United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2261
Issued: November 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from a December 28, 2006 merit
decision of the Office of Workers’ Compensation Programs and a June 12, 2007 hearing
representative’s decision denying his emotional condition claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that he sustained an emotional
condition in the performance of duty; and (2) whether the Office properly denied his request for
subpoenas.
FACTUAL HISTORY
This case has previously been before the Board. In a June 29, 2004 order, the Board
instructed the Office to obtain relevant evidence regarding appellant’s allegations from the

employing establishment.1 The Office requested the evidence but the employing establishment
did not provide the information, citing difficulties obtaining records. On September 25, 2006 the
Board set aside a November 16, 2005 decision denying appellant’s emotional condition claim.
The Board considered his allegations that a shot was fired into his house at his children on
March 8, 1978 as a result of an investigation he was conducting in the course of his federal
employment; that his performance appraisal was unfairly downgraded, and that he was
continuously interrogated by the employing establishment from March 8 to June 28, 1978 in
connection with an investigation. The Board found that appellant had not established as factual
that shots were fired into his house as a result of an investigation he conducted as part of his
employment. The Board further found that he had not established that his performance appraisal
was erroneously downgraded. The Board determined, however, that the Office should obtain a
response from the employing establishment to appellant’s allegations that he was interrogated
from March 8 to June 28, 1978 by agents with the employing establishment and the DOJ. The
Board remanded the case for the Office to obtain reports from the Office of Professional
Responsibility (OPR) of the employing establishment and the DOJ regarding a 1978
investigation and copies of all other relevant evidence in its possession. The findings of fact and
conclusions of law from the prior decision and order are hereby incorporated by reference.
On remand, the Office requested that the employing establishment and the DOJ provide
all records relevant to a 1978 OPR investigation. On December 4, 2006 the employing
establishment submitted some of the records relevant to the OPR’s 1978 investigation. In an
accompanying November 30, 2006 letter, it maintained that it was enclosing “all known records
regarding the [OPR] investigation concerning [appellant].” The employing establishment noted
that the records were “voluminous” as it was investigating multiple incidents including possible
misuse of a vehicle, the use of profanity and lost and missing property. It noted that Mr. Shapiro,
an OPR attorney, found no evidence of criminal conduct on the part of any employee. The
employing establishment also indicated that OPR considered appellant’s allegation regarding his
performance appraisal and found no wrongdoing. It maintained that appellant may have leaked
information to the news media. The employing establishment concluded that no independent
body found any evidence of error or abuse in any administrative action taken.
The evidence submitted by the employing establishment indicates that, on April 12, 1978,
appellant was transferred to Chicago, IL as he had lost effectiveness in his current location. He
requested a hardship exemption. On May 1, 1978 the employing establishment suspended
appellant for five days for an insubordinate attitude toward his supervisor, failing to obtain
proper authorization for leave and failing to properly control employing establishment property.

1

Order Remanding Case, Docket No. 04-961 (issued June 29, 2004). On March 26, 2001 appellant, then a 57year-old former special agent, filed an occupational disease claim alleging that he sustained major depression and
post-traumatic stress disorder due to employment factors. He was removed from employment on June 28, 1978
when he refused a transfer. Appellant attributed his emotional condition, in part, to a 1978 investigation conducted
by the employing establishment and the Department of Justice (DOJ).

2

On May 4, 1978 Joseph F. Gross, Jr., an assistant counsel with the OPR, discussed the
administrative action taken against appellant. He stated:
“I advised you [the employing establishment’s OPR] that, after examining both
[appellant’s] statement and the pertinent [employing establishment] files, further
delay in taking administrative action was not warranted. At the same time, I
expressed concern that several bases for the action seemed trivial, if not
unreasonable, and could only fuel one’s belief that the [employing establishment]
was retaliating against [appellant]. As examples, I pointed out the charges that
[he] did not obtain proper authorization for annual leave when his house was shot
at with his children alone inside; that he lost a brief case; and, that he did not
properly check-out a walkie talkie.”
In a June 19, 1978 report, Assistant Director Lee Colwell interviewed appellant and his
attorney regarding charges of mistreatment by employing establishment officials.2 Appellant
contended that the charges brought against him were “trivial.” Mr. Colwell noted that Special
Agent in Charge Harlan C. Phillips provided examples of appellant’s inappropriate behavior.
Mr. Phillips maintained that appellant received an unsatisfactory performance rating from
April 1, 1977 through May 1, 1978 because he failed to timely report the March 8, 1978 alleged
shooting at his house, hung up the telephone on Mr. Phillips, used profanity in reference to the
employing establishment, failed to obtain proper authorization for annual leave, failed to
properly check out a walkie talkie and did not properly maintain an automobile log. Mr. Colwell
also noted that Mr. Shapiro of the OPR for the DOJ investigated allegations that Mr. Naum
testified on behalf of a police officer accused of corruption. Mr. Shapiro “advised that no
violation of [f]ederal law existed and referred the matter to the [employing establishment] for
administrative action, if any. The [employing establishment] took no administrative action
against [Mr.] Naum.” The employing establishment transferred appellant to Chicago, IL.
Appellant protested the transfer due to his family situation. Mr. Colwell related that
Mr. Harmon, appellant’s supervisor, found that it was reasonable for appellant to call for annual
leave on March 9, 1978 without obtaining permission of a supervisor given the circumstances.
Mr. Harmon rated him as excellent for the period April 1, 1977 through March 31, 1978 but
subsequently downgraded the evaluation to unsatisfactory. Mr. Colwell noted that on
December 13, 1978 Mr. Naum questioned whether appellant was trying to get him in trouble by
interviewing an informant. He stated:
“According to [appellant] [Mr.] Naum said something to the effect that anybody
who would do that would be met in the alley with a baseball bat and hit in the
kneecaps. During the [OPR] investigation, [Mr.] Naum signed a statement under
oath denying this threat. However, when [Mr.] Phillips questioned [Mr.] Naum
following the submission of [appellant’s] memorandum dated February 21, 1978,
[Mr.] Naum admitted making such a comment but said he meant it only as a
cliché.”

