her attempts to receive benefits and claimed that she did not receive any benefits
for a month due to the negligence of Mr. McAlum.
Appellant submitted several medical reports concerning her treatment for emotional
problems, including hospitalization, in June and July 2005. On June 18, 2008 the Office
requested that she submit additional factual and medical evidence in support of her claim. In a
June 23, 2008 statement, appellant asserted that when she worked as a case processor she only
had to focus on closing cases by performing such tasks as assembling the case files and inputting
information into the computer. Her coworkers handled the complex task of making adjustments
1

Appellant claimed that another tax-examining assistant told her, “You should n[o]t be getting these different
types of cases.”

2

to tax accounts. Appellant claimed that when she was promoted to tax-examining assistant she
became stressed because she had to perform these adjustment duties for the first time. She
provided a detailed description of work duties which she considered stressful, including carding
new receipts when taxpayers filed appeals, determining what adjustments to make to taxpayers’
accounts and calculating the tax effects of such adjustments, inputting the proper computer codes
for adjustments and determining if statutes of limitation applied to cases. The rules for
determining adjustments and statutes of limitations were unusually complicated and appellant
had to make determinations quickly due to various deadlines. She indicated that she had to make
an appointment with a coworker in order to receive help with these matters and stated that she
became stressed because this process caused her to hold onto cases which were subject to
deadlines. Appellant claimed that when she asked Ms. Birgans-Brame for help she would
respond, “Just do what you can.” She indicated that she received two weeks of training in
March 2005 for the tax-examiner job but that the training was inadequate.2
In a July 28, 2008 statement, Ms. Birgans-Brame stated that she was appellant’s
supervisor from May 2003 to January 2007. She asserted that Ms. Burnett was available to help
appellant perform her tax-examining assistant job and that appellant participated in monthly
training sessions and even taught a few classes. Ms. Birgans-Brame stated that in “response to
the stress level” tax-examining assistants were assisted by management in setting their workload
priority. The workload for tax-examining assistants increased as the Chicago Appeals Office had
been identified to process case closures from other offices within the area, but these extra cases
were distributed equitably, according to grade, among the tax-examining assistants.
Ms. Birgans-Brame indicated that appellant expressed concern about her ability to process the
variety of cases she was assigned, but noted that a number of cases she was assigned, including
trust fund recovery cases, were considered to be “low-graded cases.” Appellant performed mail
and carding duties on a rotational basis which were considered to be low-graded duties.
Ms. Birgans-Brame indicated that after appellant voiced her concerns innocent spouse cases
were no longer assigned to her and she was assigned less complex cases. When appellant
indicated that she could not work a particular type of case, it was immediately reassigned. She
asserted that there were no staffing shortages that would have affected appellant’s workload or
caused any extra demands. Overtime was offered to all tax-examining assistants on a voluntary
basis and appellant frequently worked overtime.
In a July 28, 2008 statement, Ms. Burnett stated that she was appellant’s coworker from
January 2004 to July 2007 and that she served as her acting manager since April 2008. She
indicated that as a higher-grade employee she was assigned to help appellant with her duties.
Ms. Burnett stated that some aspects of the tax-examining assistant could be considered stressful
including determining the application of statutes of limitation and meeting processing
timeframes. She indicated that additional training was available to appellant in monthly
workshops and she was available on a day-to-day basis to assist her. Ms. Burnett stated that she
was not aware of appellant’s inability to perform her day-to-day duties or of any personnel
shortage during the period she was claiming work-related stress.3
2

In an August 16, 2008 statement, appellant asserted that in 2006 she had a conflict with a coworker at work and
that the coworker’s daughter came to the workplace and threatened her with bodily harm.
3

The record contains a job description of the tax-examining assistant position.

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In a September 11, 2008 decision, the Office denied appellant’s emotional condition
claim on the grounds that she did not establish any compensable employment factors. It
indicated that the evidence showed that she received proper training and that adjustments were
made to her casework when she expressed concerns. The Office found that appellant was not
subjected to harassment by supervisors or coworkers.
Appellant requested a hearing before an Office hearing representative. At the January 16,
2009 hearing, she further discussed her job duties and her belief that she did not receive adequate
training. In a February 19, 2009 statement, Ms. Birgans-Brame and Ms. Burnett asserted that
appellant received proper training.4 In a May 5, 2009 decision, the Office hearing representative
affirmed the Office’s September 11, 2008 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.5 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
4

Appellant submitted a March 23, 2009 statement in which she further discussed her claim that she received
inadequate training.
5

5 U.S.C. §§ 8101-8193.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

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employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant claimed that the employing establishment did not provide adequate training to
perform the duties of her tax-examining assistant position, that she was assigned job duties for
which she was unprepared and that managers ignored her requests for help with her job duties.
Regarding these allegations, the Board finds they relate to administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties and do not fall within the
coverage of the Act.11 Although the handlings of these matters are generally related to the
employment, they are administrative functions of the employer and not duties of the employee.12
The Board has found that, an administrative or personnel matter will be considered to be an
employment factor where the evidence discloses error or abuse on the part of the employing
establishment. The Board examines whether the employing establishment acted reasonably.13
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. Ms. BirgansBrame, appellant’s supervisor during most of the period in question, and Ms. Burnett, a highergrade coworker, both testified that they were available to help appellant on a day-to-day basis
with her work duties. They also indicated that appellant attended monthly work sessions
designed to provide training on a wide variety of work topics and even taught several of these
sessions. Ms. Birgans-Brame stated that she responded to appellant’s concerns by adjusting
some of her work duties. Appellant has not submitted any evidence, such as the finding of a
favorable grievance decision, to show that the employing establishment committed error or abuse
with respect to such training, support and work assignment matters.14 Thus, appellant has not
established a compensable employment factor under the Act with respect to these administrative
matters.
10

Id.

11

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
12

Id.

