United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tupelo, MS, Employer
__________________________________________

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

Docket No. 20-1160
Issued: April 2, 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 May 16, 2020 appellant filed a timely appeal from a November 26, 2019 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 this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On July 31, 2019 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed general anxiety, stress, insomnia, shortness of
breath, headaches and depression due to factors of his federal employment as a result of being
1

5 U.S.C. § 8101 et seq.

harassed, bullied, and threatened by his postmaster and supervisor. He noted that he first became
aware of his condition and realized its relation to his federal employment on June 17, 2019. On
of the reverse side of the claim form, appellant’s postmaster, T.P., controverted the claim, asserting
that the evidence was insufficient to support that the claimed condition occurred in the performance
of duty. She noted that appellant stopped work on June 15, 2019.
OWCP received medical reports from Dr. Clinton L. Washington, a Board-certified family
practitioner, dated June 17 and July 25, 2019, who treated appellant for a deteriorating mental
condition and right arm/elbow pain.
In a development letter dated August 5, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the factual and medical evidence
necessary to establish his claim and also provided a questionnaire for completion. In a separate
letter of even date, OWCP requested that the employing establishment provide details related to
appellant’s claim and whether they concurred with his allegations. Both parties were afforded 30
days to respond.
OWCP continued to receive medical evidence.
OWCP received a March 19, 2012 letter from the employing establishment to union
representatives regarding medical restrictions for employees. Also received was a February 9,
2018 posting from PostalReporter.com entitled “USPS reminds postal employees of ZERO
Tolerance Policy on threats and violence,” and a guideline for temporary light-duty medical
documentation for nonjob-related conditions.
In a June 27, 2019 designation notice under the Family and Medical Leave Act (FMLA),
appellant’s leave request was approved for the period June 17 through September 19, 2019.
In an undated statement, appellant alleged that he was bullied, harassed, and threatened by
postmaster T.P. and supervisor F.G., from June 7 through 15, 2019. He asserted that he was
harassed for using eight hours of FMLA on June 1, 2019. Appellant indicated that the leave
request was approved “yet I could tell they didn’t like it.” He reported having a doctor’s statement
prohibiting him from working overtime due to an elbow injury.2 Appellant noted that the prior
postmaster never asked for an updated physician’s note, but his current postmaster required an
updated note. He further alleged that his mail route was monitored by a supervisor. Appellant
indicated that on June 7, 2019 he requested 1 hour and 45 minutes of assistance on his mail route
because he was unable to work over eight hours pursuant to doctor’s orders regarding his elbow.
He alleged that T.P. and F.G., initially would not honor his doctor’s excuse, but ultimately took
30 minutes off his mail route, which appellant believed was inadequate. Appellant reported trying
to reason with T.P. and F.G., but they repeatedly cut him off, would not let him finish his sentence,
and told him he was wasting time. He subsequently began his mail route and then called into the
station to report that he was having difficulty completing his route. Within 20 minutes T.P. sent
another supervisor, T.C., out to assist; however, as appellant loaded the mail and extra packages
2

The Board notes that appellant also claimed a right elbow condition resulting from factors of his federal
employment. However, OWCP has not issued a final decision relative to this claim. Therefore, this issue is not before
the Board on the current appeal. See 20 C.F.R. § 501.2(c).

2

into his van he aggravated his elbow condition. Appellant returned to the station with the mail and
requested and was granted FMLA leave. He reported that when he got off work on June 15, 2019,
he was treated by his physician for increased anxiety, insomnia, and an inability to concentrate.
He noted filing two police reports that week, he contacted the postal inspector’s office, and filed
two Equal Employment Opportunity (EEO) complaints. Appellant indicated that he ultimately
dropped the two EEO complaints and retired in June 2020.
In another undated statement, appellant provided in chronological order the employment
factors that allegedly caused his condition. He indicated that on April 11, 2019, he used FMLA
leave for an elbow injury. On April 12, 2019 appellant reported for work and F.G. harassed and
threatened him, read aloud a mandatory unscheduled absence report, and informed him that failure
to be in regular attendance would result in disciplinary action and removal from his position. He
noted on June 1, 2019, he was on FMLA leave and when he returned to work, T.P., requested that
he submit guidelines for temporary light-duty medical documentation for a nonjob-related injury.
Appellant indicated that as he was not requesting light duty the form was inappropriate and T.P.
became angry. On June 7, 2019 he requested 1 hour and 45 minutes assistance for his mail route
and T.P. informed him that she was not required to provide him help because his doctor’s note was
outdated. Nonetheless, T.P. provided appellant 30 minutes of assistance for his route, which he
found inadequate. Appellant asserted that he was ordered to complete an almost 10-hour route in
8 hours. He reported providing an updated doctor’s note on June 10, 2019. F.G. requested that
appellant designate a time for his breaks; however, appellant reported taking breaks as he needed.
She subsequently held an investigative interview where she alleged that he stopped at an address
on his route for 18 minutes. Appellant confirmed this and indicated that he was calling the postal
inspector. He contends that beginning in April 2019 he was harassed, bullied, “screamed at,” and
monitored which caused him to develop stress.
In an undated statement, J.B. reported working as a window clerk for the employing
establishment alongside T.P. for 20 years. He indicated that T.P. harassed, bullied, threatened,
and belittled appellant for using FMLA leave.
In another undated statement C.G., a city carrier, reported hearing T.P. and the previous
postmaster talking about appellant stating “I’m gonna get that guy!!” He further noted that in the
mornings while appellant loaded his mail truck T.P. would stand behind him and state “Don’t talk
about this or that … Just load the truck.”
In a statement dated August 14, 2019, T.P. challenged appellant’s allegations that his job
duties and management caused his stress and depression. She indicated that appellant was a
seasoned carrier and has had the same job requirements and route for over 25 years. T.P. noted
that appellant was not on the overtime list and was not expected or required to exceed his eighthour restriction. She indicated that there were deadlines the employees must adhere to, which
were in line with operational needs that have been in place throughout his employment. T.P.
reported that appellant had controversy with coworkers because they have had to pick up his slack
throughout the years. She reported conflict with appellant when the assistance he requests from
management was not approved because it is unwarranted. T.P. noted that appellant would become
argumentative, challenging and hostile, or fail to put forth conscientious effort to perform his
duties in an efficient manner as required pursuant to postal regulations. She further noted that
when management performed the required street observation appellant called the postal inspector