2

Mr. Colwell noted that Gary Shapiro with the OPR of the DOJ was investigating appellant’s allegations that the
employing establishment failed to investigate the behavior of Special Agent Dean G. Naum.

3

Mr. Colwell recommended that appellant be transferred to Chicago immediately and that
the employing establishment take no action on various unresolved issues, including the source of
the press leak, whether appellant attended a basketball game during work hours and any potential
leave abuses.
On June 22, 1978 the employing establishment denied appellant’s request that he not be
transferred due to family hardship. It found he had “lost his effectiveness” in his current work
location. On July 31, 1978 the employing establishment terminated appellant’s employment due
to insubordination when he failed to report for duty in Chicago.
In a report dated October 3, 1978, Mr. Shapiro reviewed the employing establishment’s
investigation into appellant’s allegations. He did not review the administrative proceedings
brought against him by the employing establishment. Mr. Shapiro found that the OPR conducted
a sufficient investigation and that there was no evidence of “criminal conduct on the part of an
employee of the [employing establishment].”
By decision dated December 28, 2006, the Office denied appellant’s emotional condition
claim on the grounds that he did not establish an injury in the performance of duty. It found he
had not established any compensable employment factors.
On January 24, 2007 appellant requested a review of the written record. He noted that
the DOJ had not submitted an OPR report. Appellant also requested a subpoena for the
employing establishment to produce his personnel files and the personnel file of Rex A. Rissen, a
deceased coworker.
By letter dated March 31, 2007, appellant alleged that the employing establishment
withheld information from its OPR report, including the report of the state police laboratory
which determined that a bullet had been fired at his house. He contended that he had established
that Mr. Naum threatened to break his kneecaps. Appellant discussed again the March 8, 1978
incident when his daughter called and reported a shooting at their home. He asserted that
Mr. Phillips stopped the employing establishment’s investigation of the March 8, 1978 incident.
Mr. Phillips also failed to provide appellant’s fitness-for-duty psychiatrist with appropriate
information. Appellant noted that the shots were fired at his house and in five hours he secured
the arrest of Edward Mode, who was previously investigated by Mr. Naum. He maintained that
this established a link between the shooting of the windows of his home and employment factors.
On April 17, 2007 the hearing representative denied appellant’s request for a subpoena.
She noted that documents pertinent to his claim should be in his personnel documents and that he
could request the personnel file of his deceased coworker from the employing establishment.
On May 11, 2007 the employing establishment asserted that the administrative actions
described by appellant “have never been shown by a review board to be in error, abuse or
retaliation.” It further related that he had not provided any evidence regarding the alleged shot
fired into his house to the employing establishment. In a May 26, 2007 response, appellant
protested the denial of the subpoena. He related that he interviewed George Tomlinson who
provided information about Mr. Naum. Following the interview, Mr. Naum told appellant that
he was trying to get him in trouble and that anyone that did that ‘would be met in the alley with a

4

baseball bat and hit in the kneecaps.” On March 8, 1978 appellant caused the arrest of Mafia
gambling figure, Edward Mode, who had been ‘cleared’ of illegal activity by Agent Naum. Five
hours after the arrest of Mr. Mode, someone attempted to murder the then 9- and 11-year old
children of appellant by firing a gun shot at them through the front window of appellant’s
residence. The employing establishment investigated the shooting until Mr. Phillips ordered the
investigation to cease.
Mr. Phillips instructed appellant to undergo a fitness-for-duty
examination but failed to provide the psychiatrist with information about Mr. Naum’s threat and
also failed to provide this information to the police department. Appellant noted that
Mr. Phillips accused him of leaking information to the press but denied his requests to take a
polygraph examination.
By decision dated June 12, 2007, the hearing representative affirmed the December 28,
2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
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 the Act.5 However, the Board
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.6
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.7
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
3

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
6

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

7

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

5

employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.9 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.10 The primary reason for
requiring factual evidence from the claimant is support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.13
Office regulations provide that an employer who has reason to disagree with an aspect of
the claimant’s report shall submit a statement to the Office that specifically describes the factual
allegation or argument with which it disagrees and provide evidence or argument to support that
position.14 The applicable regulation further provides that the employer may include supporting
documents such as witness statements, medical reports or records, or any other relevant

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

10

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

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

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

13

Id.