13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

The Board has held that an employee’s dissatisfaction with perceived poor management constitutes frustration
from not being permitted to work in a particular environment or to hold a particular position and is not compensable
under the Act. See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

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Appellant generally alleged that she was mistreated by Mr. McAlum, a supervisor, in
connection with her attempts to receive benefits and claimed that she did not receive any
compensation benefits for a month due to the negligence of Mr. McAlum. The Board has
generally found that the development of any condition related to such matters would not arise in
the performance of duty as the processing of compensation claims bears no relation to
appellant’s day-to-day or specially assigned duties.15 Although the handling of a compensation
claim is generally related to the employment, it is an administrative function of the employer and
not a duty of the employee and thus, not compensable absent evidence of error or abuse by the
employer.16 Appellant has not shown any error or abuse by management with respect to these
matters.
Appellant also indicated that she feared being disciplined or fired if she made mistakes in
her work duties. Regarding her allegation that she developed stress due to insecurity about
maintaining her position, the Board has previously held that a claimant’s job insecurity is not a
compensable factor of employment under the Act.17
Appellant alleged that she sustained stress due to performing the duties of her
tax-examining assistant position. She indicated that beginning around January 2004 she was
responsible for making adjustments to taxpayers’ accounts and calculating the tax effects of such
adjustments, inputting the proper computer codes for adjustments and determining if statutes of
limitation applied to cases. Appellant had to make these determinations quickly due to various
applicable deadlines and making these adjustments to taxpayers’ accounts required familiarity
with a variety of different types of cases, including those for trust fund recovery and innocent
spouse cases. She also had to perform mail and new receipt carding duties and take telephone
calls to answer questions from taxpayers and different offices.
The Board has held that emotional reactions to situations in which an employee is trying
to meet her regular assigned duties are compensable. In Antal, a tax examiner filed a claim
alleging that his emotional condition was caused by the pressures of trying to meet the
production standards of his job and the Board, citing the principles of Cutler, found that the
claimant was entitled to compensation. In Kennedy, the Board, also citing the principles of
Cutler, listed employment factors which would be covered under the Act, including an unusually
heavy workload and imposition of unreasonable deadlines.18
The Board finds that appellant established compensable employment factors with respect
to the above-described work duties as a tax-examining assistant. The employing establishment
statements and the job description of record do not contradict appellant’s description of her job
duties.19 As appellant has established compensable employment factors, the Office must base its
15

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

16

See Terry L. Ross, 53 ECAB 570, 577 (2002).

17

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

18

See Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984); Joseph A. Antal, 34 ECAB 608, 612 (1983).

19

While appellant’s supervisors and coworkers might have disagreed with her assessment of the difficulty of the
work as a tax-examining assistant, they did not take issue with appellant’s basic description of the work duties of a

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decision on an analysis of the medical evidence. As the Office found that there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case
will be remanded to the Office for this purpose.20 After such further development as deemed
necessary, the Office should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that appellant has established employment factors in connection with her
claim for an employment-related emotional condition and that the case is remanded to the Office
to consider whether the medical evidence shows she sustained an emotional condition due to
these factors.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2009 and September 11, 2008 merit
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
to the Office for further proceedings consistent with this decision of the Board.
Issued: April 23, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

tax-examining assistant. Ms. Birgans-Brame acknowledged that the workload for tax-examining assistants
increased as the Chicago Appeals Office had been identified to process case closures from other offices within the
area. She also noted that appellant worked overtime at times and was subject to various deadlines.
20

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEMA EMERGENCY PREPAREDNESS &
RESPONSE, Atlanta, GA Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1511
Issued: November 28, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 28, 2017 appellant filed a timely appeal from a May 24, 2017 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the accepted March 16, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence after OWCP rendered its May 24, 2017 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 11, 2017 appellant, then a 62-year-old civil engineer, filed a traumatic injury
claim (Form CA-1) alleging that on March 16, 2017, while driving back to an office, he felt
dizzy, with headaches and uncontrolled blood pressure.3 He stopped work on March 16, 2017
and returned to work on March 17, 2017.
In a diagnostic report dated March 17, 2017, Dr. James Jen-Je Hsiao, a Board-certified
neuroradiologist, examined the results of a computerized tomography (CT) scan of appellant’s
brain without contrast. He reported an impression of a normal CT scan, with no mass,
hemorrhage, or evidence for acute infarction.
In another diagnostic report of the same date, Dr. Amir Paydar, a neuroradiologist,
examined the results of an x-ray of appellant’s chest. He reported an impression of a normal
chest x-ray.
By letter dated April 18, 2017, OWCP advised appellant that the evidence of record was
insufficient to support his claim. It noted that it had not received sufficient factual evidence to
establish his claim. OWCP further noted that appellant had not submitted medical evidence
containing a diagnosis related to his claim, as the March 17, 2017 reports demonstrated normal
findings. It afforded him 30 days to submit additional evidence and respond to its inquiries as to
the factual aspects of his case. Appellant did not respond.
By decision dated May 23, 2017, OWCP denied appellant’s claim. It found that he had
not submitted sufficient evidence to establish that the events alleged to have caused his injury
occurred as described, because he failed to provide a description of which job factors he alleged
had caused his injury. OWCP also found that appellant had not submitted a diagnosis in
connection with his claimed injury.
By decision dated May 24, 2017, OWCP issued a decision superseding the May 23, 2017
decision. It found that appellant had submitted a sufficient description of the event alleged to
have caused his injury, that of driving to an office, and as such, the factual component of fact of
injury was established. However, OWCP denied his claim finding that he had not submitted any
medical evidence containing a diagnosis in connection with his claimed injury. It, therefore,
concluded that he had not established an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
3

The alleged injury occurred at 3:00 p.m., appellant’s duty hours were from 8:00 a.m. to 5:00 p.m. The record
reflects that he was on temporary duty on the date of the alleged injury as his reporting duty station was in Atlanta,
GA and the incident occurred in Altomonte Springs, FL.
4

Supra at note 1.

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applicable time limitation period of FECA, that an injury5 was sustained in the performance of
duty as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.6
While on temporary-duty assignment, an employee is covered by FECA 24 hours a day
with respect to any injury that results from activities incidental to the temporary assignment. The
fact that an employee was on a special mission or in travel status during the time the condition
manifested itself does not raise an inference that the condition was causally related to the
incidents of employment.7
The claimant has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

A.F., Docket No. 14-1392 (issued October 21, 2014).

8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
11

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

3

ANALYSIS
On April 11, 2017 appellant filed a claim alleging that he sustained dizziness, headaches,
and uncontrolled blood pressure as a result of driving back to an office in Altamonte Springs, FL
on March 16, 2017 at 3:00 p.m. By decision dated May 24, 2017, OWCP denied his claim
finding that he had not submitted any medical evidence from a qualified physician containing a
diagnosis related to his claim.
The Board finds that appellant did not meet his burden of proof to establish an injury
causally related to the accepted March 16, 2017 employment incident because he did not submit
any medical evidence from a physician containing a medical diagnosis causally related to his
claim.13 Appellant submitted two diagnostic reports dated March 17, 2017 from Drs. Hsiao and
Paydar, which contained assessments of a normal CT scan of the brain and a normal chest x-ray,
respectively. As noted, part of appellant’s burden of proof includes the submission of
rationalized medical opinion evidence, based on a complete factual and medical background,
supporting a causal relationship between the employment incident and a diagnosed condition.14
The record contains no such medical evidence. The reports submitted do not contain any opinion
on causal relationship. The Board has long held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.15
As such, the Board finds that there is no medical evidence of record establishing an injury
causally related to the accepted employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted March 16, 2017 employment incident.

