United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
___________________________________________ )
L.B., Appellant

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

Docket No. 14-387
Issued: June 6, 2014

Case submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 6, 2013 appellant filed a timely appeal from a June 11, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), denying her request for
further merit review of her claim. As the last merit decision was issued on May 30, 2012 more
than 180 days before the filing of this appeal, the Board does not have jurisdiction over the
merits. 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 3, 2002, appellant, then a 35-year-old full-time mail processor, sustained
injury when her left knee popped at work. She stopped work on October 4, 2002. OWCP
accepted the claim for a sprain and tear of the medial meniscus of the left knee.2 Appellant
underwent arthroscopy on February 12, 2003. She received wage-loss benefits.3 On June 8,
2004 OWCP terminated appellant’s wage-loss and medical benefits.
Appellant claimed a schedule award. On May 13, 2010 OWCP granted her a schedule
award for three percent permanent impairment of the left leg. The award covered 8.64 weeks
from October 1 to November 30, 2008. The award was based on the December 10, 2009 opinion
of appellant’s physician, Dr. Antony M. George, Board-certified in emergency medicine and an
OWCP medical adviser’s March 8, 2010 report.
On June 18, 2010 appellant requested a hearing, which was held on June 8, 2011. She
requested acceptance of an aggravation of arthritis of the left knee. Appellant believed that she
should receive an award for 40 percent impairment. In letters dated April 1 and May 25, 2011,
she reiterated her request to expand her claim for an aggravation of arthritis of the left knee. In a
letter dated August 8, 2011 appellant argued that she was entitled to have her arthritis and sprain
rated for a schedule award and submitted additional medical evidence.
In a July 28, 2011 report, Dr. George noted that appellant had a torn medial meniscus
with degenerative changes found on a magnetic resonance imaging scan. Appellant required
surgery in February 2003. Dr. George opined that the injury of pushing a cart and twisting her
knee caused a significant aggravation of her preexisting degenerative arthritis and she was left
with residual loss of range of motion.
By decision dated September 20, 2011, a hearing representative affirmed the May 13,
2010 schedule award decision. Regarding expansion of appellant’s claim, the hearing
representative found that OWCP should develop the claim.
In a letter dated January 3, 2012, appellant requested reconsideration. She repeated her
request for expansion of her claim and a higher schedule award. In a May 31, 2011 report,
Dr. Ashok S. Patil, Board-certified in preventive medicine, diagnosed strain of the left knee and
tear of the medial meniscus of the left knee.
By decision dated May 30, 2012, OWCP denied modification of the prior schedule
award. While appellant argued for a higher schedule award under the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), (6th ed. 2009); she was applying her own lay interpretation of what she believed she was
entitled to under the A.M.A., Guides. Regarding expansion of her claim, it found in a June 8,

2

Appellant has a preexisting condition of osteoarthritis of the left knee.

3

The record reflects that, on November 4, 2002, appellant was approved for disability benefits under social
security.

2

2004 decision, OWCP made a finding that the effects of her injury had ceased and that she no
longer had any injury-related disability remaining.
On May 8, 2013 appellant requested reconsideration. She contended that her claim be
accepted for permanent aggravation of patellofemoral arthritis due to the work-related injury on
October 3, 2003. Appellant also requested an increase in her schedule award as her physician
found 40 percent left leg impairment.
In a March 11, 2013 report, Dr. Tim Nice, a Board-certified orthopedic surgeon, noted
that in 2002 appellant sustained an injury to her left knee while pushing a heavy cart which
became stuck. Appellant fell to the ground with her whole body, but the left leg did not move.
She related that she felt a pop and subsequently had surgery for a partial medial meniscectomy
on February 12, 2003. Dr. Nice noted that following surgery, appellant continued to have pain.
The other examining physicians of record had noted that she had moderately severe arthritis in
her left knee but did not indicate whether she had an aggravation of a preexisting condition.
Dr. Nice opined that “[c]ertainly falling on to her left knee and twisting the left leg would be an
aggravation of an underlying degenerative condition. I must also comment that [appellant] had
no knee issues prior to this injury on [October 2, 2002].” He indicated that appellant had worked
for the employing establishment for approximately 15 years. Appellant worked long hours and
did moderately heavy work. Dr. Nice reviewed her work status and her job explanation in some
detail and explained that, “[d]espite weighing over 300 pounds, [appellant] was able to do her
work without time off, which suggests to me that she did not have any significant joint issues
until this accident. He explained that he x-rayed appellant on March 11, 2013 and found that the
undersurface of the patella, revealed findings to include moderately severe degenerative changes
in the left knee and findings of patellofemoral arthritis.
On clinical examination Dr. Nice indicated that he discovered a grinding sensation when
appellant extended and flexed her knee. Appellant had full extension and could flex to about 110
degrees but had tenderness and moderately severe patellofemoral crepitation. Dr. Nice explained
that, despite the fact that she had arthritis and ongoing symptoms, no mention was made of an
aggravation of a preexisting condition. He stated that appellant subsequently fell because her left
knee buckled and she injured her right knee. Dr. Nice opined that she “had a condition that was
overlooked, although everybody recognized the problem.” In an April 5, 2013 report, he
reviewed the surgical note from February 12, 2003. Dr. Nice noted that an additional diagnosis
should be added to appellant’s claim, opining that “within a reasonable degree of medical
certainty” she not only sustained a torn medial meniscus of the left knee, but she also sustained
an aggravation of the underlying severe arthritis of her left knee. In an April 12, 2013
addendum, Dr. Nice added that the aggravation was permanent.
By decision dated June 11, 2013, OWCP denied appellant’s request for reconsideration
without a review of the merits on the grounds that the evidence did not support that OWCP
erroneously applied or interpreted a point of law.

3

LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[OWCP].”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
Appellant disagreed with the denial of her claim for an increased schedule award and the
denial of her request to expand her claim and requested reconsideration on May 28, 2013. The
underlying issues on reconsideration were whether she was entitled to an increased schedule
award and whether OWCP expanded the claim to include aggravation of aggravation of arthritis
of the left knee.
Regarding her claim for an increased schedule award, appellant did not provide any
relevant or pertinent new medical evidence to the issue of whether she was entitled to a great
impairment. Instead, she contended that her schedule award was improperly calculated by the
medical adviser. Appellant stated that her review of the A.M.A., Guides supported that she was
entitled to a greater award. The Board has held that the degree of functional impairment to a
scheduled member is a medical question that can only be established by probative medical
opinion.7 As a lay person appellant is not competent to render a medical opinion and, therefore,
her contention has no probative value on a medical issue.8 The Board notes that the medical
evidence submitted with her request does not offer any opinion as to whether she sustained an
increase in impairment to her left leg.
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b).

