United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, 375th
AIR WING, SCOTT AIR FORCE BASE, IL,
Employer
__________________________________________

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

Docket No. 08-604
Issued: August 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 9, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated April 27, 2007 that denied her claim and an October 17,
2007 decision that denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 26, 2006 appellant, then a 54-year-old management and program analyst,
filed a Form CA-2, occupational disease claim, alleging that factors of her federal employment

caused stress, stating that she was verbally relieved of duty as chief on September 9, 2005 and
was not assigned duties or reassigned to another position until May 28, 2006. She did not stop
work.
In an attached statement, appellant described specific incidents that she felt caused her
condition, noting that she had transferred to the employing establishment in June 2004 and
inherited a staff of two military officers and three civilians, including Charley Mills who had
expected to be promoted into her position. She stated that Mr. Mills and the staff resented her
for that reason and that Mr. Mills repeatedly told her in front of others that she was not qualified
for the position. Appellant further described problems with Captain Ivery who refused to work
with her and countermanded her orders to military personnel, noting that military personnel were
treated differently than civilian employees. When she complained to her supervisor, Colonel
Colon, he advised her to try and get along with people. After Colonel Colon retired, he was
replaced by Colonel Raymond Rottman who discussed personnel issues with appellant on
July 21, 2005, stating that her staff was not happy with her and she needed to improve.
Appellant also alleged that she was undermined by Lieutenant Colonel Jim Meeks who directed
her military staff and undermined her leadership and that on August 3, 2005 she had a
confrontation with Lynn Stadts, a civilian employee, concerning use of space. She stated that, at
a September 9, 2005 meeting, Colonel Rottman told her he was transferring her because of her
poor management style but that she would keep her pay and grade. Appellant noted that this was
humiliating to her and that on September 10, 2005 Colonel Rottman announced the change to the
staff. She described a confrontation with Lieutenant Colonel Doye Robbins on October 4, 2005
because he would not certify overtime and requested that she return a tablet computer. Appellant
stated that she was inappropriately reassigned on May 28, 2006 to a position with diminished
responsibility after not having any assigned duties since September 9, 2005 and that on June 13,
2006 she was informed that she was to groom the current deputy, Major Tammy D. Pokorney,
for the position of chief and that this caused an anxiety attack because she had hired and trained
the deputy. She generally alleged that she was treated as a second-class citizen and concluded
that she was currently working in a stressful situation with insufficient staff.
In support of her claim, appellant submitted a July 13, 2006 statement in which
Timothy M. West, a coworker, reported that from June to September 2005 appellant was chief of
wing plans and readiness and that in September 2005 she was removed and replaced by a
military member, that, from September 2005 until June 2006, he was unaware of duties or
responsibilities assigned to appellant, that she did not supervise employees or attend meetings.
In a September 15, 2006 statement, Mr. Mills noted that in September 2006 [sic] appellant was
replaced as chief of wing plans by Lieutenant Colonel Robbins who had zero background and
required experience. He opined that during the next nine months appellant was not effectively
utilized and that Lieutenant Colonel Robbins made several statements that he did not want her in
his office and that she was now in the precarious situation of being supervised by an individual
she personally interviewed and hired, noting that there was tension between the two.
In a July 27, 2006 report, Dr. Deborah K. McDermott, an internist, noted that appellant
had been complaining of depression since November 2005. She stated that appellant appeared
somewhat depressed and anxious and that her symptoms corresponded with stress and anxiety
which “are probably related to stress in the workplace.” In an August 23, 2006 report,
Dr. Sultan A. Hayat, Board-certified in internal medicine and cardiovascular disease, advised

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that three months previously appellant began to have exertional dyspnea and exertional chest
discomfort with heart pounding. He advised that his “strong clinical impression” was that her
symptoms were produced by stress at work.
By letters dated October 18, 2006, the Office informed appellant of the type evidence
needed to support her claim and asked that the employing establishment respond. By letter dated
November 15, 2006, Major Pokorney, chief of wing plans, programs and readiness, noted that
she had been appellant’s direct supervisor since September 15, 2006 and had worked closely
with her since July 2005. She stated that “perceptions of conflict with employees and
[appellant’s] supervisor were apparent in the tension and stress of the office environment.”
Major Pokorney stated that attempts were made to reduce the stress through reassignment of
personnel and one-on-one discussions with employees and supervisors but that the tension
remained in a period of increasing workload. She stated that appellant performed duties
consistent with her position description and that her removal from a leadership position was
deemed critical by wing leadership. Major Pokorney concluded that the circumstances and not
appellant’s personal actions led to the reassignment.
Appellant submitted copious evidence regarding a claim filed with the Merit Systems
Protection Board (MSPB), a complaint to the Office of Special Counsel (OSC) alleging
prohibited personnel practices, position descriptions, Form 50s and correspondence. In a letter
addressed to Senator Barack Obama’s office dated April 11, 2006, Lieutenant Colonel Karen L.
Cook, advised that the wing commander spoke to appellant on a number of occasions regarding
her leadership skills and the problems in her office which were having a negative impact on the
wing’s mission and that, as a result of these repeated discussions, the commander decided to
reassign appellant from her supervisory position into a nonsupervisory position and as this was at
the same grade level, it was not an adverse action. Lieutenant Colonel Cook stated that the
commander felt appellant was not effective as a leader and that strong leadership was needed.
She noted that an “official personnel action” was not taken because a permanent position was not
found for appellant. Lieutenant Colonel Cook concluded that the commander’s decision to
reassign appellant “was appropriately taken for mission reasons and took into consideration her
value to the organization and the Air Force.” A May 24, 2006 e-mail from employing
establishment personnel informed appellant that on May 23, 2006 a personnel action had been
submitted.
A memorandum dated May 30, 2006 to appellant, from Colonel Dawn E. Wilson noted
that appellant was being reassigned effective May 28, 2006. Colonel Wilson stated that the
reassignment was driven by mission needs, noting that other wings had found this alignment
beneficial; thus, the base and agency were better served by utilizing a military member as chief
and that this structure was highly conducive to the success of the operational mission. By
decision finalized on August 24, 2006, the MSPB dismissed appellant’s case for lack of
jurisdiction because reassignments without a loss of grade or pay are not appealable to MSPB.
In an April 27, 2007 decision, the Office denied appellant’s claim finding that, as she had
not established a compensable factor of employment, she had not established that she sustained
an injury in the performance of duty. On July 31, 2007 appellant requested reconsideration,
arguing that the evidence of record established that she sustained an injury in the performance of