13

See W.W., Docket No. 09-2252 (issued June 4, 2010).

14

Supra note 11.

15

M.W., Docket No. 17-0097 (issued April 11, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2017 is affirmed.
Issued: November 28, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Eagle Pass, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1575
Issued: February 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 23, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated May 27, 2011 which denied his claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
shoulder injury in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 19, 2010 appellant, then a 42-year-old customs border patrol officer, filed a
traumatic injury claim, alleging that on August 16, 2010, while inspecting a container on the roof
of a truck, he fell and injured his left shoulder. He did not stop work.
By letter dated December 21, 2010, OWCP advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit such evidence, particularly a
comprehensive medical report from his treating physician which included a reasoned explanation
as to how the specific work factors or incidents identified by appellant had contributed to his
claimed injury.
Appellant was treated by Dr. Paul D. Lifland, an orthopedic surgeon, on
January 13, 2011. In a prescription for a magnetic resonance imaging (MRI) scan of the left
shoulder, he listed possible rotator cuff tear or impingement syndrome. In a January 13, 2011
state workers’ compensation work status report, Dr. Lifland noted that appellant injured his left
shoulder on August 16, 2010. He diagnosed tear of the rotator cuff and advised that appellant
could return to work without restrictions on January 13, 2011.
In a February 16, 2011 decision, OWCP denied appellant’s claim on the grounds that he
failed to establish fact of injury noting that the medical evidence failed to contain a medical
diagnoses in connection with the injury or events.
On February 25 and March 25, 2011 appellant requested reconsideration and submitted a
January 13, 2011 prescription note previously of record. In a February 11, 2011 report,
Dr. Lifland noted that appellant presented with signs of impingement of the left shoulder. He
diagnosed possible impingement syndrome or rotator cuff lesion and recommended an MRI
scan.
In a decision dated March 15, 2011, OWCP denied modification of the February 16, 2011
decision.
In an undated appeal request form, appellant sought reconsideration and submitted the
February 11, 2011 report of Dr. Lifland, previously of record. In a January 13, 2011 status
report, Dr. Lifland treated appellant for a left shoulder injury. Appellant reported being a
customs inspector who on August 16, 2010, while inspecting a luggage rack, fell injuring his left
shoulder. Dr. Lifland noted findings upon physical examination of full range of motion with
positive outlet impingement signs.
He diagnosed rotator cuff tear/tendinosis versus
impingement.
In a decision dated April 12, 2011, OWCP denied appellant’s claim finding that the
medical evidence did not establish that the diagnosed conditions were caused by work factors.
On April 20, 2011 appellant requested reconsideration. He submitted a report from
Dr. Lifland dated January 13, 2011 and a state workers’ compensation form previously of record.
Appellant also submitted a position description for a customs and border protection officer.
On May 27, 2011 OWCP denied modification of the April 12, 2011 decision.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of Dr. Lifland opinion.6
ANALYSIS
Appellant alleged that he sustained a left shoulder injury after falling from a truck while
inspecting a luggage rack on August 16, 2010. The Board notes that the evidence supports that
the incident occurred on August 16, 2010 as alleged. The Board finds, however, that the medical
evidence is insufficient to establish that appellant sustained a left rotator cuff tear, tendinitis or
2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

impingement syndrome causally related to the August 16, 2010 work incident. On December 21,
2010 OWCP advised him of the narrative medical evidence needed to establish his claim.
Appellant did not submit a rationalized medical report from Dr. Lifland, an attending physician,
that adequately explains how the August 16, 2010 work incident caused or aggravated his
claimed conditions.
On January 13, 2011 Dr. Lifland treated appellant for a left shoulder injury. Appellant
reported being a customs inspector who on August 16, 2010, while inspecting a luggage rack,
fell injuring his left shoulder. Dr. Lifland made a provisional diagnosis of rotator cuff
tear/tendinosis versus impingement. He did not provide any narrative opinion regarding whether
appellant’s condition was work related. Dr. Lifland failed to provide a rationalized opinion
regarding the causal relationship between any left shoulder injury and the factors of employment
believed to have caused or contributed to such condition.7 He did not explain the reasons why
the August 16, 2010 fall at work caused or contributed to the left shoulder condition. Moreover,
Dr. Lifland did not make a firm medical diagnosis. Therefore, this report is insufficient to meet
appellant’s burden of proof.
The other reports from Dr. Lifland are also insufficient to establish appellant’s claim. He
did not explain how appellant had a diagnosed shoulder condition causally related to the
August 16, 2010 work incident.8 In the January 13, 2011 state workers’ compensation work
status report, Dr. Lifland merely noted that appellant injured his left shoulder on August 16, 2010
and offered a diagnosis. He did not explain how appellant’s employment activities had caused or
aggravated any left shoulder condition. Therefore, these reports are insufficient to establish
appellant’s claim.
Consequently, the medical evidence is insufficient to establish that the August 16, 2010
incident caused or aggravated a diagnosed medical condition.
On appeal, appellant asserts that his condition is employment related and that reports
from Dr. Lifland support his left shoulder injury was work related. He questioned why his
requested MRI scan had not been authorized. As explained, appellant failed to submit sufficient
medical evidence addressing how the August 16, 2010 incident caused an injury. None of the
medical reports of record explain the reasons why the August 16, 2010 work incident caused or
contributed to this left shoulder condition. Since the claim has not been accepted, OWCP is not
obligated to provide for medical treatment.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
7

Id.

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

While OWCP is obligated to pay for treatment of employment-related conditions, the employee has the burden
of establishing that the expenditure is incurred for treatment of the effects of an employment-related injury or
condition. Kennett O. Collins, Jr., 55 ECAB 649, 654 (2004).