6

Id. at § 10.608(b).

7

L.G., Docket No. 09-1517 (issued March 3, 2010).

8

See James A. Long, 40 ECAB 538 (1989).

4

The Board finds that the case is not in posture regarding appellant’s request to expand her
claim. In its September 20, 2011 decision, the hearing representative directed OWCP to develop
the record with regard to whether an aggravation of the left knee arthritis should be accepted. In
its May 30, 2012 decision, OWCP relied on its prior determination of June 8, 2004 that the
effects of appellant’s injury had ceased and that she no longer had any injury-related disability.
It noted that she should follow her appeal rights. OWCP did not develop the claim to determine
whether it should be accepted for an aggravation of left knee arthritis as instructed.9
The Board notes that appellant submitted new reports from Dr. Nice, who provided an
opinion on the causal relationship of her left knee arthritis to her accepted injury. In the June 11,
2013 decision, OWCP found that the reports were not sufficient to warrant further merit review.
The Board finds that the reports constitute relevant and pertinent new evidence related to
whether appellant’s left knee arthritis was due to the accepted injury. OWCP was obligated to
conduct a merit review of the claim.10 Reopening a claim for merit review does not require a
claimant to submit all evidence which may be necessary to discharge his or her burden of
proof.11
On remand, OWCP shall conduct a merit review with regard to whether appellant’s claim
should be accepted for aggravation of left knee arthritis as work related. After such further
development as is deemed necessary, it shall issue an appropriate merit decision.
On appeal, appellant noted that there were errors in her schedule award. As noted, she
did not submit relevant new medical evidence regarding any request for an increased schedule
award. The Board also notes that appellant may request an increased schedule award based on
evidence of a new exposure or medical evidence from a physician showing progression of her
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s case for further
review of the merits of her claim, with respect to expansion of the claim, under 5 U.S.C.
§ 8128(a)

9

B.S., Docket No. 09-195 (issued October 9, 2009) (while a claimant bears the burden of proof that, impairment
is causally connected to the original accepted injury, OWCP must not summarily deny a claim for a schedule award
on the basis that there was an earlier finding that the claimant had no residuals, sufficient to terminate wage-loss
compensation and medical benefits).
10

D.M., Docket No. 10-1844 (issued May 10, 2011).

11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside and remanded, in part, for
further action consistent with this decision.
Issued: June 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Jefferson, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1905
Issued: July 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 18, 2012 appellant’s counsel timely appealed the March 27, 2012 merit
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 the claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective January 16, 2011.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 52-year-old mail processing (window) clerk, has an accepted claim for
aggravation of cervical disc disease which arose on September 6, 2007.2 The injury occurred
when she lifted a bucket and turned to put it on a ledge. Appellant reportedly felt “pulling [and
a] pop” in her upper back and neck. She stopped work the day of her injury. Appellant received
continuation of pay for 45 days. Afterwards, OWCP commenced payment of wage-loss
compensation and ultimately placed her on the period compensation rolls. Appellant has not
returned to work since her September 6, 2007 injury.
By decision dated December 29, 2010, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective January 16, 2011.3 It based its determination on the
August 24, 2010 report of Dr. Bradley L. White, a Board-certified orthopedic surgeon and
impartial medical examiner (IME).4
Dr. White examined appellant on August 24, 2010 and diagnosed resolved cervical strain
and resolved temporary aggravation of preexisting cervical spondylosis (C4-5, C5-6) without
evidence of upper extremity radiculopathy. He also diagnosed chronic right-sided neck pain and
nonradicular right upper extremity pain without clinical evidence of radiculopathy, peripheral
neuropathy or complex regional pain syndrome. Dr. White characterized appellant’s chronic
neck pain as a manifestation of preexisting, noncausally-related degenerative cervical spine
spondylosis. He stated that the only injury she sustained on September 6, 2007 was a cervical
strain. Dr. White further stated that appellant’s underlying, preexisting degenerative findings in
the cervical spine were not causally related to the September 6, 2007 employment injury and
were only temporarily aggravated by her injury.
He explained that any persisting
symptomatology was due to the natural history and expected progression of her preexisting
cervical condition and there was no permanency with respect to the September 6, 2007 work
accident. Dr. White noted that appellant had reached maximum medical improvement and that
she should be able to resume her previous window clerk duties full time, but with a 25-pound
2

Appellant previously injured her neck on October 2, 2000, which OWCP accepted for cervical disc disease File
No. xxxxxx066. Diagnostic studies revealed evidence of cervical disc herniations at C4-5 and C5-6 dating back to
October 2000.
3

On November 22, 2010 OWCP issued a notice of proposed termination of benefits.

4

OWCP selected Dr. White to resolve a conflict in medical opinion between appellant’s physician, Dr. Dinesh
Shukla, a Board-certified neurologist and Dr. Sanford R. Wert, a Board-certified orthopedic surgeon and OWCP
referral physician. Dr. Wert examined appellant on March 23, 2010 and diagnosed aggravation of preexisting
degenerative changes, cervical spine. He also diagnosed cervical sprain/strain and aggravation of prior “2003” neck
injury. Dr. Wert indicated that appellant could perform full-time, light-duty work with a 25-pound restriction on
lifting, carrying, pushing and pulling. These were permanent restrictions that he attributed to appellant’s 2003 and
September 6, 2007 work-related injuries. Dr. Shukla, appellant’s physician, submitted a July 1, 2010 work capacity
evaluation (OWCP-5c). He diagnosed multilevel cervical disc herniations and limited appellant to four hours of
work a day. Dr. Shukla imposed a five-pound lifting restriction (half hour) and precluded any pulling, squatting,
kneeling, twisting and bending/stooping. Appellant was permitted to push 20 pounds on wheels for a half hour.
Dr. Shukla also limited her to a half hour of sitting, walking, standing, climbing and reaching, but no reaching above
shoulder level with respect to her right side. Appellant also had right-side limitations (five pounds, half hour) with
respect to repetitive movements of the wrist and elbow.