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duty.1 She submitted copies of evidence previously of record and an e-mail regarding “WC
Stress Letter followup” in which Major Pokorney stated, “I have read the information and
adjusted the text, font, spacing. To my knowledge, all the information is accurate.” Appellant
also submitted an August 28, 2007 report in which Dr. Harvey L. Mirly, a Board-certified
orthopedic surgeon, reported on her left carpal tunnel condition. In a nonmerit decision dated
October 17, 2007, the Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.5 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.6 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially

1

Appellant also described factors that occurred after the instant claim was filed that are not pertinent to the
instant claim.
2

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

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Lillian Cutler, supra note 3.

7

Roger Williams, 52 ECAB 468 (2001).

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assigned work duties of the employee and are not covered under the Act.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment.
The main thrust of appellant’s allegations is that she was improperly removed from her
supervisory position in September 2005 and permanently reassigned to a nonsupervisory position
in May 2006. Personnel matters although generally related to the employee’s employment, are
administrative functions of the employer rather than the regular or specially assigned work duties
of the employee and are not covered under the Act, absent error or abuse.11 An employee’s
dissatisfaction with being transferred or reassigned constitutes frustration from not being
permitted to work in a particular environment or to hold a particular position and is also not
compensable.12 Major Pokorney and Lieutenant Colonel Cook explained that it was in the best
interest of the employing establishment’s mission to assign military rather than civilian personnel
to the chief’s position. Lieutenant Colonel Cook also explained that discussions were held with
appellant regarding her lack of leadership skills. Supervisory discussions of job performance and
reprimands are administrative or personnel matters of the employing establishment which are
covered only by a showing of error or abuse.13 In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.14 Mere disagreement or dislike of a management action will not

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

Kim Nguyen, 53 ECAB 127 (2001).

10

James E. Norris, 52 ECAB 93 (2000).

11

Id.

12

Robert Breeden, 57 ECAB 622 (2006).

13

David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

Cyndia R. Harrill, 55 ECAB 522 (2004).

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be compensable absent error or abuse15 and there is no evidence of error or abuse in this case
regarding the September 2005 removal or the May 2006 transfer. Appellant also asserted that
her lack of official duties from September 2005 to May 2006 caused her condition and Mr. Mills
noted that he did not think appellant was effectively utilized during this period. The assignment
of work is also an administrative function of the employing establishment and not a duty of the
employee.16 Appellant also contended that Lieutenant Colonel Robbins inappropriately denied
overtime and asked that she return a tablet computer. The handling of attendance matters is also
an administrative function of the employer and absent error or abuse, not compensable.17 The
Board finds that it was reasonable for the employing establishment to request the tablet computer
when her job duties changed18 and as appellant has not demonstrated error or abuse in these
administrative matters, they are not be compensable.
Regarding appellant’s contention that she had inadequate staff in her new position, this
too is a personnel matter and an administrative function of the employer.19 She did not allege
that she was overworked and other than her contention and Major Pokorney’s comment about an
increasing workload, there is no further evidence of record regarding this contention. All
allegations must be established on a factual basis to be compensable20 and the Board finds
Major Pokorney’s comment is too general in nature to establish error or abuse regarding this
employment matter.21
Regarding appellant’s allegation that she had a confrontation with Ms. Stadts on
August 3, 2005, verbal altercations when sufficiently detailed by the claimant and supported by
the record may constitute a compensable factor of employment.22 There is nothing in the record
here to support that this incident did in fact occur23 and it would therefore not be a compensable
factor of employment.
As to appellant’s general allegation that she was harassed by Mr. Mills, Lieutenant
Colonel Meeks, Captain Ivery and other personnel, for harassment or discrimination to give rise
to a compensable disability, there must be evidence that establishes that the acts alleged or
implicated by the employee did, in fact, occur. Unsubstantiated allegations of harassment or
discrimination are not determinative of whether such harassment or discrimination occurred. A
claimant must establish a factual basis for his or her allegations that the harassment occurred
15

T.G., 59 ECAB ____ (Docket No. 06-1411, issued November 28, 2006).

16

Linda K. Mitchell, 54 ECAB 748 (2003).

17

Joe M. Hagegood, 56 ECAB 479 (2005).

18

Cyndia R. Harrill, supra note 14.

19

David C. Lindsey, Jr., supra note 13.

20

See Sherry L. McFall, 51 ECAB 436 (2000).

21

Kim Nguyen, supra note 9.

22

David C. Lindsey, Jr., supra note 13.

23

L.S., 58 ECAB ____ (Docket No. 06-1808, issued December 29, 2006).