4

CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left shoulder injury causally related to his August 16, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Oklahoma City, OK, Employer
__________________________________________

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Appearances:
Edward Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1158
Issued: December 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 9, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$5,606.57 was created during the period January 14 to March 20, 2004; (2) whether the Office
properly determined that appellant was at fault in creating the overpayment; and (3) whether the
Office properly found that the overpayment should be recovered by deducting $250.00 from
appellant’s continuing compensation payments.
FACTUAL HISTORY
On a prior appeal the Board remanded the case to the Office to include the OWCP File
No. 162065235, as the issues in the case clearly involved this claim.1 Appellant has filed a
1

Docket No. 06-1489 (issued February 28, 2007).

number of claims, but the issues on this appeal concern two separate claims. On October 1, 1993
he filed an occupational claim alleging that he sustained bilateral wrist injuries as a result of his
federal employment as a mail handler. The Office accepted that appellant sustained bilateral
wrist sprains and bilateral de Quervain’s tenosynovitis. By decision dated March 28, 1996, the
Office issued a schedule award for an 18 percent left upper extremity impairment and 12 percent
for the right upper extremity. On March 4, 1997 the Office issued a schedule award for a 39
percent permanent impairment to the right arm. By decision dated August 1, 2001, the Office
issued a schedule award for a 12 percent left upper extremity permanent impairment and 8
percent for the right upper extremity.
By decision dated August 30, 2002, the Office issued a schedule award for an additional
21 percent permanent impairment to the left arm and 6 percent for the right arm. The period of
the award was 84.24 weeks from August 28, 2002 to April 8, 2004.
On September 30, 2003 appellant filed an occupational claim for a left shoulder injury.
The Office accepted this claim for a left rotator cuff tear. Appellant began receiving
compensation for temporary total disability as of January 14, 2004.
In a letter dated May 28, 2004, the Office notified appellant of a preliminary
determination that an overpayment of $5,606.57 was created. The Office stated that appellant
had received compensation for wage loss during a period he was receiving a schedule ward. The
Office found that appellant was at fault in creating the overpayment as he accepted payments he
knew or should have known were incorrect.
Appellant requested a hearing before an Office hearing representative, which was held on
March 22, 2005. By decision dated September 14, 2005, the hearing representative finalized the
preliminary overpayment determinations. The hearing representative indicated that appellant
was receiving schedule award payment for bilateral arm impairment from January 14 to
March 20, 2004, at the same time he received compensation for wage loss for the left shoulder, a
part of the left upper extremity. According to the hearing representative, appellant accepted
payments he knew or should have known were incorrect. With respect to repayment, the hearing
representative found that $250.00 should be deducted from appellant’s continuing compensation
payments.
Following the Board’s February 28, 2007 order, the Office issued a March 9, 2007
decision on the merits of the claim. The Office denied modification of the overpayment
determinations.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section provides:
“While an employee is receiving compensation under this subchapter or if he has
been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would continued,

2

he may not receive salary, pay or remuneration of any type from the United
States, except-(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the Veterans Administration (VA)
unless such benefits are payable for the same injury or the same death; and
(4) retired pay, retirement pay, retainer pay or equivalent pay for service in
the Armed Forces or the uniformed services, subject to the reduction of
such pay in accordance with section 5532(b) of tile 5, United States
Code.”
The Act further provides that “compensation” includes “the money allowance payable to
an employee or his dependents and any other benefits paid for from the Employees’
Compensation Fund, but this does not in any way reduce the amount of monthly compensation
payable for disability or death.”2
ANALYSIS -- ISSUE 1
The case record indicated that appellant was receiving compensation payment pursuant to
an August 30, 2002 schedule award. The period of the award was from August 28, 2002 to
April 4, 2004. Appellant filed a claim for a left shoulder injury and from January 14 to
March 20, 2004, he received compensation for wage loss pursuant to that claim.
As 5 U.S.C. § 8116 clearly states, an employee who is receiving compensation benefits is
not entitled to any other remuneration from the United States, except under the specified
circumstances. None of the circumstances are implicated in the present case. Appellant was
receiving compensation pursuant to the August 30, 2002 schedule award and during the period of
the award he would not be entitled to compensation for wage loss. While both the Office and
appellant argue over whether the schedule award was for the same part of the body, this is not
the issue. Section 8116 does not make a distinction between compensation received for the same
injury and compensation received for different injuries.3 If appellant is receiving compensation
under the Act for any employment injury, he or she is not entitled to remuneration of any type
from the United States, unless one of the specific exceptions is applicable.
The Board therefore finds that during the period January 14 to March 20, 2004 appellant
was not entitled to compensation for wage loss pursuant to the left shoulder claim, because he
was currently receiving compensation pursuant to a schedule award. The Office indicated that
appellant received $5,606.57 in wage-loss compensation during the applicable period and there is
no contrary evidence. This amount represents an overpayment of compensation.
2

5 U.S.C. § 8101(12).

3

The reference to the “same injury” occurs with respect to VA benefits.

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act4 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”5 No waiver of an overpayment is possible if the claimant is at fault in
creating the overpayment.6
On the issue of fault 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in that he accepted a payment he knew or
should have known was incorrect. There is no evidence in the record, however, to support the
Office’s finding. No specific evidence was cited by the Office to show why appellant knew or
should have known the compensation for wage-loss payments he received from January 14 to
March 20, 2004 were incorrect. The Office did not notify appellant of the provisions of 5 U.S.C.
§ 8116 and, as the above discussion illustrates, the Office itself did not fully understand the
relevant law with respect to receipt of compensation payments pursuant to a schedule award and
compensation for wage loss. There is no probative evidence establishing that appellant accepted
payments he knew or should have known were incorrect.
The case will be remanded to the Office for a proper decision with respect to waiver of
the overpayment. After such further development as the Office deems necessary, it should issue
an appropriate decision. The Board will not address the repayment of compensation issue at this
time.
CONCLUSION
Appellant received compensation pursuant to a schedule award at the same time he
received compensation for wage loss and an overpayment of $5,606.57 was created. There is no
evidence that appellant was at fault in creating the overpayment and the case will be remanded
for further development as to waiver of the overpayment.

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8129(b).