3

and police and reported that he was being harassed. T.P. advised that when he requested assistance
on his mail route the requests were approved when warranted. She further noted that she was not
aware of other employees or documents that corroborate appellant’s allegations. T.P. advised that
no accommodation was requested or provided and appellant’s job duties performed were in line
with his official job description. She indicated that appellant performed his required duties as long
as he got his way; but when he did not get his way, he would initiate controversy with his
coworkers. T.P. submitted a job description for a city carrier position. The job description for a
city carrier entailed delivering and collecting mail on foot or by vehicle under varying conditions
in a prescribed area within a city with functional requirements of walking and standing of “8+
hours” and use of fingers for fine manipulation of “8 hours.”
On September 11, 2019, S.D., a representative from the employing establishment’s health
and resource management office, challenged appellant’s claim based on fact of injury, causal
relationship, and performance of duty. She indicated that appellant had not provided sufficient
medical evidence to substantiate his allegations of harassment and bullying. S.D. further noted
that there were no new or additional job requirements attributing to his allegations of work-related
stress or anxiety and no corroboration for his allegations.
OWCP continued to receive medical evidence.
Appellant submitted two EEO complaints filed on June 9, 2019 for harassment occurring
on June 7, 2019. In the first EEO complaint, he alleged that he could only work eight hours a shift
with no overtime. Appellant asserted that his postmaster T.P. would not honor his FMLA request
and assigned him extra packages and loops. He alleged that he was verbally abused, intimidated,
and worked in a hostile work environment. In another EEO complaint appellant alleged
harassment by his supervisor F.G. He indicated that on April 11, 2019 he used FMLA leave and
when he returned to work the next day, F.G., read aloud a mandatory unscheduled absence report
noting that FMLA was not protected and threatened that if he was not in regular attendance he
would face disciplinary action including removal from the employing establishment.
OWCP received two police incident reports filed by appellant dated June 11 and 12, 2019.
On June 11, 2019 appellant went to the police department and reported workplace harassment. He
indicated that on June 7, 2019 he informed his postmaster T.P. that his FMLA condition was
bothering him and he could not work past eight hours. Appellant alleged that he felt threatened
and harassed when his postmaster and supervisor threatened him with absent without leave
(AWOL) status if he left work. Similarly, on June 12, 2019, a police officer responded to an
address regarding a complaint of harassment. Appellant reported that earlier in the day his
supervisor F.J. and postmaster T.P. harassed him for being injured and would not honor his FMLA
orders regarding working overtime.
By decision dated November 26, 2019, OWCP denied appellant’s emotional condition
claim, finding that he had not established a compensable employment factor. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.

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LEGAL PRECEDENT
An employee seeking benefits under FECA3 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.4 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.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying and supporting employment factors or incidents alleged to have
caused or contributed to his or her claimed emotional condition; (2) rationalized 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.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA. When disability results from an emotional reaction to regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.8 On the other hand, the disability is not covered when it results from such
factors as an employee’s fear of a reduction-in-force or his or her frustration from not being
permitted to work in a particular environment or to hold a particular position.9
Administrative and 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 FECA.10 However, the Board
3

5 U.S.C. § 8101 et seq.

4

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

5

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).
6
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).
7

T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
8

L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10
See G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170-71 (2001), 52
ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

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has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.13
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.14
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 compensable factors of
employment and may not be considered.15 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.16 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence which has been submitted.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
The Board notes that appellant has attributed his emotional condition, in part, to Cutler18
factors. Appellant alleged that he was overworked and was ordered to complete a 10-hour mail
route in 8 hours. He indicated that on June 7, 2019 he requested 1 hour and 45 minutes of
assistance on his mail route because he was unable to work over 8 hours pursuant to doctor’s orders
regarding his elbow. Appellant alleged that his postmaster, T.P., and his supervisor, F.G., initially
would not honor his doctor’s excuse because it was outdated, but ultimately took 30 minutes off
11

See O.G., Docket No. 18-0359 (issued August 7, 2019); D.R., Docket No. 16-0605 (issued October 17, 2016);
William H. Fortner, 49 ECAB 324 (1998).
12

B.S., Docket No. 19-0378 (issued July 10, 2019); Ruth S. Johnson, 46 ECAB 237 (1994).

13

T.G., Docket No. 19-0071 (issued May 28, 2019); Marlon Vera, 54 ECAB 834 (2003).

14

Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

15

Dennis J. Balogh, 52 ECAB 232 (2001).

16

Charles E. McAndrews, 55 ECAB 711 (2004).

17

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

18

Supra note 7.

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his mail route, which appellant believed was inadequate. He related that his current work
environment caused him stress and anxiety.
The Board has held that overwork, when substantiated by sufficient factual information to
corroborate appellant’s account of events, may be a compensable factor of employment.19
However, appellant failed to provide any witness statements or corroborating evidence to support
his allegations of overwork. The job description for a city carrier included delivering and
collecting mail on foot or by vehicle under varying conditions in a prescribed area within a city
with functional requirements of walking and standing of “8+ hours” and use of fingers for fine
manipulation of “8 hours.” While appellant asserts that his mail route was over eight hours, this
is consistent with his job description. His notes that on June 7, 2019 he requested 1 hour and 45
minutes of assistance, and the record supports that his postmaster, T.P., and supervisor, F.G., took
30 minutes off of his mail route. Appellant did not otherwise provide specific dates or times or
other details sufficient to establish overwork.20 Furthermore, the employing establishment has
denied that appellant’s regularly or specially assigned duties required additional assistance. T.P.
noted that there were deadlines the employees must adhere to, which were in line with operational
needs that have been in place throughout his employment. She advised that when appellant
requested assistance on his mail route, the requests were approved when warranted. T.P. further
indicated that appellant performed his required duties of his job in accordance with expectations.21
Appellant’s other allegations pertain to administrative and personnel actions. As a general
rule, administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regularly or specially
assigned work duties of the employee and are not covered under FECA.22 In Thomas D. McEuen,23
the Board has held that an employee’s emotional reaction to administrative actions or personnel
matters taken by the employing establishment is not covered under FECA as such matters pertain
to procedures and requirements of the employer and do not bear a direct relation to the work
required of an employee. However, the Board has also held that, where the evidence establishes
error or abuse on the part of the employing establishment in what would otherwise be an
administrative matter, such action will be considered a compensable employment factor.24 In
determining whether the employing establishment has erred or acted abusively, the Board will

19

See Bobbie D. Daly, 53 ECAB 691 (2002); T.M., Docket No. 15-1774 (issued January 20, 2016).

20

See Y.J., Docket No. 15-1137 (issued October 4, 2016) (the Board noted that a claimant did not provide the
requisite detail regarding specific dates and the duties she performed, which allegedly overwhelmed her and caused
her stress).
21

Supra note 18.