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with probative and reliable evidence. With regard to emotional claims arising under the Act, the
term “harassment” as applied by the Board is not the equivalent of “harassment” as defined or
implemented by other agencies, such as the Equal Employment Opportunity Commission, which
is charged with statutory authority to investigate and evaluate such matters in the workplace.
Rather, in evaluating claims for workers’ compensation under the Act, the term “harassment” is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by coemployees or workers. Mere perceptions and feelings of harassment will not
support an award of compensation.24 In the case at hand, appellant submitted no evidence to
substantiate harassment on the part of Mr. Mills or other member of the employing establishment
staff. While she submitted statements from Mr. Mills and Mr. West, these do not support that
harassment in fact occurred but rather describe her positions and duties at the employing
establishment.25 In this case, there is no affirmative evidence of record to establish that anyone
at the employing establishment committed any action that constituted harassment.26
Likewise, appellant’s contention concerning lack of support by Colonel Colon would not
be compensable. Generally, complaints about the manner in which a supervisor performs his or
her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule,
outside the scope of coverage provided by the Act. This principle recognizes that a supervisor or
manager in general must be allowed to perform his duties and employees will, at times, dislike
the actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent evidence of error or abuse.27 Appellant submitted no evidence to show
error or abuse regarding this matter.
Lastly, appellant indicated that she had filed an MSPB claim and a claim alleging
prohibited personnel practices with the OSC. In assessing the evidence, the Board has held that
complaints to other agencies, by themselves, do not establish that workplace harassment or
unfair treatment occurred.28 The MSPB dismissed appellant’s claim for lack of jurisdiction and
the record before the Board does not contain any decision from the OSC. Appellant therefore
did not establish harassment or discrimination on the part of the employing establishment.29 As
she identified no compensable work factors substantiated by the record,30 she failed to establish
that she sustained an injury in the performance of duty.31

24

K.W., 59 ECAB ____ (Docket No. 07-1669, issued December 13, 2007).

25

Joe M. Hagegood, supra note 17.

26

See Charles D. Edwards, supra note 8.

27

T.G., supra note 15.

28

See Michael L. Deas, 53 ECAB 208 (2001).

29

James E. Norris, supra note 10.

30

Roger Williams, supra note 7.

31

Id. Because appellant failed to establish a compensable employment factor, it was not necessary to consider the
medical evidence. Marlon Vera, 54 ECAB 834 (2003).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.32 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).33 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (1) shows that the
Office erroneously applied or interpreted a specific point of law; or (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.34 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.35
ANALYSIS -- ISSUE 2
In her request for reconsideration, appellant merely reiterated that the evidence submitted
was sufficient to establish employment-related stress. She therefore did not allege or
demonstrate that the Office erroneously applied or interpreted a specific point of law or advance
a relevant legal argument not previously considered by the Office. Consequently, appellant is
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).36
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted evidence previously of record and evidence that repeats or duplicates evidence already
in the case record has no evidentiary value and does not constitute a basis for reopening a case.37
She also submitted an August 28, 2007 medical report from Dr. Mirly concerning her carpal
tunnel syndrome condition. The merit issue in this case is whether appellant established a
compensable factor of employment. The Board has held that the submission of evidence that
does not address the particular issue involved in a case does not constitute a basis for reopening
the claim.38 Appellant also submitted a copy of an e-mail dated November 28, 2006 regarding
her stress claim in which Major Pokorney stated that she had read the information and adjusted
the text, font and spacing and that “to my knowledge, all the information is accurate.” The
32

5 U.S.C. § 8128(a).

33

20 C.F.R. § 10.608(a).

34

Id. at § 10.608(b)(1) and (2).

35

Id. at § 10.608(b).

36

Id. at § 10.606(b)(2).

37

See D’Wayne Avila, 57 ECAB 642 (2006).

38

Id.

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Board finds this e-mail is of such vague and generalized nature that it is not relevant or pertinent
to appellant’s claim that she established compensable factors of employment.39
Appellant therefore did not submit relevant and pertinent new evidence not previously
considered by the Office and it properly denied her reconsideration request by its October 17,
2007 decision.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty and that the Office properly
refused to reopen her case for further consideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 17 and April 27, 2007 be affirmed.
Issued: August 13, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

39

Robert Breeden, supra note 12.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, OAK PARK
STATION, Sacramento, CA, Employer
__________________________________________

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

Docket No. 19-0713
Issued: October 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 19, 2019 appellant filed a timely appeal from a December 14, 2018 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.3

1
Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated
July 17, 2020, the Board exercised its discretion and denied the request as the matter could be adequately addressed
based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 19-0713 (issued
July 17, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the issuance of the December 14, 2018 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $136,711.48 for the period September 1, 2006 through October 13, 2018, for which she
was without fault, because she concurrently received FECA wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits without an appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $125.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On February 3, 2005 appellant, then a 61-year-old modified window clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 31, 2005 she developed post-traumatic stress
disorder (PTSD) when she was robbed at gunpoint while in the performance of duty. OWCP
accepted her claim for PTSD. Appellant stopped work on February 1, 2005 and returned to fulltime modified-duty work on May 31, 2005. She stopped work again on May 11, 2006 and OWCP
paid her wage-loss compensation on the periodic rolls, effective August 6, 2006.
On December 14, 2006 OWCP received a Request for Withdrawal of Application form
from SSA dated November 30, 2006. Appellant explained that her reason for withdrawing her
application was because her SSA benefits would be deducted from her workers’ compensation
benefits. She noted that she chose not to receive any benefits from SSA and would repay the
benefits she had received for October to November 2006. Appellant submitted a receipt from SSA
of a payment that she had made on November 30, 2006 in the amount of $1,730.00.
In a Form CA-1032 dated December 4, 2006, appellant responded “Yes” indicating that
she had received retirement benefits from SSA as part of an annuity for federal service.
By decision dated June 4, 2007, OWCP advised appellant that it was reducing her wageloss compensation benefits pursuant to 5 U.S.C. § 8113(b) because she had failed, without good
cause, to undergo vocational rehabilitation as directed. It noted that her compensation would be
reduced to reflect what would have been her wage-earning capacity had she cooperated with the
vocational rehabilitation efforts of OWCP.
In a letter dated August 9, 2007, C.M., an employing establishment injury compensation
specialist, informed OWCP that appellant had been approved for retirement, effective
August 31, 2007. She requested that OWCP provide appellant with an election form.
In a letter dated September 5, 2007, OWCP advised appellant that her Federal Employees
Retirement System (FERS) benefits would be reduced by the amount of SSA benefits that she
received based on her age that were attributable to her federal service. It provided her with an
election form.
Appellant continued to complete CA-1032 forms dated November 25, 2007, January 7,
2008, December 3, 2009, December 11, 2010, January 9 and December 3, 2012, December 12,
2013, January 25 and November 30, 2015, December 20, 2016, and December 5, 2017. She