6

Gregg B. Manston, 45 ECAB 344 (1994).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2007 is affirmed with respect to an overpayment of
$5,606.57. The decision is set aside and the case remanded for further action consistent with this
decision of the Board with respect to waiver of the overpayment.
Issued: December 17, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Atlanta, GA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1914
Issued: August 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2010 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ (OWCP) decision dated January 15, 2010. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a low back injury in the performance of duty on
May 24, 2008.
FACTUAL HISTORY
Appellant, then a 36-year-old correctional officer, filed a claim for benefits on May 24,
2008, alleging that she injured her lower back, right knee, right shoulder and right upper arm
when she slipped on a puddle of water while descending a flight of stairs.
1

5 U.S.C. § 8101 et seq.

Appellant submitted form reports dated May 27 and June 10, 2008 which indicated that
she was experiencing lower back, right knee and right shoulder pain and that she had sustained
an injury on May 24, 2008. The slips were signed by a physician’s assistant.
By letter dated June 3, 2008, OWCP advised appellant that it required additional factual
and medical evidence to determine whether she was eligible for compensation benefits. It asked
her to submit a comprehensive medical report from her treating physician describing her
symptoms and the medical reasons for her conditions and an opinion as to whether her claimed
conditions were causally related to her federal employment. OWCP advised appellant that all
medical reports submitted had to be signed or countersigned by a physician. It requested that she
submit the additional evidence within 30 days.
By decision dated July 15, 2008, OWCP denied appellant’s claim finding that she did not
submit medical evidence sufficient to establish that she sustained an injury in the performance of
duty on May 24, 2008. It stated that it had informed her that all medical evidence submitted had
to be signed or countersigned by a physician; however, the reports she provided were signed by a
physician’s assistant. OWCP further found that none of the reports contained a diagnosis of the
claimed conditions.
By letter dated September 11, 2008, appellant requested reconsideration. She stated that
her treating physician had co-signed the reports she submitted which were signed by physicians’
assistants. Appellant also stated that she was submitting a Form CA-16 report which contained
diagnoses for injuries she sustained during the May 24, 2008 work incident.
Appellant submitted a May 28, 2008 lumbar x-ray report from a radiologist, received by
OWCP on September 17, 2008, which indicated that she had mild dextroscoliosis of the lumbar
spine.
In a Form CA-16 dated August 12, 2008, received by OWCP on September 17, 2008,
Dr. Fred K. Hood, a Board-certified family practitioner, noted appellant’s history of injury
caused by slipping and falling on May 24, 2008 and indicated that she sustained right knee and
right shoulder sprains due to this employment-related activity. Appellant also resubmitted form
reports dated May 27 and 28, June 10 and July 3, 2008, which were co-signed by Dr. Hood.
By decision dated November 14, 2008, OWCP modified its July 15, 2008 decision,
finding that appellant submitted medical evidence sufficient to establish that she sustained injuries
to her right knee, right shoulder and right upper arm on May 24, 2008. It found, however, that
she did not sustain a low back injury as a result of the May 24, 2008 work incident.
By letter dated December 29, 2008, appellant requested reconsideration of the
November 14, 2008 decision.
Appellant submitted a July 10, 2009 treatment slip from Dr. Hood which indicated that he
was treating her for shoulder, knee and back pain. She also submitted several reports from a
physician’s assistant.
By decision dated January 21, 2009, OWCP denied modification of the November 14,
2008 decision.
2

In a January 27, 2009 report, Dr. Mitzi Clayton, a Board-certified family practitioner,
stated that she examined appellant after a fall on steps on May 24, 2008. She also examined her
on June 10 and July 3, 2008. Dr. Clayton noted complaints of low back pain, right knee pain and
right shoulder pain. She stated that on examination she detected a knot in the injured area of
appellant’s back and had her undergo x-ray testing. Dr. Clayton diagnosed back pain, diagnosis
code 724.2, with muscle spasms noted as being caused by the fall at work. She found no
documentation of any previous back-related injuries. Dr. Clayton referred appellant to a
neurologist for further evaluation and treatment.
On January 21 and February 9, 2009 appellant requested reconsideration.
By decision dated April 2, 2009, OWCP denied modification.
On April 2, 2009 appellant requested reconsideration.
In a July 15, 2009 report, Dr. Cedrella C. Jones-Taylor, a specialist in internal medicine,
reviewed a magnetic resonance imaging (MRI) scan dated July 13, 2009. She stated that the
MRI scan showed minimal degenerative wear and tear changes but no spinal cord or nerve root
compression. Dr. Jones-Taylor advised that there was evidence of degenerative disc disease at
the T1-2 or L1 levels, with no central canal stenosis or foraminal narrowing at any level and no
significant degenerative disc disease in the lumbar spine.
By decision dated September 24, 2009, OWCP denied modification.
By letter dated November 3, 2009, appellant requested reconsideration.
In an October 13, 2009 report, received by OWCP on November 13, 2009, Dr. Clayton
essentially reiterated her previously stated findings and conclusions. She stated that appellant
had been referred to a neurologist for further evaluation and treatment. Dr. Clayton advised that
appellant underwent an MRI scan of her back which showed significant injury sustained to the
T1-2/L1 areas of her spine; she asserted that appellant had minimal degenerative/wear and tear
changes due to her employment injury.
By decision dated January 15, 2010, OWCP denied modification, after merit review of
the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,

2

Id. at §§ 8101-8193.

3

and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant claimed injury on May 24, 2008 when she slipped on water while descending
stairs and fell. The record establishes that she was seen at the Eagle’s Landing Family Practice
on May 28, 2008. Dr. Clayton, a Board-certified family practitioner, submitted several reports
that listed an accurate history of the incident at work. She noted that appellant was seen for low
back, knee and right shoulder pain. During examination a knot was felt in the area of the injured
back and an x-ray was performed. Dr. Clayton listed the diagnostic code of low back pain
(724.2) with muscle spasms noted. Appellant was subsequently seen on June 10 and July 3,
2008 with no relief and referred to consult a neurologist.
An MRI scan of appellant’s back was performed on July 13, 2009 by Dr. Jones-Taylor,
who reported that there was evidence of degenerative disc disease at T12/L1, no central canal
stenosis or foraminal narrowing at any level without significant evidence of disc disease.
Dr. Clayton followed up in an October 13, 2009 report, again addressing the history of injury,
findings on examination and stating that the MRI scan showed injury sustained to the T12/L1

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Id.

5

See Joe T. Williams, 44 ECAB 518, 521 (1993).

6

Id.