22

Matilda R. Wyatt, 52 ECAB 421 (2001).

23

See supra note 9.

24

William H. Fortner, 49 ECAB 324 (1998).

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examine the factual evidence of record to determine whether the employing establishment acted
reasonably.25
Appellant identified incidents of alleged error and abuse in administrative matters on the
part of his supervisors, including: denying his request for FMLA leave; requiring him to submit
an updated physician’s note regarding a nonwork-related elbow injury;26 requesting that he submit
guidelines for temporary light-duty medical documentation for a nonjob-related injury; requesting
that appellant designate a time for his breaks; monitoring his activities on his mail route; and not
providing assistance on his mail route when requested. The Board has held that disputes regarding
the handling of leave requests and attendance matters,27 requests for medical documentation,28 the
assignment of work and modification of work schedule,29 unreasonably monitoring his activities
at work,30 the filing of grievances and EEOC complaints,31 and being required to work outside of
his restrictions,32 are all administrative functions of the employing establishment and, absent error
or abuse, a claimant’s disagreement or dislike of such a managerial action is not compensable.
Appellant has not submitted the necessary corroborating evidence to establish error or abuse by
management in these administrative and personnel matters.33
The record reveals that appellant requested leave for an elbow injury under the FMLA was
approved for April 11, June 1, and June 17 through September 19, 2019. The leave requests were
approved. Appellant alleged that, T.P., and his supervisor, F.G., initially would not honor his
doctor’s excuse because it was outdated and would not provide assistance on his mail route when
requested. However, the record supports that T.P. and F.G. honored his doctor’s excuse and
ultimately took 30 minutes off his mail route on June 7, 2019. T.P. indicated that appellant was a
seasoned carrier and has had the same job requirements and route for over 25 years. She noted
that appellant was not on the overtime list and was not expected or required to exceed his eighthour restriction. T.P. advised that when appellant requested assistance on his mail route the
requests were approved when warranted. She reported instances of conflict when the assistance
he requested was not approved by management because it is unwarranted and appellant would
become argumentative, challenging and hostile or put forth conscientious effort to perform his
25

Ruth S. Johnson, 46 ECAB 237 (1994).

26

Appellant alleged that his prior postmaster never asked for an updated physician’s note regarding his elbow
injury.
27
B.O., Docket No. 17-1986 (issued January 18, 2019); Lori A. Facey, 55 ECAB 217 (2004); Judy L. Kahn, 53
ECAB 321 (2002).
28

D.W., Docket No. 19-0449 (issued September 24, 2019); W.M., Docket No. 15-1080 (issued May 11, 2017);
James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).
29

V.M., Docket No. 15-1080 (issued May 11, 2017); Donney T. Drennon-Gala, 56 ECAB 469 (2005).

30

Dennis J. Balogh, supra note 14.

31

B.O., supra note 27; James E. Norris, 52 ECAB 93 (2000).

32

J.W., Docket No. 17-0999 (issued September 4, 2018).

33

R.V., Docket No. 18-0268 (issued October 17, 2018).

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duties in an efficient manner as required pursuant to postal regulations. With regard to appellant’s
allegation that management improperly monitored his work activities, the Board finds this
allegation without merit. Although the monitoring of activities at work is generally related to the
employment, it is an administrative function of the employing establishment, and not a duty of the
employee.34 TP. explained that management performed required street observation and appellant
called the postal inspector and police and reported he was being harassed. The Board thus finds
that the evidence does not show that the employing establishment acted unreasonably in
monitoring appellant’s work.
Appellant further alleged that, beginning in April 2019, he was harassed, bullied,
“screamed at,” and threatened by T.P. and F.G., who created a hostile work environment. On
April 12, 2019 he alleged that F.G. harassed and threatened him informing him that failure to be
in regular attendance would result in disciplinary action and removal from his position. Appellant
asserted that he was harassed for using eight hours of FMLA on June 1, 2019. He indicated that
the leave request was approved; however, management “didn’t like it.” Appellant alleged that on
June 7, 2019, T.P. and F.G. repeatedly cut him off, would not let him finish his sentence, and told
him he was wasting time. He filed an EEO complaint on June 9, 2019 for non-sexual harassment
occurring on April 11 and June 7, 2019. Appellant asserted that his postmaster, T.P., would not
honor his FMLA request and assigned him extra packages and loops to deliver and threatened that
if he left work she would consider him AWOL. To the extent that disputes and incidents alleged
as constituting harassment and discrimination by supervisors and coworkers are established as
occurring and arising from the employee’s performance of his or her regular duties, these could
constitute employment factors.35 However, for harassment or discrimination to give rise to a
compensable disability under FECA, there must be evidence that harassment or discrimination did
in fact occur. Mere perceptions of harassment or discrimination are not compensable under
FECA.36 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 with probative and reliable evidence.37 The
Board notes, however, that grievances and EEO complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.38 There is no corroboration of workplace
harassment or unfair treatment by appellant’s managers. While appellant filed an EEO complaint
against his supervisor, F.G., and postmaster, T.P., for harassment and disparate treatment, the
record does not contain a final EEO decision finding that the employing establishment committed
error or abuse.39 He has not established allegations of harassment with probative and reliable
evidence. Appellant submitted a statement from C.G., a city carrier, who reported hearing T.P.
34

See Dennis J. Balogh, supra note 14; see also John Polito, 50 ECAB 347 (1999).

35

David W. Shirey, 42 ECAB 783, 795-96 (1991).

36

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

37

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

38

Id.

39
See S.W., Docket No. 17-1016 (issued September 19, 2018); A.C., Docket No. 18-0507 (issued November 26,
2018); J.E., Docket No. 17-1799 (issued March 7, 2018).

9

and the postmaster talking about appellant stating “I’m gonna get that guy!!” He further noted that
in the mornings while appellant loaded his mail truck, T.P. would stand behind him and state
“Don’t talk about this or that … Just load the truck.” However, these general statements from a
coworker are insufficient to establish that appellant was harassed, bullied, or intimidated. The
Board finds, therefore, that appellant failed to provide sufficient evidence to substantiate this
assertion and to establish that the employing establishment acted unreasonably in these matters.
Appellant has not submitted the necessary corroborating evidence to establish harassment as a
compensable employment factor.40 Therefore, he has not met his burden of proof.
On appeal appellant reiterates that he has established his emotional condition claim. As
explained above, he has not established his claim for an emotional condition as he has not
established any compensable employment factors.41
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.