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responded “Yes” indicating that she received retirement benefits from SSA as part of an annuity
for federal service.
On October 18, 2018 an SSA representative provided OWCP with a FERS/SSA dual
benefit calculation worksheet. The SSA representative provided corresponding monthly SSA
benefits rates beginning September 2006 with and without appellant’s FERS contributions. The
form indicated that beginning September 1, 2006, appellant’s SSA rate with FERS was $865.50
and without FERS was $63.00; that beginning December 1, 2006, her SSA rate with FERS was
$894.00 and without FERS was $65.00; that beginning January 1, 2007, her SSA rate with FERS
was $905.50 and without FERS was $65.00; that beginning December 1, 2007, her SSA rate with
FERS was $926.40 and without FERS was $66.50; that beginning December 1, 2008, her SSA
rate with FERS was $980.00 and without FERS was $70.30; that beginning December 1, 2011,
her SSA rate with FERS $1,015.30 and without FERS was $72.70; that beginning December 1,
2012, her SSA rate with FERS $1,032.50 and without FERS was $73.90; that beginning
December 1, 2013, her SSA rate with FERS $1,048.00 and without FERS was $75.00; that
beginning December 1, 2014, her SSA rate with FERS was $1,065.80 and without FERS was
$76.30; that beginning December 1, 2016, her SSA rate with FERS was $1,068.90 and without
FERS was $76.40; and that beginning December 1, 2017, her SSA rate with FERS was $1,090.30
and without FERS was $77.90.
Effective October 14, 2018, OWCP paid appellant at the adjusted amount of $257.14 to
include the offset of her SSA age-related retirement benefits attributable to her federal service.
By letter dated October 24, 2018, OWCP advised appellant that it was adjusting her
compensation to offset the portion of her SSA age-related retirement benefits attributable to her
federal service. It informed her that she would receive net compensation of $257.14 every 28 days.
OWCP completed a FERS offset calculation worksheet on October 24, 2018. It calculated
the overpayment amount by determining the daily FERS offset amount and multiplying that
amount by the number of days in each period from September 1, 2006 through October 31, 2018
for a total overpayment amount of $136,711.48.
In a preliminary overpayment determination dated November 2, 2018, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $136,711.48
because it had failed to reduce her wage-loss compensation benefits for the period September 1,
2006 through October 13, 2018 by the portion of her SSA benefits that were attributable to federal
service. It further advised her of its preliminary determination that she was not at fault in the
creation of the overpayment because she could not have reasonably known that an improper
payment had occurred. OWCP provided appellant an overpayment action request form and an
overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified her that within
30 days of the date of the letter she could request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing. No response was received.
By decision dated December 14, 2018, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $136,711.48 for the period September 1, 2006 through October 13, 2018 because she received
SSA benefits in addition to her wage-loss compensation benefits under FECA without an

3

appropriate offset. It also found that appellant was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment because she had not completed and returned
OWCP’s Form OWCP-20. OWCP determined that recovery of the overpayment would require
deducting $125.00 every 28 days from appellant’s continuing compensation payments.
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 his or her duty.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.6 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation because she
concurrently received FECA benefits and SSA age-related retirement benefits without an
appropriate offset, and accordingly, fact of overpayment has been established. Appellant
completed CA-1032 forms dated December 4, 2006 to December 5, 2017 and responded “Yes”
indicating that she had received retirement benefits from SSA as part of an annuity for federal
service. As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA age-related retirement benefits attributable to federal service.8 The evidence of record has
established that appellant received SSA age-related retirement benefits that were attributable to
her own federal service during a period of time that she received FECA wage-loss compensation.
The Board finds that fact of overpayment, therefore, is established.
The Board further finds, however, that this case is not in posture for decision regarding the
amount of the overpayment.
The evidence of record does not contain evidence to support a finding that appellant was
in receipt of SSA benefits beginning September 1, 2006. According to the November 2, 2018
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

7

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

8

Id. See also A.C., Docket No. 18-1550 (issued February 21, 2019).