2

lifting and carrying limitation. He indicated that the work restrictions were permanent in nature.
Dr. White also stated that there was no further injury-related treatment required, but appellant
may require additional treatment with respect to her preexisting cervical spondylosis. As
previously indicated, OWCP terminated appellant’s compensation and medical benefits effective
January 16, 2011 based on the IME’s above-noted findings.
On December 22, 2011 counsel requested reconsideration. He challenged OWCP’s
reliance on Dr. White’s August 24, 2010 opinion and further argued that the claim should be
expanded to include cervical disc herniations. Counsel resubmitted several reports from
Dr. Shukla dated January 10, February 7 and May 1, 2008. He also resubmitted Dr. Shukla’s
November 29, 2010 treatment notes. The latter treatment notes, which included part-time,
limited-duty work restrictions, were initially submitted by counsel in response to OWCP’s
November 22, 2010 notice of proposed termination.
In a March 27, 2012 decision, OWCP considered the merits of the claim and denied
modification.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.7 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.8
FECA provides that if there is disagreement between an OWCP designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.9 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”10 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11
5

Curtis Hall, 45 ECAB 316 (1994).

6

Jason C. Armstrong, 40 ECAB 907 (1989).

7

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

8

Calvin S. Mays, 39 ECAB 993 (1988).

9

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321 (2012); Shirley L. Steib, 46 ECAB 309, 317 (1994).

10

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

11

Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

ANALYSIS
OWCP accepted appellant’s September 6, 2007 employment injury for aggravation of
cervical disc disease. Appellant previously sustained an employment-related neck injury on
October 2, 2000, which OWCP accepted for cervical disc disease File No. xxxxxx066.12
Acontemporaneous cervical magnetic resonance imaging scan dated October 13, 2000 revealed
disc herniations at C4-5 and C5-6.13 Both of appellant’s cervical injuries and their corresponding
accepted conditions were properly noted in the February 11, 2010 statement of accepted facts
(SOAF), which OWCP provided Dr. White, the IME.
When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.14 The Board finds that OWCP improperly deferred to Dr. White’s August 24, 2010
opinion. The IME’s finding that cervical strain was the “only” condition causally related to the
September 6, 2007 employment injury is inconsistent with the provided SOAF, which made no
mention of cervical strain as being an accepted condition. The February 11, 2010 SOAF clearly
stated that OWCP accepted aggravation of cervical disc disease. Because the IME’s August 24,
2010 report is not based on a proper factual background, the Board finds that OWCP has not met
its burden in terminating appellant’s benefits.
CONCLUSION
OWCP improperly terminated appellant’s wage-loss compensation and medical benefits
effective January 16, 2011.

12

Although appellant’s October 2000 and September 2007 claims involved injury to the same area of the body,
OWCP has not combined the two case records.
13

Appellant was 40 at the time and there is no indication in the current record that the identified cervical disc
herniations were degenerative in nature and preexisted the October 2, 2000 employment injury.
14

Supra note 11.

4

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Richmond, CA, Employer
__________________________________________

)
)
)
)
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)
)
)

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

Docket No. 14-1690
Issued: December 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 31, 2014 appellant filed a timely appeal from a July 16, 2014 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $37,103.74 from April 1, 2013 through May 31,
2014; and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of the recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 1998 appellant, then a 40-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging an injury to the side of her left hand as a result of grabbing a sack of
mail on October 22, 1998. OWCP accepted her claim for left wrist tendinitis.2 It paid medical
and compensation benefits. As of August 24, 2013, appellant’s compensation was deposited
directly into her bank account.
In a record of a telephone conversation dated March 14, 2013, appellant noted that she
was planning to retire with an effective date of March 29, 2013. She stated that it was not
disability retirement from the Office of Personnel Management (OPM), but instead “normal
retirement.”
By letter dated March 14, 2013, OWCP informed appellant that annuity benefits paid by
OPM and benefits for wage loss paid by OWCP were not payable for the same period of time,
and that she needed to elect which benefit to receive. Appellant completed an election form on
April 5, 2013 and elected FECA benefits effective March 30, 2013.
On April 18, 2013 an OWCP representative told appellant that her compensation would
continue as usual because she had elected FECA benefits in lieu of retirement.
By decision dated July 17, 2013, OWCP found that appellant was no longer totally
disabled and that the position of information clerk fairly and reasonably represented her wageearning capacity. Appellant was advised that she had a $688.89 per week loss of wage-earning
capacity. In a Form CA-1032 dated April 4, 2013, she stated that she was not in receipt of
retirement benefits. In a Form CA-1032 dated April 3, 2014, appellant again stated that she was
not in receipt of retirement benefits.
In a record of a telephone conversation dated April 29, 2014, a claims examiner noted
that, following a conversation with an OPM representative, she had determined that OPM
received incorrect information from the employing establishment and that, as a result, appellant
had been receiving compensation from both OPM and OWCP since April or May 2013.
By letter dated April 30, 2014, OWCP again informed appellant that annuity benefits
paid by OPM and benefits for wage loss paid by OWCP were not payable for the same period of
time, and that she needed to elect which benefit to receive. With this letter, it enclosed another
election form to complete. Appellant completed the form on May 12, 2014, electing Civil
Service Retirement System (CSRS) or Federal Employees’ Retirement System (FERS) benefits
effective April 1, 2013.
On June 3, 2014 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $37,103.74 because she continued to receive
compensation benefits after electing OPM benefits from April 1, 2013 through May 31, 2014. It
determined that she was at fault in the creation of the overpayment because she made an
informed retroactive election on May 15, 2014 to receive OPM benefits effective April 1, 2013.
2

OWCP’s acceptance letter for the present claim does not appear in the case record.

2

OWCP determined that appellant received compensation benefits in the amount of $2,239.00
every 28 days and that the period for which she was overpaid was 426 days, resulting in an
overpayment in the amount of $37,103.74.
By letter dated June 26, 2014, appellant disagreed that an overpayment had occurred and
that she was at fault in the creation of any overpayment. She stated that she had elected FECA
benefits in March 2013, and that OPM stated that OWCP would send her election form to OPM
notifying them of her election. Appellant noted that in the second week of April, she had an
additional deposit in her account. She stated that OPM told her that they were not sending her
anything. Appellant noted that OWCP reduced her payments in the same time period, so she
thought it was permissible to receive these additional payments. She stated that she spoke to a
representative at OPM, who told her that she should not be receiving both OPM and FECA
benefits and that OPM had never received the election form from OWCP. Appellant argued that
she was without fault because she received misinformation from OWCP and it did not relay the
relevant information to OPM.
By decision dated July 16, 2014, OWCP found that appellant was at fault in the creation
of an overpayment in the amount of $37,103.74 as she received both compensation and
retirement benefits during the period April 1, 2013 through May 31, 2014.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.4
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement annuity.5 When a claimant is entitled to disability benefits under FECA and
annuity benefits from OPM under either the CSRS or FERS, the employee must make an
election between FECA benefits and OPM benefits.6 The employee has the right to elect the

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (February 1995).