40

See supra note 13.

41
As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1307
Issued: December 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 30, 2012 appellant filed a timely appeal from a March 30, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as untimely and insufficient to establish clear evidence of error and a May 14,
2012 nonmerit decision denying his request for a hearing as it was made after he requested
reconsideration. The Board docketed the appeal as No. 12-1307.
The Board has duly considered this matter and finds that the case is not in posture for
decision. This case has previously been before the Board. By decision dated December 9, 2009,
the Board affirmed a May 1, 2009 decision finding that appellant did not establish a recurrence
of a medical condition on July 24, 2004 causally related to his April 18, 2002 employment
injury.1 The Board also affirmed another May 1, 2009 decision denying his request for a

1

Docket No. 09-1413 (issued December 9, 2009). OWCP accepted that on April 18, 2002 appellant sustained a
temporary aggravation of preexisting lumbar degenerative disc disease at L4-5 and L5-S1 and lumbago due to an
April 18, 2002 work injury. It found that the conditions had resolved on May 6, 2002, the date his physician
released him to resume employment. On February 1, 2009 he filed a notice of recurrence of disability on July 20,
2004 due to his April 18, 2002 work injury.

schedule award after finding that he had not submitted medical evidence showing that he
sustained a permanent impairment of the lower extremities.
On March 11, 2012 appellant requested reconsideration of the May 1, 2009 decision. He
contended that his condition had materially worsened. Appellant related that he had submitted
new medical evidence under file number xxxxxx248 relevant to lumbar strain but that the case
was closed. He referred to accompanying new medical evidence showing L4-5 spondylolithesis
under file number xxxxxx248. In support of his request for reconsideration, appellant submitted
a December 20, 2011 impairment evaluation from a physical therapist and numerous medical
reports originally provided under other file numbers.
On March 18, 2012 appellant argued that all his claims regarding his back and right leg
should be combined. He asserted that he was requesting reconsideration of the May 1, 2009
decision based on newly submitted medical evidence. Appellant referenced medical evidence
submitted in connection with another file number.
By decision dated March 30, 2012, OWCP denied appellant’s request for reconsideration
as untimely filed and insufficient to establish clear evidence of error. It stated:
“Your March 18, 2012 request for reconsideration cites new evidence and medical
records. Since your request is untimely, we are not obligated to review new
evidence. You did not explain in your reconsideration request how the prior
decision or decisions were in error. Therefore, there is no basis for a review.”
This is not, however, the proper standard. In order to determine whether appellant has
established clear evidence of error, OWCP will review the evidence submitted and arguments
raised in support of the request and determine whether such evidence or argument is sufficient to
show error in its prior decision.2 It shall then issue a decision containing findings of fact and
conclusions of law.3 OWCP did not discuss any evidence or argument submitted in support of
the reconsideration request. Its failure to provide factual findings and explain the basis for its
conclusion that appellant did not demonstrate clear evidence of error precludes the Board’s
review of the decision. The case, therefore, is remanded to OWCP for an appropriate decision
containing a detailed explanation of its determination regarding its denial of his reconsideration
request.4

2

See George C. Vernon, 54 ECAB 313 (2003).

3

20 C.F.R. § 10.126.

4

In view of the Board’s finding regarding the denial of his request for reconsideration, the issue of whether
OWCP properly denied appellant’s request for a hearing as it was made after he requested reconsideration is moot.

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 14 and March 30, 2012 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: December 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 20-1032
Issued: November 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 15, 2020 appellant, through counsel, filed a timely appeal from a February 25,
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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 25, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On February 22, 2019 appellant, then a 53-year-old automation clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome in his hands due to
factors of his federal employment. He explained that he was experiencing intense pains in his
hand from “working the machines” and that the pain was causing him to have trouble sleeping.
Appellant indicated that he first became aware of his condition and first realized it was caused or
aggravated by his federal employment on February 22, 2019. He did not stop work.
In a February 25, 2019 letter, the employing establishment controverted appellant’s claim,
contending that he had not submitted medical evidence from a physician explaining how his
condition was causally related to his employment.
In a medical report dated February 25, 2019, Dr. Denise Hooks-Anderson, Board-certified
in family medicine, evaluated appellant for multiple conditions, including bilateral carpal tunnel
syndrome. She prescribed a medication and instructed him to return if his symptoms continued.
In a development letter dated March 11, 2019, OWCP advised appellant of the factual and
medical deficiencies of his claim. It asked him to complete a questionnaire to provide further
details regarding the circumstances of his claimed injury and requested a narrative medical report
from his treating physician, which contained a detailed description of findings and diagnoses,
explaining how his work activities caused, contributed to, or aggravated his medical conditions.
OWCP afforded appellant 30 days to respond.
In a March 9, 2019 medical note, Dr. Maria Scarbrough, Board-certified in emergency
medicine, noted that appellant was seen on March 9, 2019 for “carpal tunnel syndrome on both
sides.” She referred him to follow up with Dr. Steven Morton, a Board-certified orthopedic
surgeon, and advised that he could return to work on March 12, 2019.
In a March 14, 2019 medical note, Dr. Richard Hehmann, a Board-certified plastic
surgeon, indicated that appellant was seen for his bilateral hand condition and advised that he could
return to work on March 18, 2019.
In a March 26, 2019 diagnostic report, Dr. Boris Khariton, Board-certified in physical
medicine, performed an electromyography and nerve conduction velocity (EMG/NCV) test and
noted appellant’s history of bilateral upper extremity pain and paresthesia. On examination, he
found electrodiagnostic evidence of a severe bilateral median motor-sensory focal distal
neuropathy at the wrist which could represent bilateral carpal tunnel syndrome.
In an April 15, 2019 medical note, Dr. Hehmann indicated that appellant would need to be
held out of work from April 10, 2019 through approximately May 6, 2019 for surgery and
recovery.