4

region of the spine. She attributed appellant’s minimal degenerative findings to the history of
injury.
The Board finds that, while the reports of Dr. Clayton and the Eagle’s Landing Family
Practice are not sufficient to establish appellant’s claim, they are sufficient to require further
development of the medical evidence. The evidence submitted provided an accurate history of
the May 24, 2008 incident together with findings from a contemporaneous physical examination
performed on May 28, 2008. While the listed diagnosis was low back pain (724.2), Dr. Clayton
advised that a knot was felt on examination of the back and that muscle spasms were noted.
Diagnostic testing was obtained that included x-rays and the July 13, 2009 MRI scan that showed
finding at T12/L1. Dr. Clayton reviewed the diagnostic tests and attributed the T12/L1
degenerative disc disease to the May 24, 2008 fall at work. While her opinion is not fully
rationalized in light of the year between the work incident to the diagnostic testing of July 13,
2009, the reports of Dr. Clayton generally support appellant’s claim of injury.7 The Board will
remand the case to OWCP to request clarification as to the diagnostic code provided, findings of
sprain or strain on examination and the nature of appellant’s low back condition. After such
further development as it deems appropriate, OWCP should issue a merit decision on appellant’s
claim of injury.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

See John J. Carlone, 41 ECAB 354 (1989). The Board has held that a delay in diagnostic testing may diminish
the probative value of a medical opinion. Linda L. Mendenhall, 41 ECAB 532 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded in accordance with this
decision.
Issued: August 8, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE TREASURY,
FINANCIAL MANAGEMENT,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-625
Issued: October 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 30, 2012 appellant filed a timely appeal of the August 18, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
bilateral arm and right knee conditions on April 6, 2011 in the performance of duty.
FACTUAL HISTORY
On April 7, 2011 appellant, then a 47-year-old management and program analyst, filed a
traumatic injury claim alleging that at 2:30 p.m. on April 6, 2011 she broke her right forearm and
1

5 U.S.C. § 8101 et seq.

scraped her right knee and left wrist when she stumbled and fell while walking to Choteau
Trafficway as part of an event sponsored by the employing establishment. She caught herself
with her hands and arm as she fell to her knees and rolled to her side. Appellant was taken to a
hospital emergency room for treatment. Her tour of duty was from 6:30 a.m. to 4:00 p.m.,
Monday through Friday.
In medical reports dated April 6 through May 17, 2011, Dr. Steven B. Smith, an attending
Board-certified orthopedic surgeon, advised that appellant had a radial head fracture
nondisplaced consolidated radial neck fracture with a sprain of the right elbow. He
recommended occupational therapy to treat the diagnosed conditions. On April 25, 2011
Dr. Smith released appellant to return to work with restrictions. The reports from occupational
therapists addressed the treatment of appellant’s sprain of the right elbow and right wrist
symptoms from May 20 through June 16, 2011.
By letter dated June 17, 2011, OWCP requested that the employing establishment answer
questions regarding the April 6, 2011 incident. It also sent a copy of the letter to appellant.
In an undated letter, appellant reiterated that the employing establishment sponsored the
American Heart Association’s National Start Walking Day. She was walking with two women
and following Pearl Clark, a walk of lead, on a designated route towards Choteau Trafficway
when she fell down. Appellant stated that attendance at the walk was not mandatory, but highly
encouraged. No use of leave was required to attend the event. After the fall, appellant was
assisted off the ground and completed the walk. She returned to her office building where she
experienced pain.
In a June 29, 2011 letter, the employing establishment stated that it sponsored the April 6,
2011 event as part of National Start Walking Day. It provided substantial support, equipment
and direction, organized or controlled the activity or event so that it would derive material
benefit by providing warm up time, the walking route and walk leaders. The employing
establishment contended that the event was not mandatory for employees. Appellant was not
required to participate in the event or take leave to participate in it. At the time of injury, she
was walking in the sponsored walking event as part of National Start Walking Day. Appellant
was walking on the designated route westbound from the intersection of North Jackson Avenue
onto North East 33rd Terrance in Kansas City, Missouri.
In an August 18, 2011 e-mail, the employing establishment stated that an accompanying
time sheet for the period March 27 to April 9, 2011 revealed that on April 6, 2011 appellant was
given one hour of administrative/excused absence to seek treatment at a local emergency room.
The leave was not used to cover her walk.
In an August 18, 2011 decision, OWCP denied appellant’s claim, finding that her April 6,
2011 injuries did not arise in the performance of duty. It found that the National Start Walking
Day activity did not take place on the premises of the employing establishment during a lunch or
recreational period as a regular incident of her employment. OWCP further found that the
employing establishment did not expressly or impliedly require participation in the activity
which was not part of its services. It did not derive any substantial benefit from appellant’s
participation in the walk.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
Section 8102(a) of FECA provides for payment of compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of her duty.4
This phrase is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws; namely, arising out of and in the course of employment.5 Whereas arising
out of the employment addresses the causal connection between the employment and the injury,
arising in the course of employment pertains to work connection as to time, place and activity.6
For the purposes of determining entitlement to compensation under FECA, arising in the course
of employment, i.e., performance of duty must be established before arising out of the
employment, i.e., causal relation, can be addressed.7
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employer, by expressly or
impliedly requiring participation, or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) the employer derives substantial direct
benefit from the activity beyond the intangible value of improvement in employee health and
morale that is common to all kinds of recreation and social life.8
ANALYSIS
Appellant broke her right forearm and scraped her right knee and left arm on April 6,
2011 during a recreational walk in recognition of the American Heart Association’s National
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

5 U.S.C. § 8102(a).

5

See Bernard E. Blum, 1 ECAB 1 (1947).

6

See Robert J. Eglinton, 40 ECAB 195 (1988).

7

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

8

S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011);
Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); William D. Zerillo, 39
ECAB 525 (1988); Kenneth B. Wright, supra note 7. See also A. Larson, The Law of Workers’ Compensation
§ 22.00 (2012).

3

Start Walking Day. She and her employer acknowledged that the walk took place on designated
streets in the local community and not on the premises. The claimed injuries are not covered
under the first criterion for recreational and social activities as the injuries did not occur on the
employing establishment premises, but instead occurred on a public street, located off the
employing establishment premises.
The second criterion is whether the employing establishment required appellant to
participate in the walk or otherwise made the activity part of her services as an employee.
Appellant noted that, although the employing establishment did not mandate participation in the
walk, it encouraged participation. When the degree of the employing establishment involvement
descends from compulsion to mere sponsorship or encouragement, the tests include whether it
sponsored or financed the activity and whether participation was voluntary.9 The record
establishes that the employing establishment sponsored the walk and provided warm up time,
and walk leaders. Appellant’s participation in the walk was voluntary and not an express or
implied requirement of her employment. She was not required to utilize leave to participate in
the walk. The employing establishment granted appellant one hour of administrative/excused
leave to seek medical treatment following injury. The Board has held that, if attendance at an
event is voluntary and there is no direct, substantial benefit to the employing establishment, this
outweighs its sponsorship of the event when determining whether an activity occurred in the
course of employment.10 The Board finds that the walk activity was not one which appellant was
compelled to attend. Participation in the social activity was not part of her job or an activity for
which she would be evaluated it was a voluntary activity.
Appellant also failed to satisfy the third criterion that the employing establishment
derived substantial direct benefit from the April 6, 2011 walk beyond the intangible value of
improvement in employee social life and morale. No evidence of record suggests that the social
activity in this case was in any way related to the employing establishment’s business.11
Consequently, the Board finds that the evidence of record does not establish that the employing
establishment derived substantial direct benefit from the activity beyond the intangible value of
improvement in health and morale that is common to all kinds of recreation and social life.12
As appellant has not shown any nexus between her employment and the walk, the Board
finds that she has not established that the April 6, 2011 injuries occurred in the performance of
duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

Kenneth B. Wright, supra note 7.