3

monetary benefits that is most advantageous.7 The election, once made, is revocable.8
Concurrent wage-loss compensation and OPM benefits constitute prohibited dual benefits.9
ANALYSIS -- ISSUE 1
The evidence of record establishes that OWCP informed appellant by letter dated
March 14, 2013 that OPM and FECA benefits were not payable for the same period of time.
Appellant completed a formal election form on April 5, 2013 and elected FECA benefits
effective March 30, 2013. However, she began receiving OPM benefits on April 1, 2013. The
record indicates that OWCP continued to pay appellant compensation until May 31, 2014. On
May 12, 2014 appellant elected CSRS or FERS benefits retroactively effective to April 1, 2013.
As such, any wage-loss compensation she received from OWCP after April 1, 2013 constituted
an overpayment of compensation.10 Appellant was not eligible to receive wage-loss
compensation and retirement benefits from OPM for the same time period.11 An overpayment
arose after her retroactive election of retirement benefits, as she was not entitled to the amount
paid by OWCP for the period April 1, 2013 through May 31, 2014. Accordingly, the Board
finds that appellant received an overpayment of compensation in the amount of $37,103.74 for
the period April 1, 2013 through May 31, 2014.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that 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 this subchapter or would be against
equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.14
7

Id.

8

20 C.F.R. § 10.421(a).

9

Supra note 4.

10

A.L., Docket No. 09-1529 (issued January 13, 2010); Franklin L. Bryan, 56 ECAB 310 (2005).

11

20 C.F.R. § 10.421(a).

12

5 U.S.C. § 8129(b).

13

Gregg B. Manston, 45 ECAB 344, 354 (1994).

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

4

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.15
ANALYSIS -- ISSUE 2
OWCP denied appellant’s request for waiver of recovery of the overpayment because it
found that she was at fault in creating the overpayment. In this case, it applied the third standard
in determining appellant’s fault. In order for OWCP to find that she was at fault in creating the
overpayment of compensation, appellant must establish that, at the time she received the
compensation in question, she knew or should have known that the payment was incorrect.16
On appeal and before OWCP, appellant alleged that she should not be held to be at fault
in the creation of the overpayment because OWCP failed to properly notify OPM of her election
of benefits, and because OPM began paying her benefits without her authorization. She stated
that because OWCP had recently reduced her compensation based on her income, she thought
that the payments were due to her. Appellant noted that she had realized there was extra money
being deposited into her bank account in April 2013, called OPM to determine whether it was the
source of this extra money, and was told that it did not come from OPM.
The case record reveals that OWCP received a form dated April 5, 2013 electing FECA
benefits effective March 31, 2013; however, this election of benefits was later superseded by a
form dated May 12, 2014 electing OPM retirement benefits effective April 1, 2013. By letters
dated March 14, 2013 and April 30, 2014, OWCP informed appellant that she was not entitled to
receive dual benefits.
The Board finds that, in these circumstances, a claimant, who makes an election of
benefits between FECA and OPM may be charged with knowledge that subsequent dual
payments are incorrect.17 Appellant received dual payments from OWCP and OPM for the
period April 1, 2013 through May 31, 2014. She did not submit any probative evidence to
support the allegation that OPM had erroneously informed her that the payments to her account
were not from OPM. The July 17, 2013 decision to reduce appellant’s compensation based upon
her wage-earning capacity as an information clerk did not state that the reduction would be
accompanied by an increase in compensation, it noted the specific amount of compensation she
would receive every 28 days. Thus, appellant’s apparent belief that the additional income
deposited into her account was related to this reduction in compensation had no basis. The case

15

20 C.F.R. § 10.433(b).

16

Linda E. Padilla, 45 ECAB 768, 772 (1994).

17

See C.G., Docket No. 12-936 (issued April 22, 2013) (where appellant was receiving wage-loss compensation
benefits by direct deposit and elected to receive OPM benefits and thereafter received dual benefits creating an
overpayment of compensation, the Board found that she was at fault because she was aware that she could not be in
receipt of dual benefits after her election of benefits).

5

record does not contain evidence that appellant sought to advise or question OWCP regarding
this additional income during the period of the overpayment.
Even if an overpayment results from negligence on the part of OWCP, this does not
excuse an employee from accepting payments which she knew or should have known were
incorrect.18 Appellant should have known that these payments were incorrect, whether or not she
had been told by OPM that they did not originate in that agency. She had no reason to believe
that OWCP would be sending her additional compensation after it had issued a decision reducing
her compensation. Appellant did not submit any probative evidence to support that she was
unable to understand that she could not accept FECA wage-loss compensation at the same time
as she received OPM retirement benefits.19 As he is not without fault in the creation of the
overpayment, she is not eligible for waiver of recovery of the overpayment. OWCP is required
by law to recover the overpayment.20
For these reasons, OWCP properly found that appellant accepted wage-loss
compensation from April 1, 2013 through May 31, 2014 while also receiving retirement benefits
from OPM which he or she knew or should have known was incorrect. As appellant was at fault
under the third fault standard, outlined above, recovery of the $37,103.74 overpayment of
compensation may not be waived.21
CONCLUSION
The Board finds that appellant received an overpayment of compensation from April 1,
2013 to May 31, 2014 and that appellant was at fault in creating the overpayment.

18

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

19

See P.L., (G.L.), Docket No. 09-1488 (issued March 2, 2010) (where the Board held that appellant did not
submit any medical or factual evidence establishing that he was mentally incompetent to understand that he was
receiving an overpayment of compensation or lacked the capacity to complete the EN1032 forms dated 1986 to
2008).
20

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
264 (2007).
21

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 21-1075
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 7, 2021 appellant filed a timely appeal from a June 17, 2021 nonmerit decision of
the Office of Workers’ Compensation Program (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2020 appellant, then a 79-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed actinic keratosis and basal cell carcinoma
1