4

preliminary overpayment determination, OWCP premised its finding of an overpayment on the
October 18, 2018 letter that it had received from the SSA regarding appellant’s age-related
retirement benefits for the period September 1, 2006 through October 13, 2018. The Board finds,
however, that the October 18, 2018 letter alone does not establish that appellant was in receipt of
SSA/FERS benefits, effective September 1, 2006.9 OWCP received a Request for Withdrawal of
Application form from SSA dated November 30, 2006, which noted that appellant was
withdrawing her application for SSA. Appellant submitted a receipt from SSA of a payment that
she had made on November 30, 2006 in the amount of $1,730.00, purportedly covering the period
October to November 2006. She also completed CA-1032 forms dated December 3, 2006 to
December 5, 2017 and indicated that she was in receipt of SSA retirement benefits. The evidence
of record further includes a letter dated August 9, 2007 from the employing establishment, which
informed OWCP that appellant had been approved for retirement, effective August 31, 2007.
Given the conflicting information of record regarding when appellant began to receive SSA agerelated retirement benefits, the case must be remanded to OWCP for further development of the
factual evidence.
On remand OWCP shall consult with OPM and SSA in order to determine the exact amount
of the overpayment of compensation and the correct dates during which the overpayment
occurred.10 It shall then issue a new preliminary overpayment determination, with an overpayment
action request form, an overpayment recovery questionnaire, and instructions for appellant to
provide supporting financial information. After this and other such further development as deemed
necessary, it shall issue a de novo decision.11
CONCLUSION
The Board finds that, although fact of the overpayment for which appellant was not at fault
has been established, the case is not in posture for decision regarding the amount and period(s) of
the overpayment.

9

See J.M., Docket No. 15-1604 (issued May 23, 2016).

10

See J.H., Docket No. 19-1887 (issued June 16, 2020).

11
In light of the Board’s disposition of issue 1, the issues of waiver and recovery of the overpayment are rendered
moot.

5

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. This case is remanded
for further proceedings consistent with this decision of the Board.
Issued: October 20, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montclair, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1333
Issued: December 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 31, 2017 appellant, through counsel, filed a timely appeal from a March 24,
2017 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish arthritis of the
knees causally related to the accepted factors of her federal employment.
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.

FACTUAL HISTORY
On February 11, 2014 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed arthritis of both knees as a result of
performing repetitive duties required in her job. She initially became aware of her condition on
November 1, 2011. Appellant stopped work on December 17, 2013. She realized that it was
causally related to factors of her federal employment on February 11, 2014.
In a statement dated February 11, 2014, appellant indicated that she was a letter carrier
and was required to walk up and down hills and stairs and carry a heavy mailbag. She noted
working on her feet all day, casing mail on a concrete floor for one to two hours a day, and
walking eight miles a day. Appellant further indicated that, because she was overweight, it was
difficult for her to deliver mail. She was instructed to walk faster on an extended mail route and
she was unable to rest. Appellant noted previously filing a claim for her knees.3 She continued
to work and the pain in her knees worsened.
Appellant was treated by Dr. Richard A. Boiardo, a Board-certified orthopedist, on
December 22, 2014 for severe pain and restricted range of motion of both knees. Dr. Boiardo
noted that appellant had a long history of discomfort in the knees exacerbated by her work. He
saw appellant throughout 2013 and 2014 and managed her conservatively with occasional intraarticular injections, anti-inflammatory medication, and physical therapy. Dr. Boiardo noted that
on January 2, 2014 she underwent a left total knee replacement arthroplasty and progressed well
postoperatively. Appellant was treated on December 19, 2014 and complained of right knee
pain. Dr. Boiardo opined that appellant had preexisting arthritic changes of both knees, which
were directly caused by the demands of her occupation and she developed severe
decompensation of a previously well compensated arthritic knee. He noted that, as a result of
decompensation, appellant had to undergo a total knee replacement in January 2014.
Dr. Boiardo opined that the work-related stressors culminated in a knee replacement and
disability. He noted reviewing the job description for a letter carrier which required standing
eight hours a day, casing mail for approximately two-and-a-half hours per day, and delivering
mail for five and a half hours to six hours a day. Dr. Boiardo opined that appellant had a
propensity for preexisting osteoarthritic change in both knees, but the arthritis that she ultimately
realized in both knees, and which caused the left knee to be replaced, was due to her occupation.
He opined that the work-related occupational stresses placed on both knees directly exacerbated
the preexisting arthritic change and necessitated her left total knee replacement.
On February 17, 2015 OWCP advised appellant of the evidence needed to establish her
claim, particularly a physician’s reasoned opinion addressing the relationship between her
claimed condition and specific work factors.
In a statement dated March 2, 2015, appellant noted first having problems with her knees
in November 2011, but she continued to work. She indicated that her knees worsened and she
stopped work in December 2013. Appellant noted that as a letter carrier she was on her feet all
day delivering mail, carrying a mailbag weighing between 10 and 40 pounds, and walking about
3

No other claims are before the Board on the present appeal.