2

By decision dated April 24, 2019, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that his diagnosed bilateral
carpal tunnel syndrome was causally related to the accepted factors of his federal employment.
On May 11, 2019 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review.
In a May 2, 2019 medical note, Dr. Hooks-Anderson noted that appellant completed a
stress test which was negative for ischemic changes and cleared him for carpal tunnel surgery.
In a May 7, 2019 medical note, Dr. Hehmann explained that appellant would be undergoing
surgery on May 17, 2019 and would not be released to return to work until after his postoperative
appointment on June 3, 2019.
In a May 9, 2019 medical note, Dr. Hooks-Anderson diagnosed carpal tunnel syndrome
and opined that appellant’s condition was the result of his frequent, repetitive work with his hands.
In response to OWCP’s questionnaire, appellant submitted a May 11, 2019 statement in
which he described his contributing work factors as working with a delivery bar code sorter
(DBCS) machine to distribute and process mail. His responsibilities included feeding and pulling
mail, sweeping and packing machines, and labeling trays. Appellant asserted that he performed
these duties daily for 10 hours per day. He explained that his hands initially began hurting a year
prior and that the pain had been present continuously. Appellant experienced numbness in his
fingertips, pain in his wrists, as well as weakness and excruciating pain in his hands at night. He
had no previous injuries or diagnoses to his hands, wrists, or arms prior to his current claim.
In a May 30, 2019 medical note, Dr. Hehmann opined that appellant would be unable to
return to work until approximately June 24, 2019 as he was undergoing a left carpal tunnel release
on June 7, 2019. In medical notes dated June 20 and August 5, 2019, he opined that appellant
could return to work on July 8 and August 19, 2019, respectively.
By decision dated August 22, 2019, OWCP’s hearing representative affirmed OWCP’s
April 24, 2019 decision.
OWCP continued to receive evidence. In operative reports dated May 17 and June 7, 2019,
Dr. Hehmann indicated that appellant underwent a right and left carpal tunnel release, respectively,
in order to treat his bilateral carpal tunnel syndrome. In a subsequent June 24, 2019 operative
report, he indicated that appellant underwent an exploration, incision and drainage of a left carpal
tunnel wound.
In an August 19, 2019 medical note, Dr. Hehmann advised that appellant would need to
remain out of work until his next appointment on September 9, 2019.
In therapy treatment notes dated from August 22 to 29, 2019, Katie Biggs, an occupational
therapist, made note of the May 17 and June 7, 2019 carpal tunnel release surgeries appellant
underwent in order to treat his bilateral carpal tunnel syndrome. She evaluated the pain he
continued to experience in his hands and provided updates for the therapy he underwent to treat
his remaining symptoms.

3

In a September 20, 2019 medical note, Dr. Hooks-Anderson diagnosed carpal tunnel
syndrome status post carpal tunnel release surgery and opined that appellant’s condition was
caused by the repetitive actions of his employment.
On December 12, 2019 appellant requested reconsideration of OWCP’s August 22, 2019
decision.
In an August 20, 2019 therapy information sheet, Dr. Hehmann referred appellant to hand
therapy related to surgeries he underwent on April 15 and June 7, 2019.
In radiology reports dated December 30, 2019, Dr. Timothy J. LeeBurton, a Boardcertified orthopedic surgeon, indicated that appellant underwent a magnetic resonance imaging
(MRI) scan of his left and right wrists and reported no acute osseous abnormalities in either
examinations.
By decision dated February 25, 2020, OWCP denied modification of its August 22, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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 identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

4

between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.
In medical notes dated May 9 and September 20, 2019, Dr. Hook-Anderson diagnosed
carpal tunnel syndrome and opined that appellant’s condition was the result of the frequent and
repetitive actions of his federal employment. While she provided an affirmative opinion on causal
relationship, she did not offer any medical rationale sufficient to explain why she believes
appellant’s employment duties could have resulted in or contributed to his diagnosed condition.
Without explaining how the frequent and repetitive actions of appellant’s employment caused or
aggravated his bilateral carpal tunnel syndrome, Dr. Hooks-Anderson’s medical notes are of
limited probative value.11
Dr. Hooks-Anderson’s remaining medical notes dated February 25 and May 2, 2019 noted
her examination of appellant for his bilateral carpal tunnel syndrome and explained that he was
cleared to move forward with surgery after completing a stress test. 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.12 For this reason, Dr. Hooks-Anderson’s
remaining medical evidence is insufficient to meet appellant’s burden of proof.
In operative reports dated from May 17 to June 24, 2019, Dr. Hehmann detailed right and
left carpal tunnel releases appellant underwent to treat his bilateral carpal tunnel syndrome, as well
as an exploration, incision and drainage of a left carpal tunnel wound. In medical notes dated from
March 14 to August 19, 2019, he noted the dates of appellant’s surgical procedures and provided
estimated dates of when he would be able to return to work. As stated above, however, 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.13 For this reason, Dr. Hehmann’s medical
evidence is insufficient to meet appellant’s burden of proof.
In her March 11, 2019 medical note, Dr. Scarbrough evaluated appellant for carpal tunnel
syndrome on both sides and referred him for a follow up appointment with Dr. Morton. As she

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

Id.

5

did not offer an opinion regarding the cause of appellant’s condition, Dr. Scarbrough’s medical
note is of no probative value on the issue of causal relationship.14
Appellant submitted diagnostic reports dated March 26 and December 30, 2019 from
Drs. Khariton and LeeBurton, respectively. Dr. Khariton’s EMG test found electrodiagnostic
evidence, which he explained could represent bilateral carpal tunnel syndrome while
Dr. LeeBurton’s MRI scans of appellant’s wrists found no acute osseous abnormalities. The Board
has held, however, that diagnostic test reports standing alone lack probative value on the issue of
causal relationship as they do not address the relationship between accepted employment factors
and a diagnosed condition.15 For this reason, these diagnostic reports are insufficient to meet
appellant’s burden of proof.
The remaining medical evidence consists of therapy notes dated from August 22 to 29,
2019 from an occupational therapist. Certain healthcare providers such as physical therapists,
nurses, physician assistants, and social workers are not considered physician[s] as defined under
FECA.16 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence establishing that his bilateral
carpal tunnel syndrome is causally related to the accepted factors of his federal employment, the
Board finds that he has not met his burden of proof to establish his 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 his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.

14

Id.