5 U.S.C. § 8101 et seq.

due to factors of his federal employment, including exposure to the ultraviolet rays from the sun.
He noted that he first became aware of the condition on September 26, 2007 and realized its
relationship to his federal employment on February 18, 2020. In an attached February 28, 2020
statement, appellant detailed his exposure to the sun, both on and off the job . He also cited to prior
Board decision pertaining to causal relationship.
In a February 23, 2020 report, Dr. Suzette Sanchez, an osteopath specializing in
dermatology, noted that appellant had worked for the employing establishment for over 30 years
and had spent most of his eight-hour workday outside delivering mail. She reported that appellant
had previously been treated for actinic keratosis and basal cell carcinoma on his upper mid
forehead in 2017 and was seen on February 18, 2020 for recurring actinic keratosis on his right
forehead. Dr. Sanchez indicated that actinic keratosis and basal cell carcinoma is a skin cancer,
which directly correlates with high amounts of past sun exposure. She noted that appellant had a
lifetime of sun exposure and opined, with a reasonable degree of medical certainty, that his
extensive time spent outside in the sun delivering mail contribu ted to the development of actinic
keratosis and basal cell carcinoma. An April 28, 2017 dermatopathology laboratory report was
attached, which identified appellant’s biopsied specimen as basal cell carcinoma.
In an April 2, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence needed to establish his claim and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an April 6, 2020 letter, appellant responded to OWCP’s April 2, 2020 development
letter. He also resubmitted his previous correspondence and evidence.
By decision dated May 11, 2020, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the accepted work events.
On June 1, 2021 appellant requested reconsideration an appeal request form. In an
accompanying May 27, 2021 letter, he argued that OWCP never mentioned nor considered his
April 6, 2020 submission, which contained relevant information. Appellant further argued that
Dr. Sanchez was not required to delineate the percent of non-federal or federal exposure
contribution to his skin cancer, only that his federal employment contributed to the development
of his skin cancer. In support of his argument, he again cited to the same Board precedent as cited
in his February 28, 2020 statement.
By decision dated June 17, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

2

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 3 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which does not raise a
substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP 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 OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 September 2020).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
7

D.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued
April 15, 2010). See also 20 C.F.R. § 10.607(b).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

error.11 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 1, 2021 appellant filed a request for reconsideration. As this request was received
more than one year after the latest merit decision, dated May 11, 2020, the request for
reconsideration was untimely filed pursuant to 20 C.F.R. § 10.607(a). 13 As such, appellant must
demonstrate clear evidence of error with respect to OWCP’s last merit decision. 14
In support of his untimely reconsideration request, appellant argued that OWCP did not
review all the documents he submitted. He also argued that Dr. Sanchez was not required to
delineate the percent of non-federal or federal exposure contribution to his skin cancer, but that
she need only to opine that his federal employment contributed to the development of his skin
cancer. In support of his argument, appellant cited to Board precedent for the proposition that it
is not necessary to show a significant contribution of employment factors to a diagnosed condition
to establish causal relationship.15 His argument, however, failed to sufficiently explain how this
legal precedent in conjunction with Dr. Sanchez February 23, 2020 report raises a substantial
question as to the correctness of OWCP’s May 11, 2020 merit decision.16
The Board, thus, finds that appellant has not raised an argument or submitted an y evidence
that manifests on its face that OWCP committed an error in denying his occupational claim.17 As
such, his untimely request for reconsideration failed to demonstrate clear evidence of error.18

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b); see D.M., Docket No. 21-0261 (issued September 29, 2021); R.T., Docket No. 19-0604
(issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

C.H., Docket No. 20-0194 (issued August 26, 2021); F.K., Docket No. 19-1804 (issued April 27, 2020; J.B.,
Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37
ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a diagnosed
condition to establish causal relationship).
16

See O.K., Docket No. 21-0708 (issued September 29, 2021); T.C., Docket No. 19-1709 (issued June 5, 2020);
B.W., Docket No. 19-0626 (issued March 4, 2020).
17

O.K., id., S.C., Docket No. 19-1424 (issued September 15, 2020).

18

Id.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0945
Issued: March 16, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 3, 2021 appellant filed a timely appeal from the December 8, 2020 OWCP
decision, to which the Clerk of the Appellate Boards assigned Docket No. 21-0945.
By decision dated March 13, 2020, the Board set aside the December 3, 2018 OWCP
decision and remanded the case for OWCP to apply the more stringent clear evidence of error
standard for an untimely request for reconsideration.
In accordance with the Board’s March 13, 2020 decision, OWCP issued a December 8,
2020 decision and denied appellant’s November 20, 2018 request for reconsideration of the merits
of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 7, 2022 the Board issued an order under Docket No. 19-1354, finding that the
March 13, 2020 Board decision was void ab initio and of no effect. The Board reissued the
decision on March 13, 2022, finding that appellant’s November 20, 2018 request for
reconsideration was timely filed from the most recent merit decision dated March 13, 2018.
The Board, having duly considered the matter, notes that because the Board voided the
prior decision under Docket No. 19-1354, OWCP had no jurisdiction to issue the December 8,
2020 decision. Consequently, the December 8, 2020 decision is null and void.

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to review of final adverse decisions of OWCP issued under the Federal
Employees’ Compensation Act (FECA). 1 As the December 8, 2020 decision is null and void, the
appeal assigned Docket No. 21-0945 does not contain a final adverse decision over which the
Board may properly take jurisdiction.2 Therefore, the Board finds that the appeal docketed as No.
21-0945 is dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0945 is dismissed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

See Order Dismissing Appeal, L.R., Docket No. 20-1447 (issued April 7, 2021).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., a.k.a., K.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, WI, Employer
__________________________________________