14

20 C.F.R. § 10.117(a).

6

information.15 If the employer does not adequately respond to requests for comments on a
claimant’s allegations, the Office may accept the claimant’s allegations as factual.16
ANALYSIS -- ISSUE 1
The Board previously found that appellant had not submitted sufficient factual evidence
to show a relationship between a projectile breaking his front window on March 8, 1978 and
factors of his federal employment. Appellant contended that the employing establishment failed
to submit the results of the police department’s tests showing that a bullet had hit his window.
He noted the proximity in time between Mr. Mole’s arrest and the alleged shooting at his home
on March 8, 1978 and the relationship between Mr. Mole and Mr. Naum. Appellant asserted that
this established the requisite causal relationship between his employment and the March 8, 1978
incident. The employing establishment generally disagreed that appellant had submitted
sufficient evidence to show a relationship between the projectile breaking his front window. It,
however, did not specifically address his contention that it failed to submit some of the evidence
within its possession and did not provide a detailed analysis of the evidence or argument that it
relied on in support of its opinion. Consequently, appellant’s allegation is accepted as factual.17
The Board also found that additional information was required to determine if the
employing establishment committed error or abuse in its investigation of appellant from March 8
to June 28, 1978. Investigations are considered to be an administrative function of the employer
when they are not related to an employee’s day-to-day duties or specially assigned duties or to a
requirement of the employee’s employment.18 The employing establishment retains the right to
investigate an employee if wrongdoing is suspected or as part of the evaluation process.19
Appellant contended that the DOJ did not submit its OPR report. The employing establishment
did not specifically state that it had submitted all records associated with the OPR report but
instead indicated that it had submitted “all known records.” As it is unclear whether the
employing establishment provided all records within its possession, appellant’s contention that it
erred in its investigation into charges of wrongdoing is accepted as a compensable employment
factor.
Appellant contends that the employing establishment erred in issuing disciplinary action,
failing to provide the fitness-for-duty physician with complete information and evaluating his
performance in 1978. Disciplinary actions, performance appraisals and referrals for fitness-forduty examinations are administrative functions of the employer and not duties of the employee
and, unless the evidence discloses error or abuse on the part of the employing establishment, are

15

Id.

16

20 C.F.R. § 10.117(b); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Occupational Illness,
Chapter 2.806.4(d)(1) (October 1995).
17

Id.

18

Jeral R. Gray, 57 ECAB 611 (2006); Thomas O. Potts, 53 ECAB 353 (2002).

19

Sandra F. Powell, 45 ECAB 877 (1994).

7

not compensable.20 In a May 4, 1978 letter, Mr. Gross noted that the basis for several of the
administrative actions taken against appellant appeared “trivial,” including his failure to take
annual leave when an individual shot at his house, losing a briefcase and not properly checking
out a walkie talkie. In a November 30, 2006 letter, the employing establishment noted that there
was no evidence of wrongdoing in an administrative action because there was no finding of error
or abuse by an administrative body. It is not necessary, however, to have a finding by an
independent body to show error or abuse under the Act. The employing establishment did not
specifically support or explain why the administrative actions against him were justified in view
of Mr. Gross’s May 4, 1978 letter finding that the actions taken were for insignificant matters.
Thus, the Board may accept appellant’s allegations of error or abuse by the employing
establishment in issuing disciplinary action, failing to provide the fitness-for-duty physician with
complete information and evaluating his performance in 1978 as compensable employment
factors.
Appellant alleged that in December 1978 Mr. Naum threatened to break his kneecaps if
he got him in trouble by interviewing an individual. The Board has recognized the
compensability of physical threats and verbal abuse in certain circumstances.21 Mr. Colwell, as
part of his June 19, 1978 investigative report, related that during the investigation Mr. Naum
swore under oath that he did not threaten to break appellant’s kneecaps. Subsequently, however,
he “admitted making such a comment but said he meant it only as a cliché.” Appellant has
established as factual that Mr. Naum threatened to break his kneecaps. The Board finds that
Mr. Naum’s statement, which was made to appellant during the course of a criminal
investigation, is sufficiently credible to constitute a compensable employment factor.
Regarding appellant’s transfer to Chicago, the Board has held that an employee’s
dissatisfaction with being transferred constitutes frustration from not being permitted to work in
a particular environment or to hold a particular position and, absent evidence of error or abuse, is
not compensable.22 The employing establishment considered appellant’s request to stay in his
current work location due to family circumstances but denied the request as he was no longer
effective in his current location. As appellant has not submitted sufficient evidence to show that
the employing establishment erred in transferring him to Chicago, he has not established a
compensable work factor.
As appellant has established several compensable employment factors, the case presents a
medical question regarding whether his emotional condition resulted from the compensable
employment factor.23 As the Office found there were no compensable employment factors, it did
not analyze or develop the medical evidence. The case will be remanded to the Office for this

20

Jeral R. Gray, supra note 18; Beverly A. Spencer, 55 ECAB 501 (2004); Lillian M. Hood, 48 ECAB
157 (1996).
21

David S. Lee, 56 ECAB 602 (2005); Dennis J. Balogh, supra note 12.

22

Robert Breeden, 57 ECAB 622 (2006).

23

Appellant submitted medical evidence from Dr. Joshua Lowinsky, a Board-certified psychiatrist, in support of
his claim.

8

purpose.24 After such further development as deemed necessary, the Office should issue a de novo
decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.25 The implementing regulation provides that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.26 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.27 Section
10.619(a)(1) of the implementing regulations provides that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.28
The Office hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.29
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.30
ANALYSIS -- ISSUE 2
On January 24, 2007 appellant requested that the Office hearing representative issue a
subpoena to the employing establishment for his personnel records and the personnel file of
Mr. Rissen, a deceased coworker. The hearing representative denied his request on April 17,

24

See Robert Bartlett, 51 ECAB 664 (2000).