10

Barbara Roy, 42 ECAB 960 (1991).

11

Anna M. Adams, 51 ECAB 149 (1999).

12

Larson, supra note 8 at § 22.05(3).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained bilateral arm and right knee conditions in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
SECURITY/CONSULAR AFFAIRS,
Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 06-1667
Issued: January 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 17, 2006 appellant filed a timely appeal from the June 8, 2006 nonmerit decision
of the Office of Workers’ Compensation Programs denying her reconsideration request as
untimely filed and failing to demonstrate clear evidence of error. As the most recent Office
merit decision was issued on March 14, 2005, more than one year prior to the filing of this
appeal, the Board does not have jurisdiction to review the merits of the case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly found that appellant’s May 16, 2006 request for
reconsideration was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before this Board. On August 17, 1989 appellant, then a
34-year-old data transcriber, filed a traumatic injury claim alleging that, on June 21, 1989, she
hurt her back and neck as she was lifting boxes in the mailroom. She stopped work following

the incident and did not return. On November 6, 1989 the Office accepted that appellant
sustained a cervical and lumbosacral strain. In a decision dated January 27, 1994, the Board
found that the Office improperly terminated benefits effective March 7, 1993,1 and compensation
was reinstated.
On November 29, 2004 appellant began part-time employment as a bank teller. By
decision dated March 14, 2005, the Office reduced her compensation effective February 20, 2005
based upon her actual earnings.
By letter dated May 16, 2006, appellant requested reconsideration. She submitted no new
evidence with her request, but contended that the reduction in compensation caused her hardship,
that she was not working at this time, that she was an evacuee of Hurricane Katrina and still had
trouble with her back.
By decision dated June 8, 2006, the Office denied appellant’s request for reconsideration.
It found that the request was untimely filed and did not demonstrate clear evidence of error.2
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Act states:
“The Secretary of Labor may review an award for or against compensation at any
time on [her] own motion or on application. The Secretary, in accordance with
the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Board has found that the imposition of this oneyear limitation does not constitute an abuse of the discretionary authority granted the Office
under 5 U.S.C. § 8128(a).4

1

Docket No. 93-1980 (issued January 27, 1994). The facts and the history, as stated in the prior appeal, are
incorporated by reference.
2

To the extent that appellant is seeking modification of the March 14, 2005 wage-earning capacity, the Office did
not adjudicate this issue and it is not presently before the Board on appeal.
3

5 U.S.C. § 8128(a).

4

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

2

The Office may not deny an application for review based solely on the grounds that the
application was not timely filed. For a proper exercise of the discretionary authority granted
under 5 U.S.C. § 8128(a), when an application for review is not timely filed, the Office must
undertake a limited review to determine whether the application shows clear evidence of error.5
20 C.F.R. § 10.607(b) provides: “[The Office] will consider an untimely application for
reconsideration only if the application demonstrates clear evidence of error on the part of [the
Office] in its most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.6 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.7 It is not enough merely to show that
the evidence could be construed to produce a contrary conclusion.8 This entails a limited review
by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office.9 To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical evidence or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office
decision.10 The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.11
ANALYSIS
The most recent merit decision by the Office was issued on March 14, 2005. Appellant
had one year from the date of that decision to request reconsideration but did not do so until
May 16, 2006. The Board finds that the Office properly determined that appellant’s application
for review was not timely filed within the one-year time limitation set forth in 20 C.F.R.
§ 10.607(a).
The Office also properly found that appellant’s request for reconsideration did not
demonstrate clear evidence of error. In order to establish clear evidence of error, the newly
submitted evidence must be relevant to the issue which was decided by the Office and must be
5

Charles J. Prudencio, 41 ECAB 499 (1990); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied,
41 ECAB 458 (1990).
6

See Dean D. Beets, 43 ECAB 1153 (1992).

7

See Leona N. Travis, 43 ECAB 227 (1991).

8

Id.

9

Nelson T. Thompson, 43 ECAB 919 (1992).

10

Leon D. Faidley, Jr., supra note 4.

11

Gregory Griffin, supra note 5.

3

positive, precise and explicit that the Office committed an error. Appellant presented no new
evidence with her request for reconsideration. Instead, she merely argued that she currently was
in a bad financial situation and that she still had back pain. This is not sufficient to show that the
Office committed clear evidence of error in making its decision to reduce her compensation
benefits based on her actual earnings as a bank teller.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2006 is affirmed.
Issued: January 16, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees' Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees' Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees' Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Knoxville, TN, Employer
__________________________________________