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

Docket No. 13-436
Issued: August 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 19, 2012 appellant, through her attorney, filed a timely appeal from the
November 28, 2012 merit decision of the Office of Workers’ Compensation Programs. 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to modify OWCP’s
February 1, 2001 loss of wage-earning capacity determination; (2) whether OWCP properly
found that appellant received an overpayment of compensation in the amount of $34,693.44; and
(3) whether OWCP properly found that the overpayment is not subject to waiver.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 13, 1998 appellant, then a 44-year-old automation clerk, filed a traumatic injury
claim alleging that on that date she injured her lower back after lifting bulk mail. OWCP
accepted her claim for a lumbar strain. It paid appropriate compensation and medical benefits.
On July 5, 2011 appellant filed a claim for compensation for June 25 through
July 1, 2011. In a supporting document, an “agency official” indicated that appellant was sent
home on June 27, 2011 after working 1.79 hours as no work was available. The form also
indicated that appellant did not work on June 28, 29, 30 and July 1, 2011 for the same reason and
that the unavailability of work was due to the National Reassessment Program (NRP). By letters
dated July 7, 2011, the employing establishment indicated that, pursuant to NRP, it was unable to
identify any available necessary tasks within appellant’s medical restrictions. Appellant filed
claim forms for additional periods and OWCP determined that it was not able to issue payment
for those periods.
By letter dated July 26, 2011, OWCP indicated that it had received appellant’s claim for
compensation and noted that her limited-duty assignment was withdrawn effective
June 27, 2011. It also noted that a formal loss of wage-earning capacity decision was previously
issued in this case on February 1, 2011 which found that the position of modified mail processor
fairly and reasonably represented appellant’s loss of wage-earning capacity. OWCP informed
appellant of the criteria necessary for modifying a loss of wage-earning capacity decision and the
documents that she needed to submit in support of her claim.
By decision dated September 6, 2011, OWCP denied appellant’s claims for compensation
for the period June 27 through July 1, 2011 and July 4 through 15, 2011. It found that the
evidence of record failed to support disability during the period claimed. In a separate decision
of the same date, OWCP denied appellant’s claim for wage-loss compensation for the period
July 16 through August 26, 2011 for the reason that she had not established that her previous loss
of wage-earning capacity determination dated February 1, 2001 should be modified.
On October 4, 2011 appellant requested review of the written record by an OWCP
hearing representative.
By decision dated December 12, 2011, OWCP’s hearing representative vacated the
September 6, 2011 decisions. The hearing representative noted that OWCP’s basis for denial
was technically incorrect in that it did not address whether the withdrawal of appellant’s limited
duty due to NRP met one of the three criteria necessary to modify the established loss of wageearning capacity, and accordingly, they did not place appellant on notice of the appropriate basis
for denial of compensation. The hearing representative remanded the case and gave OWCP
instructions to fully evaluate whether appellant met any of the criteria set forth for modification
of the original loss of wage-earning capacity decision and to issue a de novo decision.
By decision dated May 1, 2012, OWCP denied appellant’s claim for periods of
compensation after June 27, 2011. On May 1, 2012 it also made a preliminary determination
that she had received an overpayment of compensation in the amount of $34,693.44 because
OWCP erroneously paid her compensation benefits from June 27, 2011 to May 5, 2012. OWCP

2

noted that appellant was without fault in creating the overpayment, and instructed appellant to
complete the enclosed financial forms and the Overpayment Action Request. Appellant did not
submit the requested financial documentation.
On May 3, 2012 appellant requested an oral hearing. On the same date, she also
requested a prerecoupment hearing as she disagreed that an overpayment occurred. Appellant
stated that her completed financial form and supporting documents would be presented at the
hearing, if requested.
At the hearing held on August 16, 2012, appellant’s attorney contended that OWCP did
not properly develop or evaluate the evidence. He noted that OWCP did not properly follow the
established procedures as set forth in FECA Bulletin No. 09-05 concerning NRP cases. Counsel
also argued that an overpayment decision was inappropriate at this time. By letter dated
August 24, 2012, he noted that OWCP failed to apply FECA Bulletin No. 09-05. Counsel also
contended again that certain evidence was not properly evaluated.
By decision dated November 28, 2012, the hearing representative found that appellant
had not met her burden to modify the prior loss of wage-earning capacity determination. She
also found that appellant had received an overpayment in the amount of $34,693.44 as she was
incorrectly paid compensation for the period June 27, 2011 to May 5, 2012. The hearing
representative noted that, although appellant was not at fault in the creation of the overpayment,
she failed to submit financial forms and documentation and accordingly, as appellant did not
provide the necessary financial information, OWCP was directed to collect the overpayment.
LEGAL PRECEDENT
A wage-earning capacity (WEC) decision is a determination that a specific amount of
earnings, either actual earnings or earnings from a selected position, represents a claimant’s
ability to earn wages.2 Compensation for a loss of wage-earning capacity is based upon loss of
the capacity to earn and not on actual wages lost.3 Compensation payments are based on loss of
wage-earning capacity determination, which remains undisturbed until properly modified.4
Modification of a standing loss of wage-earning capacity determination is not warranted
unless there is a material change in the nature and extent of the injury-related condition, the
employee has been retrained or otherwise vocationally rehabilitated or the original determination

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., supra note 2; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

3

was erroneous.5 The burden of proof is on the party attempting to show a modification of the
loss of wage-earning capacity determination.6
FECA Bulletin No. 09-05 outlines OWCP’s procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case a formal loss of wage-earning capacity
decision has been issued, OWCP must develop the evidence to determine whether a modification
of that decision is appropriate.7
ANALYSIS
OWCP analyzed this case under the customary criteria for modifying a loss of wageearning capacity determination. However, the Board finds that it did not fully follow the
procedures outlined in FECA Bulletin No. 09-05 for claims, such as this, in which limited-duty
positions are withdrawn pursuant to NRP.8
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.9 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file
contains documentary evidence supporting that the position was an actual bona fide position. It
requires OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.10
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.11
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside OWCP’s November 28, 2012 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

6

Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

8

See M.P., Docket Nos. 12-1846 and 13-349 (issued March 14, 2013).

9

Supra note 7.

10

Id. at §§ 1.A.1-2.

11

Id. at § 1.A.3.

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de novo decision on appellant’s entitlement to wage-loss compensation beginning
June 27, 2011.12
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s February 1, 2001 loss of wage-earning capacity determination is warranted. Further
action by OWCP is necessary.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action.
Issued: August 15, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

In light of the Board’s disposition of this issue, the remaining issues are moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, B STATION
CLEVELAND POST OFFICE, Cleveland, OH,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1453
Issued: January 5, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 29, 2020 appellant, through counsel, filed a timely appeal from a July 9, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left foot condition
causally related to the accepted November 8, 2019 employment incident.
FACTUAL HISTORY
On November 9, 2019 appellant, then a 25-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on November 8, 2018, he sustained a left foot sprain while in the
performance of duty. He noted that he felt sharp pain in his left foot while delivering mail.
Appellant was initially treated on November 8, 2018 in the emergency department by a
registered nurse whose signature is illegible. The registered nurse excused appellant from work
through November 10, 2019.
Appellant was also treated on November 8, 2019 by Whitney R. Butler, a certified
physician assistant. Ms. Butler, in a November 8, 2019 after visit summary, diagnosed left foot
pain.
In a November 15, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and afforded
appellant 30 days to respond.
A November 14, 2019 duty status report (Form CA-17) by Dr. Stephen Pinney, a Boardcertified orthopedic surgeon, noted appellant’s history of injury related to the alleged November 8,
2019 employment incident. He diagnosed left foot sprain, initial encounter. Dr. Pinney held
appellant off work until December 9, 2019.
Ms. Butler, in a note dated November 8, 2019, related appellant’s alleged history of injury
and discussed findings on physical examination and reviewed diagnostic results. She reiterated
her prior diagnosis of left foot pain.
A November 8, 2019 left foot x-ray report by Dr. Randy Larrick, a Board-certified
diagnostic radiologist, reviewed appellant’s alleged history of injury. Dr. Larrick provided an
impression of no acute pathology.
A November 8, 2019 state workers’ compensation first report of injury contained an
illegible signature and noted a history of the alleged November 8, 2019 employment incident.
Appellant was diagnosed as having left foot pain.
In progress notes and a report dated November 14 and December 5, 2019, Michelle Idada,
a certified physician assistant, noted appellant’s alleged history of injury on November 8, 2019
and discussed examination findings. She diagnosed: left foot sprain, initial encounter; left foot
injury, initial encounter; and left foot pain.
In a November 14, 2019 progress note, Lauren Grady, a medical assistant, provided a
primary diagnosis of left foot sprain, initial encounter.