25

5 U.S.C. § 8126(1).

26

20 C.F.R. § 10.619; Gregorio E. Conde, supra note 4.

27

Id.

28

20 C.F.R. § 10.619(a)(1).

29

See Gregorio E. Conde, supra note 4.

30

Claudio Vazquez, 52 ECAB 496 (2001).

9

2007 after finding that he could request the pertinent documents from the employing
establishment.
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to show that the evidence could be
construed so as to produce a contrary factual conclusion.31 As appellant has not shown that the
personnel records in question cannot be obtained by other means, the Board finds no abuse of
discretion in the hearing representative’s denial of his request for subpoenas.32
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an emotional condition in the performance of duty. As the evidence establishes
compensable factors of employment, the Office must analyze and develop the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2007 is affirmed in part regarding the denial of
subpoenas and set aside in part and the decision dated December 28, 2006 is set aside. The case
is remanded for further proceedings consistent with this opinion of the Board.
Issued: November 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
31

Joseph P. Hofmann, 57 ECAB 456 (2006).

32

See Tina D. Francis, 56 ECAB 180 (2004).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY INSPECTION SERVICE,
Denison, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1481
Issued: February 19, 2010

Case Submitted on the Record

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

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 10, 2008 merit decision denying her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained an
injury in the performance of duty.

FACTUAL HISTORY
On January 22, 2008 appellant, then a 52-year-old food inspector, filed an occupational
disease claim alleging that she sustained an intrarticular fracture of the digital radius in the left
wrist as a result of pulling beef and turning carcasses. She stated that she had increased pain
after performing this task.
Appellant submitted a report dated January 21, 2008 from Dr. Todd A. Woollen, a Boardcertified family practitioner, who stated that appellant had been experiencing left forearm and
wrist pain for two weeks. Although appellant recalled no specific injury, she had been
performing repetitive activities at work. Her medical history included bilateral carpal tunnel
release surgery. X-rays revealed the appearance of a subtle defect in the distal radius.
Dr. Woollen prescribed a wrist splint for a left wrist fracture of the distal radius.
By letter dated February 22, 2008, the Office informed appellant that the information
submitted was insufficient to establish her claim, noting that there was no medical evidence,
establishing that her diagnosed wrist condition was causally related to factors of her federal
employment. It informed appellant that she had 30 days to submit additional evidence to support
her claim, including a description of employment activities alleged to have caused her condition
and a report explaining how her employment activities caused the diagnosed physician’s
condition.
The record contains a February 20, 2008 note from Dr. Daniel Larose, a Board-certified
orthopedic surgeon, indicating that appellant was “six weeks post-fracture of the left wrist” and
was doing well. Dr. Larose also provided a work excuse reflecting that appellant was unable to
work until February 24, 2008.
In a letter dated March 11, 2008, Dr. Timothy E. Grady, an employing establishment
veterinarian, reported that appellant had complained to him on January 10, 2008 of discomfort
she was experiencing while “turning beef’ at the final carcass inspection station. He stated that
her left arm was visibly “puffy” relative to the opposite arm, from about the distal one third of
the forearm, across the wrist to include the hand, and that he had advised her to seek medical
treatment. Dr. Grady stated that repetitive motion activity was a major part of inspection tasks
by Food Safety Inspection Service on-line inspectors, who spent approximately two hours per
day at each station. Repetitive activities at head inspection involved incising the muscles of
mastication and lymph nodes and palpating the tongue, at the rate of 76 per hour. The viscera
table involved inspection of the liver, heart and lungs, at the rate of 152 per hour. The final rail
inspection involved rotating the half carcasses of beef, each weighing approximately 400 pounds,
to observe for contamination and/or pathology. This process required pushing and pulling to
achieve observation of each surface and was performed at the rate of approximately 608 per
hour.
In a January 22, 2008 report, Dr. Woollen diagnosed an intra-articular distal radius
fracture, with minimal displacement confirmed by x-ray. He placed appellant in a short arm cast.
Appellant submitted a February 5, 2008 report from Dr. Roy Abraham, an orthopedist,
who stated that appellant had sustained a nondisplaced crack of the left wrist on
January 10, 2008. Noting that x-rays revealed good positioning of the fracture, he replaced

2

appellant’s cast with a splint. The record contains x-rays of the left wrist dated January 21,
February 5 and 20, 2008.
In an undated response to the Office’s February 22, 2008 development letter, appellant
stated that she injured her left wrist on January 10, 2008 while she was railing out carcasses.
When she was turning a carcass with a hook, it “turned back on [her] causing [her] wrist to twist
and pull.” Appellant indicated that since her carpal tunnel release surgery, which occurred in
1998, she had experienced no pain in her left wrist until January 10, 2008.
By decision dated April 25, 2008, the Office denied appellant’s claim, finding that the
claimed events had occurred, but that the medical evidence of record failed to demonstrate that
the claimed medical condition was causally related to the established work-related events.
On May 5, 2008 appellant requested reconsideration of the Office’s April 25, 2008
decision. She submitted copies of documents previously received and considered by the Office,
including a report and a prescription from Dr. Woollen, both dated February 5, 2008, and a
February 5, 2008 x-ray report.
By decision dated December 10, 2008, the Office denied modification of its previous
decision, finding that the medical evidence of record failed to establish a causal relationship
between appellant’s diagnosed wrist condition and established work-related events. On appeal,
appellant contended that she was not given adequate assistance in presenting her claim, and that
her physicians should have submitted the necessary documentation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

3

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
When an employee claims that he sustained a traumatic injury in the performance of
duty, he must establish the “fact of injury,” consisting of two components which must be
considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury, and generally
this can be established only by medical evidence.5
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.7
It is improper to deny a case on the basis that the claimant submitted an incorrect form,
such as a notice of traumatic injury8 rather than a notice of occupational disease, as such a
submission is a technical error. The claims examiner must obtain the appropriate notice of injury
or disease if it does not already appear in file.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
4

Id.