15

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

16
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59
ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or
certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AL DHAFRA AIR FORCE BASE,
United Arab Emirates, Employer
__________________________________________

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

Docket No. 08-458
Issued: June 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 9, 2007 merit decision denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on February 3, 2007.
FACTUAL HISTORY
On September 11, 2007 appellant, a 54-year-old sexual assault response coordinator, filed
a traumatic injury claim (Form CA-1) alleging that on February 3, 2007 he cracked three teeth in
the employing establishment dining facility, while he was “chewing and bit on a hard surface.”
He stated that he went to the medical clinic on base, from which he was taken downtown to the

dental clinic in Abu Dhabi. Appellant indicated that he underwent oral surgery for crownlengthening on “numbers 3-5” while he was deployed in the “UAE,” but returned to Columbus
Air Force Base before the work was completed.
On July 2, 2007 the Office notified appellant that the evidence submitted was insufficient
to establish his claim. The Office advised him to provide within 30 days additional information
and documentation, including details surrounding the alleged incident, and a physician’s report
containing a specific diagnosis and an opinion supported by a medical explanation as to how the
reported work incident caused or aggravated the claimed injury. Appellant did not submit any
medical evidence in support of his claim.
By decision dated November 9, 2007, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that he had sustained an injury in the performance of duty. It
found that he had failed to establish that the events occurred as alleged, and that he had
submitted no medical evidence that provided a diagnosis which could be connected to the
claimed event.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether fact of injury has been established. Generally, fact
of injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged by a
preponderance of the reliable, probative and substantial evidence.4 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, as alleged, but the employee’s statements must be consistent with
surrounding facts and circumstances and his or her subsequent course of action. Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment,
may cast doubt on an employee’s statements in determining whether he or she has established a
prima facie case.5 However, an employee’s statement alleging that an injury occurred at a given
1

The Board notes that the record on appeal contains additional evidence which was not before the Office at the
time it issued its November 9, 2007 decision. The Board has no jurisdiction to review this evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5
ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to the Office, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

Charles B. Ward, 38 ECAB 667 (1987).

5

See Paul Foster, 56 ECAB 208 (2004). See also Merton J. Sills, 39 ECAB 572, 575 (1988).

2

time and in a given manner is of great probative value and will stand, unless refuted by strong or
persuasive evidence.6
The second component is whether the employment incident caused a personal injury, and
generally this can be established only by medical evidence.7 As part of this burden, the claimant
must present rationalized medical opinion evidence.8 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.9 The opinion of the physician must be based on a complete factual and
medical background of the claimant,10 and must be one of reasonable medical certainty,11
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.12
ANALYSIS
While the Office properly found that appellant was in the performance of duty while he
was eating lunch in the employer’s cafeteria on February 3, 2007, the Board finds that appellant
has failed to meet his burden of proof in establishing that he sustained a traumatic injury while in
the performance of duty on February 3, 2007. The evidence does not establish that the alleged
incident caused a personal injury.
Appellant noted on his CA-1 form that he cracked three teeth in the employing
establishment dining facility, while he was “chewing and bit on a hard surface.” However, he
provided no detailed account of injury, and presented no evidence regarding the specific
mechanism of injury, as required in a claim for traumatic injury.13 Appellant failed to identify
what he was eating when the alleged injury occurred. He did not indicate whether he
experienced pain when his teeth cracked, or describe the nature of the “hard surface” that caused
his alleged injury.

6

Thelma S. Buffington, 34 ECAB 104 (1982).

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Joseph T. Gulla, 36 ECAB 516 (1985).

9

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, 54 ECAB 306 (2003).

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

See Tracey P. Spillane, 54 ECAB 608 (2003) (where an employee filed a claim alleging that she sustained an
allergic reaction at work, but failed to clearly identify, or report to her physicians, the aspect of her employment
which she believed caused the claimed condition, the Board held that she did not adequately specify the employment
factors which caused her need for medical treatment; nor did she specify details such as the extent and duration of
exposure to any given employment factors). See also Betty J. Smith, 54 ECAB 174 (2002).

3

The Board also notes that appellant submitted no medical evidence in support of his
claim. He stated that he went to the medical clinic on base, from which he was taken downtown
to the dental clinic in Abu Dhabi, and that he underwent oral surgery for crown-lengthening on
“numbers 3-5” while he was deployed in the “UAE.” However, appellant provided no evidence
to support any such medical treatment, or that such treatment was causally related to the alleged
February 3, 2007 incident. The Office advised him that it was his responsibility to provide a
comprehensive medical report which described his symptoms, test results, diagnosis, treatment
and the doctor’s opinion, with medical reasons, on the cause of his condition, but he failed to do
so. The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.14
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.15 Causal relationship must be substantiated by reasoned medical
opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that his condition was caused by a work-related incident is not determinative.
The Board finds that appellant has failed to establish the fact of injury: he did not submit
sufficient evidence to establish that the alleged incident caused a diagnosed condition.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury while in the performance of duty on February 3, 2007.

14

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

15

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 9, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS INSTALLATIONS COMMAND,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1802
Issued: December 2, 2014

Case Submitted on the Record

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

JURISDICTION
On August 12, 2014 appellant, through counsel, filed a timely appeal from a February 21,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. Because more than one year elapsed from the last merit decision
dated March 30, 2013 to the filing of this appeal, and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file a
Board appeal. See 20 C.F.R. § 501.3(e) (2009).

On appeal counsel argues that the decision is contrary to law and fact.
FACTUAL HISTORY
On February 11, 2013 appellant, then a 53-year-old information technology specialist,
filed a traumatic injury claim alleging that on January 23, 2013 she injured her ankles, hips,
back, limbs, and neck when she tripped over loose cables in her work area and fell.
In a February 28, 2013 letter, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. Appellant was advised as to the medical and factual evidence
required to support her claim and given 30 days to provide this information.
In a March 22, 2013 attending physician’s report (Form CA-20), Dr. Magnus Ikhinmwin,
a treating Board-certified internist with a subspecialty in nephrology, diagnosed acute neck, low
back, right knee and bilateral ankle pain. He described the injury as occurring when appellant
tripped and fell over cables in her work area on January 23, 2013. As a result of her trip and fall,
appellant hurt her hips, limbs, neck and back, and twisted her ankles. Dr. Ikhinmwin checked
“yes” to the question of whether the diagnosed condition was caused or aggravated by the
January 23, 2013 incident. He noted that appellant’s injuries and tenderness correlated with her
description of the injury.
By decision dated March 30, 2013, OWCP denied appellant’s claim on the grounds that
fact of injury had not been established. It found the evidence of record was insufficient to
establish that the incident occurred as alleged. OWCP also found that the medical evidence
appellant submitted was insufficient to establish a firm medical diagnosis.
On February 3, 2014 appellant requested reconsideration.
additional evidence.

She did not submit any

By decision dated February 21, 2014, OWCP denied reconsideration.
appellant’s request did not warrant merit review.