2

In a December 5, 2019 Form CA-17 report, a provider with an illegible signature noted a
history of the alleged November 8, 2019 employment incident. The provider diagnosed left foot
sprain, initial encounter, due to injury and held appellant off work until December 15, 2019.
A left foot x-ray report of even date by Dr. Bradford Richmond, a Board-certified
diagnostic radiologist, provided impressions of small bone exostosis on the dorsal aspect of the
first metatarsal and small calcaneal enthesophyte, and otherwise normal bones and joints of the
foot and ankle.
In a radiology service progress note also dated December 5, 2019, Sam E. Park, Jr., a
technician, noted that appellant had undergone a general x-ray examination of his left ankle and
foot.
By decision dated December 23, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed left foot
condition(s) were causally related to the accepted November 8, 2019 employment incident.
On January 9, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on May 11, 2020.
OWCP subsequently received medical evidence previously of record. It also received a
new progress note dated January 16, 2020 by Ms. Idada wherein she reiterated a history of the
accepted November 8, 2019 employment incident and her prior diagnosis of left foot sprain.
By decision dated July 9, 2020, OWCP’s hearing representative affirmed the December 23,
2019 decision as modified to find that the medical evidence of record was insufficient to establish
a medical diagnosis causally related to the November 8, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 that an injury 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. 5 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. 6

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 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 e xplaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
ANALYSIS
The Board further finds that appellant has not met his burden of proof to establish that his
diagnosed left foot condition was causally related to the accepted November 8, 2019 employment
incident.
On a November 14, 2019 Form CA-17, Dr. Pinney noted appellant’s history of injury
related to the alleged November 8, 2019 employment incident. He diagnosed left foot sp rain,
initial encounter. The Board thus finds that appellant has established a diagnosed medical
condition. Dr. Pinney, however, did not provide an opinion on causal relationship between the
diagnosed condition and the accepted employment incident. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee ’s condition is of no
probative value on the issue of causal relationship. 10 This report is, therefore, insufficient to
establish appellant’s claim.
Appellant also submitted a Form CA-17 report dated December 5, 2019 from a provider
with an illegible signature. The Board has held that reports that are unsigned or bear an illegible
signature lack proper identification and cannot be considered probative medical evidence as the
author cannot be identified as a physician. 11 Therefore, this report has no probative value and is
insufficient to establish the claim.

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

M.P., Docket No. 20-0996 (issued January 26, 2021); T.U., Docket No. 19-1636 (issued October 29, 2020);
R.L., Docket No. 20-0284 (issued June 30, 2020); M.A., Docket No. 19-1551 (issued April 30, 2020); T.O., Docket

4

The diagnostic reports from Dr. Larrick and Dr. Richmond addressed x-rays of appellant’s
left foot. However, diagnostic studies, standing alone, lack probative value as they do not address
whether the employment incident caused the diagnosed condition. 12
The remaining medical evidence of record includes reports and/or progress notes from a
registered nurse, certified physicians, a medical assistant, and a technician. The Board has held
that such healthcare providers, are not considered physicians as defined under FECA. 13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits. 14
As appellant has established a diagnosed medical condition, but has not submitted
rationalized medical evidence establishing a left foot condition causally related to the accepted
November 8, 2019 employment incident, the Board finds that he has not met his burden of proof
to establish his claim. 15
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 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 that his
diagnosed left foot condition was causally related to the accepted November 8, 2019 employment
incident.

No. 19-1291 (issued December 11, 2019).
12

See B.H., Docket No. 20-0777 (issued October 21, 2020); M.L., Docket No. 18-0153 (issued January 22, 2020);
J.S., Docket No. 17-1039 (issued October 6, 2017).
Section 8101(2) of FECA provides that the term physician “includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); J.D., Docket No. 21-0164 (issued June 15, 2021) (registered nurse); R.K., Docket No. 20-0049 (issued
April 10, 2020) (physician assistant); J.T., Docket No. 20-1486 (issued March 16, 2021) (medical assistant); C.L.,
Docket No. 18-0363 (issued July 19, 2018) (technician).
13

14

J.D., id.; R.K., id.; J.T., id.; C.L., id.; David P. Sawchuk, id.; Federal (FECA) Procedure Manual, id. at Chapter
2.805.3.a(1) (January 2013).
15

T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: January 5, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
ATLANTA REGION, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0179
Issued: September 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 23, 2020 appellant filed a timely appeal from a September 25, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of her oral argument request, appellant asserted that oral argument should be granted because it would provide
an opportunity to further explain her emotional condition claim. The Board, in exercising its discretion, denies
appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision based
on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not
serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On June 27, 2018 appellant, then a 40-year-old lead contact representative, filed an
occupational disease claim (Form CA-2) alleging that she experienced anxiety attacks due to
factors of her federal employment, including her work environment dealing with the public and
her relationship with management. She reported that her job required her to service the public by
performing a high volume of work at the front window, answering a steady stream of incoming
telephone calls, processing mail/work listings, and utilizing multiple employing establishment
programs, policies, and procedures. Appellant asserted that, after the management in her local
office changed at the end of 2016, the new management subjected her to harassment,
discrimination, and retaliation, and her stress level increased drastically. She noted, “I went from
an average manageable work environment to a hostile work environment.” Appellant noted that
she first became aware of her claimed condition on March 8, 2017 and first realized its relation to
her federal employment on August 17, 2017. She did not stop work.
In a July 9, 2018 statement, appellant alleged that, after her local office management team
changed in approximately November 2016, her work environment changed from being normal to
being “completely hostile and intolerable.”
She asserted that she contacted employing
establishment officials about the problem, but it remained unresolved. Appellant advised that she
had been promoted to lead customer service representative in October 2016 and had been able to
“manage the daily stresses” of performing her job duties and carried out her job with “upmost
success.” She claimed that the new management team embarrassed her in front of coworkers and
the public, gave her duplicate work assignments, and wrongly denied her career advancement
opportunities. Appellant recounted that, in approximately August 2017, she realized that
management did not appreciate her hard work and dedication to her job, and that, in approximately
October 2017, D.M., her immediate supervisor, retaliated against her for filing an Equal
Employment Opportunity (EEO) claim by “manipulating” her performance review.
Appellant submitted medical reports, dated March 9, 2017 to July 6, 2018, in which
Dr. Kimberly Kaye, a Board-certified internist, excused her from work for various periods. In her
July 6, 2018 report, Dr. Kaye noted that appellant, who had been diagnosed with anxiety, reported
working in a hostile and discriminatory environment.
In a July 24, 2018 development letter, OWCP advised appellant of the type of evidence
necessary to establish a claim and attached a questionnaire for her completion. By separate
development letter of even date, it requested that the employing establishment provide comments
from a knowledgeable supervisor regarding appellant’s allegations. OWCP afforded both parties
30 days to respond.
On August 6, 2018 OWCP received a timeline-style document in which appellant indicated
that D.M. was appointed in November 2016 and that she found her to be rude, abrupt, intimidat ing,
and unapproachable. Appellant claimed that in December 2016, D.M., unfairly criticized her when