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
6

Id.

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
9

Federal FECA Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.4(b) (January 2003).

4

An employee who claims benefits under the Act has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.10 However, it is well established that proceedings under the Act are not
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.11
The Office accepted that appellant was engaged in repetitive employment activities as a
food inspector, and that she twisted and pulled her left wrist on January 10, 2003 while turning a
carcass with a hook. It denied her claim, however, on the grounds that the evidence failed to
establish a causal relationship between those activities and her diagnosed wrist fracture. The
Board finds that the medical evidence of record supports a causal relationship between
appellant’s work activities and her wrist condition.
Dr. Abraham stated that appellant sustained a nondisplaced crack of the left wrist on
January 10, 2008. Noting that x-rays revealed good positioning of the fracture, he replaced
appellant’s cast with a splint. Dr. Abraham’s report provides a definitive diagnosis and is
factually consistent with Dr. Grady’s March 11, 2008 letter, which detailed appellant’s
complaints that she injured her left wrist on January 10, 2008 while “turning beef” at the final
carcass inspection station and with Dr. Larose’s February 20, 2008 report reflecting that
appellant was “six weeks post-fracture of the left wrist.”
On January 21, 2008 Dr. Woollen stated that appellant had been experiencing left
forearm and wrist pain for two weeks, noting that she had been performing repetitive activities at
work. He prescribed a wrist splint for a left wrist fracture of the distal radius. On January 22,
2008 Dr. Woollen diagnosed an intra-articular distal radius fracture, with minimal displacement
and placed appellant in a short arm cast. Although his reports do not explain how appellant’s
work activities caused her diagnosed condition, they strongly suggest and support a relationship
between her work activities and the left wrist fracture. The reports are also consistent with the
factual histories provided by Dr. Grady and Dr. Larose.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she sustained an employmentrelated wrist condition and are not contradicted by any substantial medical or factual evidence of
record. While the reports are not sufficient to meet her burden of proof to establish her claim,
they raise an uncontroverted inference between appellant’s wrist condition and the identified

10

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 9; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

employment factors and are sufficient to require the Office to further develop the medical
evidence and the case record.12
The Board also notes that, although appellant filed a claim for an occupational disease,
she has provided evidence supporting that she sustained a traumatic injury on January 10, 2008.
As noted, the filing of a claim on the incorrect form is not cause for denial of the claim.
On remand the Office should submit a statement of accepted facts to appellant’s treating
physician, or to a second opinion examiner, in order to obtain a rationalized opinion as to
whether her current condition is causally related to factors of her employment, either directly or
through aggravation, precipitation or acceleration.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2008 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further development
consistent with this decision.
Issued: February 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Virginia Richard, supra note 10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0560
Issued: June 10, 2021

Case Submitted on the Record

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

JURISDICTION
On January 14, 2020 appellant filed a timely appeal from November 6 and 26, 2019 merit
decisions 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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $27,915.61 for the period August 1, 2004 through September 14, 2019 for which he
was without fault, because he concurrently received FECA wage-loss compensation benefits and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the November 26, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Social Security Administration (SSA) age-related retirement benefits, without an appropriate
offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; (3) whether it
properly required recovery of the overpayment by deducting $600.00 from appellant’s continuing
compensation payments every 28 days; (4) whether appellant received an overpayment of
compensation in the amount of $12,782.49 for the period August 1, 2017 through August 17, 2019
because life insurance premiums were improperly deducted; (5) whether OWCP properly denied
waiver of recovery of the overpayment; and (6) whether it properly required recovery of the
overpayment by deducting $200.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On April 2, 1988 appellant, then-a 45-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on April 1, 1988 he reached for an all-purpose container (APC) that
was about to fall off the dock and injured his low back while in the performance of duty. He
stopped work on April 1, 1988. OWCP accepted the claim for low back strain, lumbar spine
stenosis and displacement of lumbar intervertebral disc without myelopathy. The record reflects
that OWCP paid appellant FECA wage-loss compensation benefits on the periodic rolls.
In a letter dated June 14, 1988, entitled “NOTICE TO INDIVIDUALS WITH FUNDS IN
THE CIVIL SERVICE RETIREMENT SYSTEM [CSRS]” OWCP advised appellant that FECA
was not a retirement system. Appellant was advised that he may elect Civil Service Retirement
benefits at some time in the future, should it become necessary to reduce or terminate his
compensation. He was also cautioned that if he received his contributions from the Retirement
Fund, he would lose all entitlement to Civil Service annuity.
In a claim for compensation (Form CA-7) dated May 18, 1988, appellant’s supervisor
noted that appellant had been employed in federal civilian service employment for a period of two
years and seven months. A rehabilitation counselor’s report dated November 9, 1988 indicated
that appellant began work at the employing establishment in 1984.
An OWCP worksheet dated June 14, 1994 calculated premiums based upon a basic life
(option B) and postretirement basic life insurance (Option C).
In a January 24, 2018 letter to appellant, OWCP advised that all FEGLI optional life
insurance (OLI ) premium deductions should automatically stop when a claimant reaches age 65,
unless an election is made to continue OLI coverage beyond this age. The letter informed him
that, due to computer error, OWCP had deducted OLI premiums past his 65th birthday without
having an OLI post-65 election in his case file. OWCP further explained that consequently,
appellant’s OLI premium deductions had stopped after his last birthday and that OWCP did not
have authorization to reinstate these deductions without having documentation from OPM
instructing it to do so.
In a letter dated March 22, 2018, OPM advised OWCP that it should deduct life insurance
premiums for appellant under code Z1 for basic life insurance at 50 percent reduction, Option B5x-no reduction, and Option C-1X-no reduction. It further advised that commencing date for the
postretirement deductions was December 20, 1992.
2