It found that

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

2

will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
On February 11, 2013 appellant filed a claim for traumatic injury, which OWCP denied
by decision dated March 30, 2013. OWCP found that she failed to establish fact of injury as the
factual evidence did not establish that the incident occurred as alleged. It also found that the
medical evidence submitted failed to diagnose a firm medical condition as a result of the alleged
January 23, 2013 incident. On February 3, 2014 appellant disagreed with OWCP’s denial of her
claim and requested reconsideration.
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
requiring OWCP to reopen the case for review of the merits of the claim. In her February 3,
2014 request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not advance a new and relevant legal argument not
previously considered by OWCP. A claimant may be entitled to a merit review by submitting
pertinent new and relevant evidence not previously considered by OWCP, but appellant did not
submit any evidence in support of her request.
The Board finds that as appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608 OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds the attorney’s arguments are not
substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 21, 2014 is affirmed.
Issued: December 2, 2014
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 18-1003
Issued: July 16, 2020

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 April 17, 2018 appellant, through counsel, filed a timely appeal from a February 7,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated February 28, 2017 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 6, 2017 appellant, then a 45-year-old materials handler, filed an occupational
disease claim (Form CA-2), alleging that he developed arthritis due to factors of his federal
employment. He noted that he initially injured his left knee at work in 2014 and, after reinjuring
his knee in 2016, he was informed that he had moderate arthritis in the left knee.3 Appellant
indicated that he first became aware of his condition on October 4, 2014 and first realized its
relationship to factors of his federal employment on January 26, 2016. He did not stop work.
In reports dated October 3, 10, and 15, 2014, Dr. Milan Parekh, a Board-certified family
practitioner, noted that appellant presented with complaints of left knee pain as a result of a workrelated injury that occurred at 10 a.m. on October 3, 2014. Appellant reported that he injured his
knee when he jacked up a pallet that rolled and hit his right knee while the left knee was
hyperextended. Dr. Parekh diagnosed sprain of the left knee and noted that appellant had a history
of left ankle gout and tendinitis, as well as left knee arthroscopic menisectomies performed in the
1990s. He further indicated that an x-ray of the left knee was positive for chronic osteoarthritis,
mild to moderate. Dr. Parekh released appellant to sedentary work only.
In a report dated January 26, 2016, Dr. Marek J. Korzeniowski, a Board-certified
physiatrist, diagnosed sprain and moderate osteoarthritis of the left knee as a result of an injury
sustained when appellant was pulling pallets and his left knee popped. He noted appellant’s history
of left ankle gout and tendinitis, left knee arthroscopic surgery in the 1990s, and a recent left knee
injury sprain/strain on October 3, 2014. Dr. Korzeniowski placed appellant on limited duty with
restrictions for sedentary work only.
On February 8, 2016 Dr. Bernard C. Ong, a Board-certified orthopedic surgeon, provided
the following work restrictions for the period February 8 to March 8, 2016: no stair climbing, no
standing more than two hours, and no continuous walking.
In a report dated November 21, 2016, Dr. Ryhor Harbacheuski, an orthopedic surgeon,
indicated that appellant presented for treatment of pain in his left knee, which he noted had gotten
progressively worse, particularly over the past six months. On physical examination, he noted
mild tenderness to palpitation at the joint line medially on the left, crepitus and discomfort on
passive patellafemoral range of motion on the left, and positive McMurray sign on the left.
Dr. Harbacheuski reviewed a January 26, 2016 x-ray of the knee and reported an impression of
moderate osteoarthritis and diagnosed left knee advanced osteoarthritis. He recommended a left
total knee replacement and opined that, due to the severity of appellant’s arthritic changes, it was
unlikely that he would benefit from conservative treatment.

3
Appellant previously filed a traumatic injury claim on October 9, 2014 for a left knee sprain/strain under OWCP
File No. xxxxxx826. The claim was administratively denied via short form closure. Appellant’s claims have not been
administratively combined and OWCP File No. xxxxxx826 is not presently before the Board on appeal.

2

In a report dated December 14, 2016, Dr. Anna Aguila, a Board-certified family
practitioner, indicated that appellant had a history of severe left knee osteoarthritis and had been
suffering from progressive left knee pain for about three years, which had not improved with
conservative measures. Appellant was recommended to undergo a total knee arthroplasty/
replacement in the future pending losing weight or reducing his body-mass index of below 40.
In a January 18, 2017 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
OWCP subsequently received February 2 and 9, 2016 reports from Dr. Korzeniowski who
noted that appellant was examined and treated for a work-related injury. Dr. Korzeniowski
released appellant to sedentary work with restrictions for limited walking, standing, climbing,
pushing, and pulling; no lifting over 10 pounds; and limited weight bearing of the left knee.
A magnetic resonance imaging (MRI) scan of the left knee dated February 4, 2017 revealed
a complete anterior cruciate ligament (ACL) tear.
Appellant also submitted a witness statement dated February 14, 2017 from B.Y., who
indicated that he worked as a materials handler and in late September 2014 or early October 2014
he was assigned to work with appellant to deliver a pallet of desktop computer terminals from an
employing establishment warehouse to the IT department at the main hospital. B.Y. related that
as appellant picked up the last terminal, he stepped on the pallet to reach the terminal and the pallet
rolled forward causing appellant to twist his knee and fall onto the pallet. When he got up, B.Y.
asked him if he was “ok” and appellant replied that he twisted his knee, but thought he should be
“ok.”
By decision dated February 28, 2017, OWCP denied the occupational disease claim,
finding that the evidence of record was insufficient to establish the factual component of fact of
injury. It noted that appellant had not responded to the January 18, 2017 development
questionnaire requesting a full explanation of the work duties he believed caused or aggravated his
condition in 2014 and 2016. OWCP concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
On January 2, 2018 appellant, through counsel, requested reconsideration and resubmitted
a copy of the February 4, 2017 MRI scan, the February 14, 2017 witness statement from B.Y, and
the December 14, 2016 report from Dr. Aguila who noted appellant’s history of severe left knee
osteoarthritis. He also submitted a January 24, 2017 report from Dr. Harbacheuski, who indicated
that appellant was being treated for severe left knee osteoarthritis, was required to undergo surgery,
and thereafter need more than a year to fully recover.
By decision dated February 7, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.4 The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s January 2, 2018 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board
finds that he did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of his claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of his reconsideration request under 20 C.F.R. § 10.606(b)(3). Appellant submitted a
January 24, 2017 report from Dr. Harbacheuski, who indicated that he was being treated for severe
left knee osteoarthritis and would require surgery and more than a year to fully recover. However,
this evidence does not address the underlying issue in this case, i.e., whether the alleged
employment factors occurred as described. The Board has held that the submission of evidence or
4

5 U.S.C. § 8128(a).

5

Id.

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a); see also R.W., Docket No. 18-1324 (issued January 21, 2020). Timeliness is determined by the
document receipt date (i.e., “the received date” in OWCP’s Integrated Federal Employees’ Compensation System
(iFECS)). If the request for reconsideration has a document received date greater than one year, the request must be
considered untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016).
8

Id. at § 10.608(a).