2

she submitted a form to gain authorization to operate a private transportation business 3 and that
she used a “rude, harsh, and abrupt tone” to wrongly accuse her of misplacing a form that a
claimant had filed to appeal an agency decision. Appellant alleged that on approximately
January 20, 2017 D.M. told her in a harsh tone that she could promote whomever she wished
regardless of work ethic and job performance as the lead customer service representative. D.M.
also spoke to her in a harsh manner regarding her responsibility for all training and development
in her work unit. Appellant claimed that, in March 2017, D.M. and another supervisor isolated her
from the rest of her work unit by first announcing an upcoming meeting to other service
representatives and that D.M. showed no remorse for her actions. She alleged that on
approximately April 10, 2017 D.M. spoke loudly in a harsh tone in the middle of the office and
questioned her as to whether she was going to work on her private business while she was at home
on sick leave. Appellant indicated that later in April 2017 she expressed her concerns regarding
the work environment to D.M. and another supervisor, but they did not address her concerns. She
believed that D.M. had punitive intent when she indicated that she would determine her days off
work.
Appellant claimed that on approximately April 26, 2017 D.M. gave her a performance
evaluation and told her in a condescending tone that she needed to show more initiative. She
indicated that, in early-May 2017, D.M. unnecessarily embarrassed her in front of coworkers about
a minor error, and also rudely banged on her computer and told her to “check her mail” for no
apparent reason. Appellant alleged that she later had a contentious conversation with D.M.
regarding being chastised in front of coworkers. She claimed that on May 5, 2017 D.M.
improperly directed her to redo a work assignment about a matter with a customer that had already
been resolved. Appellant asserted that in July 2017 D.M. unreasonably scrutinized how long she
took for her lunch break and wrongly criticized her for several e-mails she sent regarding her
mentoring of a trainee. She alleged that, between August and December 2017, D.M. improperly
instructed her to use personal leave to address an EEO matter, which she believed to be work
related.
In an August 6, 2018 statement, appellant described her work schedule and noted that she
had been able to manage the stresses of her job as a customer service representative prior to the
November 2016 change in the management team of her local office. She again asserted that she
did not develop an emotional condition until 2017 when the new management team subjected her
to discrimination and mistreatment. Appellant later submitted additional medical evidence and
several administrative documents, including forms relating to her request for approval of activity
outside the workplace and an August 27, 2018 EEO decision finding that the employing
establishment had not discriminated against her.
In an August 23, 2018 letter, D.M. responded to a number of the claims made by appellant.
She expressed her belief that appellant’s anxiety was related to her unrealistic expectations and
multiple family-related matters.
By decision dated November 19, 2018, OWCP denied appellant’s emotional condition
claim because she failed to establish a compensable employment factor. In the factual portion of
3
Appellant claimed that D.M. later mishandled the processing of the form and continued to reference her business
plans in a rude and discriminatory manner.

3

the decision, it detailed the statements contained in appellant’s June 27, 2018 Form CA-2. In the
analysis section of the decision, OWCP described appellant’s allegations in a single sentence, by
noting, “You alleged the following incident(s):
Mistreatment and discrimination from
management, hostile work environment, and retaliation.”
On December 26, 2018 appellant requested reconsideration of the November 19, 2018
decision. She submitted another timeline-style statement in which she provided further details
regarding her claimed employment factors. Appellant submitted additional medical evidence and
administrative documents and e-mails regarding such matters as leave usage, reasonable
accommodation for medical conditions, and performance ratings.
By decision dated March 26, 2019, OWCP denied modification of its November 19, 2018
decision.
On November 19, 2019 appellant requested reconsideration of the March 26, 2019
decision. In an October 23, 2019 statement, she asserted that D.M. presented false information
that led to her claim being denied. Appellant submitted additional medical evidence.
By decision dated February 24, 2020, OWCP denied modification of its March 26, 2019
decision.
On June 24, 2020 appellant requested reconsideration of the February 24, 2020 decision.
She submitted statements from three employing establishment employees who described their own
problems with D.M. Appellant also submitted numerous documents from an EEO complaint and
a lawsuit she filed in U.S. District Court.
By decision dated September 25, 2020, OWCP denied modification of its February 24,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 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. 6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
4

5 U.S.C. § 8101 et seq.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

4

contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 7
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, 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.8 If a claimant does implicate a factor of employment, OWCP 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, it must base its decision on an analysis of the medical evidence. 9
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that OWCP did not provide adequate facts and findings in support of its
denial of appellant’s emotional condition claim. OWCP denied appellant’s claim in its
September 25, 2020 decision, but provided little additional discussion of appellant’s claimed
employment factors.
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make findings of fact. 10 The Federal (FECA)
Procedure Manual further specifies that a final decision of OWCP “should be clear and detailed
so that the reader understands the reason for the disallowance of the benefit and the evidence
necessary to overcome the defect of the claim.”11 These requirements are supported by Board
precedent.12
Given the inadequacy of OWCP’s presentation of the facts and findings in the present case,
appellant would be unable to understand the reason for the disallowance of her claim and the
7

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
10

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
12

See P.G., Docket No. 17-1461 (issued February 7, 2019); James D. Boller, Jr., 12 ECAB 45, 46 (1960).

5

evidence necessary to overcome the defect of her claim. Therefore, the case shall be remanded to
OWCP for further evaluation and a de novo decision, which contains adequate facts and findings
regarding appellant’s emotional condition claim. 13
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 30, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

13

See id. See also supra note 8.

6