OWCP requested that appellant inform OPM of his post-65 OLI election. Appellant
selected the option to continue his OLI at no reduction and signed the form on January 27, 2018.
On August 23, 2019 OWCP forwarded a FERS/SSA dual benefit calculation form to SSA.
On September 16, 2019 SSA completed the FERS/SSA dual benefits calculation form. The
form indicated that with FERS appellant was entitled to a monthly payment rate of: $765.00,
effective August 2004, and without FERS he was entitled to a monthly payment rate of $639.00;
effective December 2004 with FERS he was entitled to a monthly payment rate of $786.00, and
without FERS he was entitled to a monthly payment rate of $656.20; effective December 2005
with FERS he was entitled to a monthly payment rate of $818.00, and without FERS he was
entitled to a monthly payment rate of $683.10; effective December 2006 with FERS he was
entitled to a monthly payment rate of $845.00, and without FERS he was entitled to a monthly
payment rate of $705.60; effective December 2007 with FERS he was entitled to a monthly
payment rate of $864.40, and without FERS he was entitled to a monthly payment rate of $721.70;
effective December 2008 with FERS he was entitled to a monthly payment of $914.40, and without
FERS he was entitled to a monthly payment rate of $763.60; effective December 2009 with FERS
he was entitled to a monthly payment rate of $914.50, and without FERS he was entitled to a
monthly payment rate of $763.60; effective December 2010 with FERS he was entitled to a
monthly payment rate of $914.50, and without FERS he was entitled to a monthly payment rate of
$763.60; effective December 2011 with FERS he was entitled to a monthly payment rate of
$947.90, and without FERS he was entitled to a monthly payment rate of $791.00; effective
December 2012 with FERS he was entitled to a monthly payment rate of $963.90, and without
FERS he was entitled to a monthly payment rate of $804.50; effective December 2013 with FERS
he was entitled to a monthly payment rate of $977.90, and without FERS he was entitled to a
monthly payment rate of $816.50; effective December 2014 with FERS he was entitled to a
monthly payment rate of $994.90, and without FERS he was entitled to a monthly payment rate
of $830.40; effective December 2015 with FERS he was entitled to a monthly payment rate of
$994.90, and without FERS he was entitled to a monthly payment rate of $830.40; effective
December 2016 with FERS he was entitled to a monthly payment rate of $998.00, and without
FERS he was entitled to a monthly payment rate of $832.80; effective December 2017 with FERS
he was entitled to a monthly payment rate of $1,018.00, and without FERS he was entitled to a
monthly payment rate of $849.50; and effective December 2018 with FERS he was entitled to a
monthly payment rate of $1,046.50, and without FERS he was entitled to a monthly payment rate
of $873.20.
A FERS offset calculation worksheet compiled by OWCP on September 17, 2019
calculated an overpayment in the amount of $27,915.61, for the period August 1, 2004 to
September 14, 2019.
In a letter dated September 17, 2019, OWCP advised appellant that it had recently found
that he had been receiving SSA age-related retirement benefits since August 1, 2004. It explained
that it was adjusting his wage-loss compensation, effective October 12, 2019, to offset the portion
of his SSA age-related retirement benefits attributable to his federal service as an employee under
the FERS retirement system. OWCP informed him that the portion of the SSA benefits attributed
to his federal service required an offset of the FECA benefits. It explained that his current SSA