2

eight miles a day. She indicated that, prior to 2011, her knees were in good shape and she was
able to perform her job. Appellant was not engaged in any sports.
In an April 2, 2015 decision, OWCP denied appellant’s claim for compensation because
she failed to submit sufficient medical evidence to establish that the medical condition was
causally related to the accepted work factors.
On April 8, 2015 appellant requested a telephonic oral hearing, which was held before an
OWCP hearing representative on November 3, 2015. At the oral hearing, she described her work
duties and reasserted that in 2011 the employing establishment made her route longer so that she
had increased walking.
In a decision dated January 19, 2016, an OWCP hearing representative affirmed the
April 8, 2015 decision.
On August 26, 2016 appellant requested reconsideration. She submitted an August 10,
2016 report from Dr. Boiardo who noted that appellant had preexisting arthritic changes to both
knees directly caused by her occupation and developed severe decompensation of her previously
well-compensated arthritic knees. Dr. Boiardo noted conservative treatment failed and on
January 2, 2014 she had a left total knee replacement. He noted that the letter carrier job
required standing eight hours a day, casing mail for two and a half hours per day, and delivering
mail for five and a half to six hours a day. Dr. Boiardo indicated that for each step taken the
bodyweight load was two and a half times the bodyweight. He concluded that, from a
pathophysiologic/biomechanical perspective, appellant loaded two and a half times her
bodyweight through both arthritic knees eight hours a day for five days a week. Dr. Boiardo
opined that, as a direct cause and result of her job demands, her preexisting arthritis was
exacerbated causing compromise of the articular cartilage, a knee replacement, and disability.
He advised that appellant also had a history of tendinitis to both wrists, low back disc herniation,
and high blood pressure, which precluded her from complying with the requirements of the letter
carrier job after her knee replacement. Dr. Boiardo opined that, as a direct cause and result of
the work-related occupational disease as set forth in the job description, appellant sustained an
exacerbation of preexisting arthritic change to both knees and necessitated her left total knee
replacement. He indicated that the occupational disease and exposure did not cause the arthritic
change in both knees, but it certainly exacerbated any preexisting arthritic change and
culminated in left total knee replacement. Dr. Boiardo noted that appellant would require a right
total knee replacement in the future. He advised that appellant was permanently disabled as a
direct cause of the left total knee replacement, severe osteoarthritis of the right knee, tendinitis of
both wrists, and herniated disc in the low back.
In a decision dated March 24, 2017, OWCP denied modification of the January 19, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, the employee must submit sufficient evidence to establish that

3

he experienced a specific event, incident, or exposure occurring at the time, place, and in the
manner alleged. Appellant must also establish that such event, incident, or exposure caused an
injury.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
It is undisputed that appellant’s duties as a letter carrier included walking up and down
hills and stairs, carrying a mailbag, casing mail on a concrete floor, and prolonged walking.
However, the Board finds that the case is not in posture for decision as to whether the diagnosed
medical condition is causally related to the accepted factors of federal employment.
OWCP had denied appellant’s claim for compensation because she failed to submit
sufficient medical evidence to establish that the medical condition was causally related to the
accepted work factors. However, the Board finds that the medical evidence submitted by
appellant generally supports that repetitive duties required in her job caused or exacerbated her
bilateral knee condition.
Dr. Boiardo began treating appellant’s knees in 2013 and he consistently supported
causal relationship. In particular, his August 10, 2016 report, noted that appellant had
preexisting arthritic changes to both knees and that her employment exacerbated her condition.
Dr. Boiardo advised that, due to her work duties, appellant developed severe decompensation of
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
5

S.P., 59 ECAB 184, 188 (2007).

6

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

7

Solomon Polen, 51 ECAB 341 (2000).

4

her previously well-compensated arthritic knees. He described appellant’s work duties and noted
her history.
Dr. Boiardo opined that, as a result of her job demands, her preexisting arthritis was
exacerbated and necessitated her left total knee replacement and would require a future right
knee replacement. He explained that the occupational disease and exposure did not cause the
arthritis in both knees, but it exacerbated the preexisting arthritic change and culminated in total
left knee replacement. Dr. Boiardo advised that appellant was permanently disabled due to her
knee conditions as well as other conditions. Although his opinion is not sufficiently rationalized
to carry appellant’s burden of proof in establishing her claim, it is sufficient to require further
development of the case by OWCP.8
Proceedings under FECA are not adversary in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.9
Therefore, the Board finds that the case must be remanded to OWCP for preparation of a
statement of accepted facts concerning appellant’s working conditions and referral of the matter
to an appropriate medical specialist, consistent with OWCP procedures, to determine whether
appellant’s employment duties caused or aggravated the arthritis of both knees. Following this,
and any other further development as deemed necessary, OWCP shall issue a de novo decision
on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

John W. Butler, 39 ECAB 852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office dated March 24, 2017 is
set aside and the case is remanded for further development in accordance with this decision of
the Board.
Issued: December 6, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
MINT, West Point, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0965
Issued: February 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 23, 2020 appellant, through counsel, filed a timely appeal from a February 12,
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 over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 12, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left thumb and
wrist condition causally related to the accepted May 2, 2019 employment incident.
FACTUAL HISTORY
On May 6, 2019 appellant, then a 56-year-old die setter, filed a traumatic injury claim
(Form CA-1) alleging that on May 2, 2019, when changing dies, she hit the anvil using a blow
hammer and sustained a sharp pain in her left thumb and the inside of her left wrist while in the
performance of duty. She stopped work on May 2, 2019.
In a report dated May 7, 2019, Mandi Zaccagnino, a nurse practitioner, indicated that
appellant was disabled from work until cleared by an orthopedist. In another report dated May 7,
2019, prepared by an unidentified healthcare provider, appellant was treated for thumb and wrist
pain. X-rays were negative for fracture. Appellant was diagnosed with left hand pain and left
wrist pain.
On May 16, 2019 appellant was treated by Dr. Gina Del Savio, a Board-certified
orthopedist, for left hand pain. Dr. Del Savio reported that on May 2, 2019, while working as a
die setter, appellant hit an anvil with a plastic hammer and felt sharp left hand pain radiating from
the left thumb into the wrist. She noted that a May 7, 2019 x-ray of the left hand and wrist revealed
a .27 centimeter circumscribed spherical density along the ulnar carpal articulation, possibly a joint
body or detached spur, mild degenerative joint disease (DJD) of the first carpometacarpal (CMC)
articulation, and no fracture. Dr. Del Savio diagnosed left hand pain and recommended continued
use of the brace.4 She opined that the May 2, 2019 employment incident was the competent cause
of appellant’s injury.
In an attending physician’s report (Form CA-20) dated May 23, 2019, Dr. Del Savio
diagnosed left hand pain and checked a box marked “Yes” indicating that appellant’s condition
had been caused or aggravated by an employment activity. She returned appellant to work with
restrictions. In an accompanying work capacity evaluation (Form OWCP-5c) dated May 23, 2019,
Dr. Del Savio advised that appellant could work eight hours a day with restrictions of no lifting or
grasping with the left hand or any activity involving the left thumb and wrist.
In a June 6, 2019 development letter, OWCP advised that when appellant’s claim was first
received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
Therefore, payment of a limited amount of medical expenses was administratively approved
without formal consideration of the merits of her claim. OWCP, however, had reopened
appellant’s claim for consideration of the merits. It advised her of the deficiencies of her claim
and requested additional factual and medical evidence. OWCP afforded appellant 30 days to
respond.
In response to OWCP’s development letter, on June 11, 2019 appellant indicated that she
had no similar symptoms or disability prior to this injury. She reported pain when hitting the die