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Appearances:
Nolan Dennis, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1662
Issued: March 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 5, 2011 appellant filed a timely appeal of an April 4, 2011 decision of the Office
of Workers’ Compensation Programs (OWCP), denying his application for reconsideration
without merit review of the claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the April 4, 2011
nonmerit decision. Since more than 180 days has elapsed between the last merit decision on
November 12, 2010 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s January 5, 2011
application for reconsideration was insufficient to warrant a merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2001 appellant, then a 53-year-old letter carrier, filed an occupational
claim, Form CA-2, alleging that he sustained shoulder injuries as a result of his federal
employment. OWCP accepted the claim for bilateral impingement syndrome and left shoulder
glenoid labrum tear. Appellant underwent left shoulder surgery on March 14, 2002 and returned
to work in a light-duty position.
On February 22, 2007 appellant filed a claim for a recurrence of disability. The record
indicates that he underwent additional left shoulder surgery on May 15, 2007. Attending
Physician Dr. William Hovis indicated that appellant could return to modified duties on
August 30, 2007.
By decision dated December 11, 2008, OWCP determined that appellant was not entitled
to a schedule award. In a report dated July 7, 2009, Attending Physician Dr. Susan Pick opined
that he had a 10 percent left arm permanent impairment and an 8 percent right arm impairment.
She indicated that appellant reached maximum medical improvement on December 20, 2007.2
In a report dated October 23, 2009, OWCP’s medical adviser found that appellant had a 10
percent left arm impairment and a 9 percent right arm permanent impairment. He stated that the
date of maximum medical improvement was July 7, 2009, the date of Dr. Pick’s report.
In a decision dated December 1, 2009, OWCP vacated the December 11, 2008 decision.
A pay rate memorandum dated December 1, 2009 indicated that appellant’s pay rate on May 15,
2007 was $959.77 a week. On December 4, 2009 OWCP issued a schedule award for a
permanent impairment of 10 percent for the left arm and 9 percent to the right arm. The period
of the award was 59.28 weeks from July 7, 2009. The weekly pay rate for compensation
purposes was $959.77.
By letter dated January 2, 2010, appellant, through his representative, requested
reconsideration. He argued that the pay rate should be determined at the date of maximum
medical improvement.
In a decision dated January 14, 2010, OWCP denied the reconsideration request without
merit review of the claim. Appellant again requested reconsideration by letter dated
February 28, 2010. He again argued that the pay rate should be based on pay rate as of
July 7, 2009.
By decision dated May 4, 2010, OWCP reviewed the case on its merits. It found that the
December 4, 2009 decision should be modified as to the date of maximum medical
improvement, as Dr. Pick had established a date of December 20, 2007.3 As to the pay rate,
OWCP affirmed that the correct date as May 15, 2007, the date of a recurrence of disability.
2

In a report dated December 20, 2007, Dr. Hovis indicated that appellant had reached maximum medical
improvement.
3

OWCP incorrectly stated in its cover letter that the date was December 20, 2009, but the accompanying
memorandum used the date, December 20, 2007.

2

In a decision dated May 11, 2010, OWCP issued a schedule award for a 10 percent left
arm and 9 percent right arm permanent impairment. The period of the award was 59.28 weeks
commencing December 20, 2007.
In a letter dated June 3, 2010, appellant again requested reconsideration. He argued that
OWCP had ignored medical evidence and based its pay rate decision on the vacated
December 11, 2008 decision. Appellant again stated that the pay rate date should be
July 7, 2009.
By decision dated July 23, 2010, OWCP reviewed the case on its merits and denied
modification. In a letter dated September 10, 2010, appellant requested reconsideration. He
stated that May 15, 2007 was the date of surgery, not a recurrence of disability. Appellant
referred to OWCP regulations at 20 C.F.R. § 10.403(d) and stated that it was reasonable to apply
a pay rate on July 7, 2009.
In a decision dated November 12, 2010, OWCP reviewed the case on its merits and
denied modification. It noted that the pay rate for a schedule award is determined under 5 U.S.C.
§ 8101(4).
On November 23, 2010 OWCP received a November 18, 2010 request for an oral
hearing. By decision dated December 16, 2010, it found that, since appellant had already
requested reconsideration, he was not entitled to a hearing as a matter of right. OWCP stated
that the issue in the case could equally well be addressed through the reconsideration process.
By letter dated January 5, 2011, appellant requested reconsideration. He again stated that
the December 11, 2008 decision had been vacated, noted the findings of OWCP in the
November 11, 2010 decision and referred to OWCP regulations. Appellant concluded that
OWCP had discretion to choose between “the various pay rates of the period being considered”
and to select the highest.
In a decision dated April 4, 2011, OWCP determined that the application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”5 Section
10.608(b) states that any application for review that does not meet at least one of the

4

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
5

20 C.F.R. § 10.606(b)(2).

3

requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.6
ANALYSIS
In the present case, appellant submitted an application for reconsideration dated
January 5, 2011. He believes that OWCP erred in determining the pay rate for his schedule
award. To be entitled to a review of the merits of the compensation issue presented, appellant
must meet one of the standards under 20 C.F.R. § 10.606(b)(2) noted above. With respect to a
showing that OWCP erroneously applied or interpreted a specific point of law, he did not meet
this standard. Appellant referred to OWCP regulations at 20 C.F.R. § 10.403(d), but this is a
regulation regarding how to calculate wage-earning capacity under 5 U.S.C. § 8115.7 OWCP has
not made a determination of wage-earning capacity under 5 U.S.C. § 8115 and this regulation is
not relevant to the issue presented. The applicable statute regarding pay rate for a schedule
award, as OWCP as explained to appellant, is 5 U.S.C. § 8101(4).8 Appellant did not show that
OWCP erroneously applied or interpreted a specific point of law.
With respect to a relevant legal argument not previously considered by OWCP, the Board
notes that appellant has filed numerous applications for reconsideration on the pay rate issue.
Appellant has argued that the applicable pay rate should be July 7, 2009, the date of examination
by Dr. Pick. The arguments presented in the January 5, 2011 letter do not constitute new and
relevant legal arguments. Appellant continues to assert that OWCP is relying on a December 11,
2008 decision that was vacated. The December 11, 2008 decision made no findings on the pay
rate issue, as it held appellant was not entitled to a schedule award. There is no evidence that
OWCP was relying on that decision in any subsequent decision. Appellant states that OWCP has
discretionary authority to determine between various pay rates, but the relevant statute is 5
U.S.C. § 8101(4), which provides that monthly pay is the pay at the time of injury, the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after return to regular full-time employment, whichever is greater.
It is not an issue of exercising a discretionary authority, it is an issue of proper application of the
statute. OWCP has explained that it used the pay rate on May 15, 2007, the date of recurrent
disability due to surgery. The reopening of a case is not required where the legal contention has
no reasonable color of validity.9 Appellant has not provided a new and relevant legal argument
with his application for reconsideration.

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

20 C.F.R. § 403(d) states that wage-earning capacity in terms of percentage is computed by dividing earnings by
the current pay rate for the date of injury job. OWCP may use any convenient date for making the comparison as
long as both wage rates are in effect on the date used for comparison. 5 U.S.C. § 8115 provides that wage-earning
capacity is determined based on actual earnings, if actual earnings fairly and reasonably represent wage-earning
capacity, or if they do not, with due regards to enumerated factors.
8

See Russell E. Wageneck, 46 ECAB 653 (1995).

9

Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louise, 54 ECAB 783 (2003).

4

As to the submission of new, relevant and pertinent evidence, appellant did not meet this
standard. He did not submit any new evidence with his application for reconsideration.
Accordingly, the Board finds appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). OWCP properly denied the application for reconsideration without merit review.
CONCLUSION
The Board finds that OWCP properly denied the application for reconsideration without
merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 4, 2011 is affirmed.
Issued: March 5, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5