3

monthly income was $1,046.50 and without FERS, it was $873.20. OWCP explained that his
federal service increased his monthly SSA payment by $173.30, which must be offset against his
compensation benefits. It advised appellant that his new net compensation payment would be
$2,632.85 every 28 days.
In a preliminary overpayment determination dated September 17, 2019, OWCP advised
appellant that he had received an overpayment of compensation in the amount of $27,915.61, for
the period August 1, 2004 through September 14, 2019, because compensation was not reduced
by the FERS/FECA amount. It found that he was without fault in the creation of the overpayment.
OWCP informed appellant that, if he believed the overpayment should be waived, he should
complete an overpayment recovery questionnaire (Form OWCP-20) and submit detailed
supporting financial documentation. It explained its calculation of the overpayment, informed
appellant of the actions he could take, and allotted 30 days for him to respond.
OWCP compensation payment history records indicate that from August 1, 2017 until
August 17, 2019, no postretirement basic life insurance (PRBLI) premiums were deducted. A
September 17, 2019 OWCP manual adjustment form revealed that for the period from August 1,
2017 to August 17, 2019, without the deductions, appellant received $85,545.06; however, with
the deductions, he should have received $72,762.58. OWCP noted that an overpayment of
compensation in the amount of $12,782.48 had occurred.
In a preliminary overpayment determination dated September 18, 2019, OWCP advised
appellant that he had received an overpayment of compensation in the amount of $12,782.49 from
August 1, 2017 through August 17, 2019, because incorrect deductions for PRBLI premiums were
made from his continuing compensation benefits. It provided an overpayment memorandum
which calculated the overpayment amounts from August 1, 2017 through August 17, 2019.
OWCP further determined that appellant was not at fault in the creation of the overpayment. It
informed appellant that, if he believed the overpayment should be waived, he should complete a
Form OWCP-20 and submit detailed supporting financial documentation. It explained its
calculation of the overpayment, informed appellant of the actions he could take, and allotted 30
days for him to respond.
On October 3, 2019 OWCP received appellant’s completed Form OWCP-20, signed on
September 26, 2019, regarding the September 17, 2019 preliminary overpayment determination in
the amount of $27,915.61. Appellant requested a prerecoupment hearing regarding waiver of
recovery of the overpayment, and also marked the box for a telephone hearing. He requested
waiver because he was without fault in the creation of the overpayment.
On October 3, 2019 OWCP also received appellant’s completed Form OWCP-20, signed
on September 26, 2019, regarding the September 18, 2019 preliminary overpayment determination
in the amount of $12,782.49. Appellant requested waiver because he was without fault in the
creation of the overpayment. He listed income of $9,853.00 per month, expenses of $4,188.00 per
month, and assets of $4,396.52. In another typed summary of debts dated September 25, 2019
appellant listed monthly debts for himself and his wife totaling $8,964.19 monthly.

4

By decision dated November 6, 2019, OWCP finalized the September 18, 2019
preliminary overpayment determination for the period August 1, 2017 through August 17, 2019 in
the amount of $12,782.49. It found that appellant was without fault, but denied waiver of recovery
of the overpayment because the evidence did not substantiate that adjustment or recovery would
defeat the purpose of FECA or be against equity and good conscience. OWCP required recovery
of the overpayment by withholding $200.00 from appellant’s continuing compensation payments
every 28 days.
In a letter dated November 12, 2019, OWCP requested that appellant provide additional
information related to his assets and expenses.
On November 21, 2019 OWCP received additional documentation related to appellant’s
assets. Appellant listed additional liquid assets of $6,504.68. On November 26, 2019 OWCP
received additional information from appellant regarding his income and expenses. Appellant
listed his income as $10,253.00 and his expenses as $7,772.03.
By decision dated November 26, 2019, OWCP finalized the September 17, 2019
preliminary overpayment determination in the amount of $27,915.61 for the period August 1, 2004
through September 14, 2019 for which he was without fault, as he had received FECA wage-loss
compensation, which was not reduced by the FERS/SSA offset. It found that recovery of the
overpayment would not create a severe financial hardship as appellant had a monthly income that
exceeded his expenses by more than the allotted amount of $50.00, and that the overpayment
would be recovered by deduction of $600.00 every 28 days from appellant’s continuing
compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5
20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); S.M., Docket No. 17-1802 (issued August 20, 2018).

5

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not established that appellant received an overpayment of
compensation.
OWCP determined that appellant received an overpayment of compensation from
August 1, 2004 until September 14, 2019 because he received compensation from OWCP and SSA
benefits without an appropriate offset. The case record, however, does not establish that he was
ever covered under FERS. Rather, the evidence only points to coverage under the CSRS. It,
therefore, remains unclear whether appellant was covered under a federal retirement annuity
program during the period of the overpayment.
As OWCP has not established that appellant received an overpayment of compensation
during the period August 1, 2004 through September 14, 2019, the Board finds that OWCP has
not met its burden of proof.7
LEGAL PRECEDENT -- ISSUE 4
Under the FEGLI program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the OLI options.8 The coverage for BLI is effective unless
waived9 and premiums for BLI and OLI coverage are withheld from the employee’s pay.10 Upon
retirement or upon separation from the employing establishment or being placed on FECA periodic
compensation rolls, an employee may choose to continue BLI and OLI coverage, in which case
the schedule of deductions made will be used to withhold premiums from his or her annuity or
compensation payments.11 BLI coverage shall be continued without cost to an employee who
retired or began receiving compensation on or before December 31, 1989;12 however, the
employee is responsible for payment of premiums for OLI coverage which is accomplished by
authorizing withholdings from his compensation.13

6

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

7

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

8

5 U.S.C. § 8702(a).

9

Id. at § 8702(b).

10

Id. at § 8707.

11

Id. at § 8706.

12

Id. at § 8707(b)(2).