4

In a May 16, 2019 return-to-work note, she returned appellant to work light duty on May 27, 2019.

2

tooling with the blow hammer to lock the anvil in place. Appellant reported following standard
operating procedures when performing her job.
A June 14, 2019 magnetic resonance imaging (MRI) scan of the left hand revealed
osteoarthritic change including prominent marrow edema of the first metacarpal.
On June 24, 2019 Dr. Del Savio treated appellant in follow up for left hand pain, which
developed after a work injury on May 2, 2019. She reviewed the findings on the MRI scan and
diagnosed left hand pain and arthritis of the CMC joint of the left thumb and recommended bracing
and occupational therapy. Dr. Del Savio opined that the May 2, 2019 employment incident was
the competent medical cause of appellant’s injury. In an accompanying attending physician’s
report (Form CA-20) of even date, she diagnosed pain in the left hand and arthritis of the CMC
joint of the left thumb and checked a box marked “Yes” indicating that appellant’s condition had
been caused or aggravated by an employment activity. Dr. Del Savio advised that appellant
continue performing light-duty work.5
On June 28, 2019 Dr. Wael Fakhoury, a Board-certified family practitioner, evaluated
appellant for acute traumatic left hand pain, which began on May 2, 2019, while working as a die
setter. He reviewed the MRI scan of the left hand and diagnosed left hand pain, bilateral hand
pain, and trigger finger of the right hand, unspecified finger. Dr. Fakhoury opined that the May 2,
2019 employment incident was the competent medical cause of appellant’s injury. He excused
appellant from work until cleared by an orthopedist.
By decision dated July 18, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence submitted was insufficient to establish causal relationship between a
diagnosed medical condition and the accepted May 2, 2019 employment incident.
Appellant attended occupational therapy treatment from July 1 through August 8, 2019.6
In a report dated July 15, 2019, Dr. Del Savio noted a history of the May 2, 2019 work
injury and diagnosed left hand pain and arthritis of the CMC joint of the left thumb. She described
the anatomy and pathophysiology of the condition, noting chronic left hand pain was caused by
repetitive use of the hand to support a mold while striking pieces together with an anvil.
Dr. Del Savio opined that the May 2, 2019 employment incident was the competent medical cause
of appellant’s injury.
On August 5, 2019 Dr. Del Savio treated appellant in follow up for a May 2, 2019 work
injury. She diagnosed arthritis of the CMC joint of the left thumb and left hand pain. Dr. Del
Savio opined that, after reviewing the anatomy and pathophysiology of the condition, the
underlying thumb arthritis was aggravated by trauma at work, specifically, hitting a die held in the

5

In an attached note of even date, Dr. Del Savio reported treating appellant and released her to light duty.

6
Dr. Del Savio treated appellant on July 8, 2019 for right hand pain, which began at work on August 27, 2015,
when she was carrying heavy machinery and stepped off a platform and fell, causing the tool she was carrying to fall
on her right long finger. She diagnosed right middle finger trigger finger and requested authorization to perform a
right long finger trigger release.

3

left hand. She noted improvement with occupational therapy. Dr. Del Savio opined that the
May 2, 2019 employment incident was the competent medical cause of the injury.
In a September 30, 2019 letter, Dr. Del Savio noted that appellant presented on May 16,
2019 with left hand pain after a work accident on May 2, 2019. Appellant was treated in urgent
care and provided a brace. Dr. Del Savio opined that the incident likely aggravated her preexisting
arthritis causing her symptoms. Appellant returned on June 24, 2019 with persistent left hand pain.
Dr. Del Savio noted that an MRI scan revealed thumb arthritis at the CMC joint and recommended
occupational therapy. She treated appellant again on September 9, 2019 for ongoing complaints
in both hands. Dr. Del Savio diagnosed left thumb CMC joint arthritis aggravated by a work injury
and right hand long trigger finger secondary to another work injury. She noted that, due to the
physical nature of appellant’s job and the repetitive use of both hands for activities as a die setter,
the injury to one hand causes the other to be aggravated in a cyclical fashion. Dr. Del Savio opined
that, while the left thumb arthritis was not caused by the accident, it was aggravated by her
activities as a die setter at work. She recommended therapy and bracing and advised that appellant
was unable to work in any capacity.
Dr. Del Savio treated appellant again on October 7, 2019 and diagnosed arthritis of the
CMC joint of the left thumb. She opined that the DJD of the thumb CMC was aggravated by the
work injury. Dr. Del Savio recommended bracing and occupational therapy. She further opined
that the May 2, 2019 employment incident was the competent medical cause of appellant’s injury.
Appellant was treated in follow up by Dr. Del Savio on November 7, 2019 and reported
chronic left hand pain with additional pain in the wrist on the left side. Dr. Del Savio diagnosed
arthritis of the CMC joint of the left thumb and performed a Lidocaine injection. She again opined
that the incident described was the competent medical cause of appellant’s injury.
On November 15, 2019 appellant, through counsel, requested reconsideration.
By decision dated February 12, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 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,8 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

7

Supra note 2.