9

Id. at § 10.608(b); see also R.W., supra note 7.

4

argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10 As such, this evidence is insufficient to warrant reopening appellant’s case for
a merit review.
Appellant also resubmitted copies of evidence previously of record, including a February 4,
2017 MRI scan, a February 14, 2017 witness statement, and a December 14, 2016 report from
Dr. Aguila. The Board has held that evidence that repeats or duplicates evidence already of record,
or is cumulative in nature, has no evidentiary value, and does not constitute a basis for reopening
a case.11 As appellant failed to provide relevant and pertinent new evidence, he is not entitled to
a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements
under20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

Id. at § 10.608(b); see also M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31
ECAB 224, 225 (1979).
11

L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April 5, 2018).

12
C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits).

5

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2020
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, GLEN CANYON DAM,
Page, AZ, Employer
__________________________________________

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

Docket No. 07-1036
Issued: August 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from a December 15, 2006 decision of
the Office of Workers’ Compensation Programs, which found that he received an overpayment
of compensation in the amount of $8,836.81. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $8,836.81; and (2) whether the Office properly determined that he was at fault in
creating the overpayment and was therefore not entitled to waiver.
FACTUAL HISTORY
On May 12, 2004 appellant, then a 43-year-old plant mechanic, injured his low back
while operating a lathe at work. The Office accepted that he sustained employment-related
sciatica, lumbar strain, displaced disc and thoracic lumbar neuritis. Appellant stopped work on

June 18, 2004. By letter dated November 18, 2004, he was placed on the periodic rolls, effective
October 18, 2004. The letter stated: “To avoid an overpayment of compensation: NOTIFY
THIS OFFICE IMMEDIATELY WHEN YOU RETURN TO WORK.” (Emphasis in the
original.)
By letter dated July 28, 2005, the Office issued a preliminary determination that appellant
had received an overpayment in compensation in the amount of $8,836.81 for the period May 31
through August 6, 2005 because he continued to receive disability compensation payments after
his return to work. The Office found him to be at fault in the creation of the overpayment
because he accepted payments by direct deposit that he knew or should have known were
incorrect. A computer-generated overpayment worksheet contained in the record provides that
during this period appellant received compensation totaling $8,836.81. On August 22, 2005
appellant requested a hearing.
At the hearing, held on October 25, 2006, appellant testified that he had informed the
Office that he had returned to work and therefore the overpayment was created by negligence on
the Office’s part. He also acknowledged that he had received three incorrect payments through
direct deposit. On November 12, 2006 appellant submitted an overpayment questionnaire. By
decision dated December 15, 2006, an Office hearing representative finalized the determination
that appellant was at fault in the creation of an overpayment in compensation in the amount of
$8,836.81 because he was aware that he was not entitled to receive compensation payments after
his return to work. Appellant was advised that recovery would be at the rate of $400.00 per
month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 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 duty.2 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”3
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $8,836.81. The record supports that he continued to receive compensation from the date of
his return to work on May 31 to August 6, 2005. For this period appellant received
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

3

5 U.S.C. § 8129(a).

2

compensation in the amount of $8,836.81. As he was not entitled to compensation after his
return to work, the Office properly found that an overpayment in compensation in the amount of
$8,836.81 had been created.4
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”5
Section 10.433(a) of the Office’s regulation provides:
“[The Office] may consider waiving an overpayment only if the individual to
whom it was made was not at fault in accepting or creating the overpayment.
Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [the Office] are proper.
The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) Made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; or (2) Failed to
provide information which he or she knew or should have known to be material;
or (3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”6
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.7

4

5 U.S.C. §§ 8101, 8110.

5

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

6

20 C.F.R. § 10.433 (2006); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

7

Tammy Craven, 57 ECAB ____ (Docket No. 05-249, issued July 24, 2006).

3

ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $8,836.81 overpayment, the Office
stated that he knew or should have known that the payments he received by direct deposit for the
period May 31 through August 6, 2005 were not proper because he had returned to work.
Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.8 The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.9 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.10
In this case, appellant continued to receive augmented compensation by direct deposit
from the time he returned to work on May 31 to August 6, 2005. Since Office regulations define
fault by what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that in many cases the claimant will not be at fault
for accepting the first incorrect payment because the requisite knowledge is lacking at the time of
deposit, and the Board so finds in this case as there is no evidence of record to show the period
covered by the direct deposit.11 A finding of no fault does not mean, however, that the claimant
may keep the money, only that the Office must consider eligibility for waiver for this period, and
the case must be remanded for the Office to determine whether he is entitled to waiver for this
period.12
By his own admission at the hearing, appellant acknowledged that he was not entitled to
receive compensation after his return to work. Thus, after his receipt of the first direct deposit
for which fault may not be imputed to him under the reasonableness standard delineated above,
for the subsequent direct deposits appellant knew or should have know that the compensation
paid by direct deposits issued by the Office after the first direct deposit subsequent to his return
to work on May 31, 2005 were in error and the Board finds that he was at fault under the third
standard outlined above for any period after the first direct deposit after his return to work.
Recovery of the overpayment in compensation may not be waived for this time period, and the
decision dated December 15, 2006 is affirmed in this respect. The record in this case, however,
8

William E. McCarty, 54 ECAB 525 (2003).

9

See Karen K. Dixon, 56 ECAB ____ (Docket No. 03-2265, issued November 9, 2004).

10

See K.H., Docket No. 06-191 (issued October 30, 2006).

11

See Karen K. Dixon, supra note 9.

12

Appellant acknowledged that he was aware that he received direct deposits to which he was not entitled on
July 8 and August 5, 2005.

4

does not show when appellant’s individual direct deposits were made. As appellant was not at
fault for the first direct deposit after his May 31, 2005 return to work, the case must be remanded
to the Office to determine the exact period appellant would not be at fault and would thus be
entitled to waiver.
Lastly, with respect to recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.13 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act.14
CONCLUSION
The Board finds that the Office properly determined that an overpayment in
compensation in the amount of $8,836.81 had been created and that appellant was at fault for the
overpayment period commencing subsequent to the first direct deposit after his return to work
but was not at fault for the first direct deposit of compensation. The case is remanded for a
determination of whether he would be entitled to waiver for this brief period.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2006 be affirmed in part, set aside in part, and the
case remanded for further proceedings consistent with this opinion of the Board.
Issued: August 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Cheryl Thomas, 55 ECAB 610 (2004).

14

Id.

5