8
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).

4

employment injury.9 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.10
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, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.11
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.12 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left thumb
and wrist condition causally related to the accepted May 2, 2019 employment incident.
In a May 16, 2019 report, Dr. Del Savio treated appellant for left hand pain, which began
on May 2, 2019, when, while working as a die setter, she hit an anvil with a plastic hammer and
felt sharp left hand pain radiating from the left thumb into the wrist. She diagnosed left hand pain
and mild degenerative joint disease (DJD) of the first carpometacarpal (CMC) articulation, and no
fracture. Dr. Del Savio opined that the May 2, 2019 employment incident was the competent cause
of appellant’s injury. Similarly, in reports dated June 24, July 15, August 5, September 30,
October 7, and November 7, 2019, Dr. Del Savio diagnosed left hand pain and arthritis of the CMC
joint of the left thumb. She opined that, after reviewing the anatomy and pathophysiology of the
condition, the DJD of the thumb CMC was aggravated by the work injury, specifically, hitting a
die held in the left hand. Dr. Del Savio further opined that the May 2, 2019 employment incident
was the competent medical cause of appellant’s injury. Similarly, on June 28, 2019 Dr. Fakhoury
diagnosed left hand pain, bilateral hand pain, and trigger finger of the right hand, and opined that
the May 2, 2019 employment incident was the competent medical cause of appellant’s injury.
9
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).
10
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).
11

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).
12

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).
13
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).

5

While Drs. Del Savio and Fakhoury indicated that appellant’s left hand and thumb condition was
work related, they failed to provide medical rationale explaining the basis of their opinion. Drs.
Del Savio and Fakhoury did not explain how striking a die with an anvil aggravated the underlying
DJD of the thumb. To be of probative medical value, a medical opinion must explain how
physiologically the movements involved in the employment incident caused or contributed to the
diagnosed conditions.16 The Board has held that a medical report is of limited probative value on
a given medical issue if it contains an opinion which is unsupported by medical rationale.14 As
such, Drs. Del Savio’s and Fakoury’s reports are insufficient to establish appellant’s claim.
In a May 16, 2019 return-to-work note, Dr. Del Savio returned appellant to work light duty
on May 27, 2019. Similarly, in a work capacity evaluation (Form OWCP-5c) dated May 23, 2019,
she advised that appellant could work eight hours a day with restrictions. In these notes, Dr. Del
Savio did not offer an opinion as to whether a diagnosed condition was causally related to the
accepted employment incident. The Board has held that medical evidence that does not include
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.15 These notes from Dr. Del Savio are therefore insufficient to establish
appellant’s claim.
In Form CA-20 reports dated May 23 and June 24, 2019, Dr. Del Savio diagnosed left hand
pain and arthritis of the CMC joint of the left thumb and indicated by checking a box marked
“Yes” indicating that appellant’s condition had been caused or aggravated by an employment
activity. However, the Board has held that an opinion on causal relationship with an affirmative
check mark, without more by way of medical rationale, is insufficient to establish the claim.16
Moreover, pain is a symptom and not a clear diagnosis of a medical condition.17 As such, these
reports are insufficient to establish appellant’s claim.
Appellant submitted physical therapy treatment notes and a report dated May 7, 2019, by
Mandi Zaccagnino, a nurse practitioner, who indicated that appellant was disabled from work until
cleared by an orthopedist. Certain healthcare providers such as nurse practitioners and physical

14

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
15

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

16

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
17

D.S., id.; see also P.S., Docket No. 12-1601 (issued January 2, 2013).

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therapists, however,18 are not considered physicians as defined under FECA.19 Consequently,
these reports will not suffice for purposes of establishing entitlement to FECA benefits.20
Appellant also submitted a May 7, 2019 note prepared by an unidentified healthcare
provider who diagnosed left hand pain and left wrist pain. There is no evidence that this provider
is a physician. Medical documents not signed by a physician and lacking proper identification do
not constitute probative medical evidence.21
The record also contains a left wrist and hand MRI scan and x-rays as interpreted by
diagnostic radiologists. The Board has held that diagnostic tests, standing alone, lack probative
value on the issue of causal relationship as they do not address whether the employment incident
caused a diagnosed condition.22
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed conditions and the accepted May 2,
2019 employment incident, the Board finds that appellant has not met her burden of proof.
On appeal counsel argues that the evidence submitted firmly supports causal relationship
and disability. However, as explained above, the evidence of record lacks adequate medical
rationale on causal relationship and is, therefore, insufficient to meet appellant’s burden of proof
to establish the claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left thumb
and wrist condition causally related to a May 2, 2019 employment incident.

18

V.W., Docket No. 16-1444 (issued March 14, 2017) (physical therapy reports do not constitute competent medical
evidence because a physical therapist is not considered a “physician” as defined under FECA).
19

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that 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). See also Federal (FECA) Procedure Manual, Part 2 -- 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); C.P., Docket
No. 19-1716 (issued March 11, 2020) (a physician assistant is not considered a physician as defined under FECA).
20

21

See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568(1982) (a medical report may not be
considered as probative medical evidence if there is no indication that the person completing the report qualifies as a
“physician” as defined in FECA). .
22

V.Y., Docket No. 18-0610 (issued March 6, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the February 12, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.23
Issued: February 5, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

23
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

8