13
Id. at § 8706(b)(3)(B); see F.F., Docket No. 19-1630 (issued April 7, 2020); B.B., Docket No. 17-1733 (issued
March 26, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

6

A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance: option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).14 Each employee must elect or waive option A, option B, and option C
coverage, in a manner designated by OPM, within 60 days after becoming eligible unless, during
earlier employment, he or she filed an election or waiver that remains in effect.15 An employee
who does not file a life insurance election with his or her employing office, in a manner designated
by OPM, specifically electing a type of optional insurance, is considered to have waived it and
does not have that type of optional insurance coverage.16 When an underwithholding of life
insurance premiums occurs, the entire amount is deemed an overpayment of compensation,
because OWCP must pay the full premium to OPM upon discovery of the error.17
ANALYSIS -- ISSUE 4
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $12,782.49 for the period August 1, 2017 through
August 17, 2019.
In a January 24, 2018 letter to appellant, OWCP advised that all FEGLI optional life
insurance (OLI) premium deductions should automatically stop when a claimant reaches age 65,
unless an election is made to continue OLI coverage beyond this age. The letter informed him that
“due to computer error, OWCP has deducted OLI premiums past his 65th birthday without having
an OLI post-65 election documented in his case file. Appellant was then requested to inform OPM
of his post-65 OLI election. He selected the option to continue his OLI at no reduction and signed
the form on January 27, 2018, indicating, “I want to continue my current OLI at no reduction.”
However, the record does not include an election form reflecting appellant’s initial OLI and PRBLI
selections. Furthermore, the January 27, 2018 letter form appellant did not advise or request that
he wished to elect OLI or PRBLI benefits retroactive to August 1, 2017. The current record does
not include any other FEGLI election form signed by appellant indicating his life insurance
elections as of August 1, 2017.

14
See C.A., Docket No. 18-1284 (issued April 15, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
15

5 C.F.R. § 870.504(a)(1).

16

Id. at § 870.504(b).

17

5 U.S.C. § 8707(d); see also B.B. and S.B., supra note 13.

7

The Board finds that OWCP failed to adequately support its determination that appellant
received an overpayment of compensation for the period August 1, 2017 through August 17, 2019.
The record indicates that appellant elected that his OLI be continued on January 27, 2018 at no
reduction. However, the record does not contain an election form designating the options selected.
The Board has previously found that OWCP must document whether and when a claimant elected
life insurance coverage, and the type of coverage elected after separation from federal service or
retirement.18
As OWCP has not factually established appellant’s election of optional life insurance at no
reduction, the Board finds that it has not met its burden of proof to establish that appellant received
an overpayment of compensation from August 1, 2017 through August 17, 2019.19
CONCLUSION
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of compensation during the period August 1, 2004 through
September 14, 2019 for which he was not at fault because he concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without an appropriate offset.
The Board further finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $12,782.48 for the period August 1, 2017 through
August 17, 2019.

18

See G.C., Docket No. 18-1451 (issued May 5, 2020); P.K., Docket No. 18-0913 (issued March 5, 2020); C.P.,
Docket No. 19-0317 (issued July 1, 2019).
19

In light of the Board’s disposition of Issue 4, Issues 5 and 6 are rendered moot.

8

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 10, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
SURFACE DEPLOYMENT & DISTRIBUTION
COMMAND, Fort Eustis, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Charles E. Samuels, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-808
Issued: July 26, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant filed an appeal of a March 15, 2006 decision of the Office
of Workers’ Compensation Programs denying her request for a hearing and a December 8, 2006
nonmerit decision denying her request for a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the denial of hearing issue and the nonmerit denial of
reconsideration. The last merit decision of record was a January 10, 2006 decision denying
appellant’s emotional condition claim. Because more than one year has elapsed between the last
merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of
this claim.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a hearing;
and (2) whether the Office properly denied her request for a merit review.

FACTUAL HISTORY
On July 8, 2005 appellant, then a 50-year-old traffic management specialist, filed an
occupational disease claim (Form CA-2), alleging that she sustained stress in the performance of
duty on or before February 1, 2005.
In a September 21, 2005 letter, the Office advised appellant of the type of factual and
medical evidence needed to establish her claim. It emphasized the need for a detailed description
of the employment factors alleged to have caused or contributed to the claimed emotional
condition. The Office also requested a rationalized statement from appellant’s attending
physician explaining how and why the identified work factors would cause the claimed
condition. Appellant was afforded 30 days in which to submit such evidence.
In an October 6, 2005 report, Dr. Ronald V. Kidd, an attending licensed clinical
psychologist, related appellant’s account of discrimination, unfair treatment, sexual harassment
and false accusations at the employing establishment on unspecified dates. He diagnosed
dysthymic disorder, a recurrent major depressive episode, generalized anxiety disorder and panic
disorder.
In an October 13, 2005 letter, the employing establishment asserted that appellant filed
her claim to recoup 80 hours of sick leave used from February 22 to March 7, 2005 for a stressrelated absence. The employing establishment stated that, due to a “personality conflict with
another employee …, [appellant] was reassigned to another position” with similar duties in a
different division.
In a November 2, 2005 letter, appellant attributed her stress and panic attacks to a
subordinate being promoted over her in August 1997, management harassment and reprisals due
to an Equal Employment Opportunity (EEO) settlement, being made to work the second shift in
December 2003 to favor a coworker, alleged management favoritism shown to this coworker on
or about April 16, 2004, false accusations that appellant threatened this coworker, anxiety that
the false accusations would result in revocation of her security clearance, a fear that appellant
would lose her job and a July 7, 2004 reassignment.
By decision dated January 10, 2006, the Office denied appellant’s emotional condition
claim on the grounds that she failed to establish any compensable factors of employment. It
accepted as factual that appellant disliked working the second shift in December 2003 and that
she was afraid she would be terminated. The Office found that the assignment of work was an
administrative matter not in the performance of duty and that no error or abuse was shown. It
also found that appellant’s fear that she would lose her job was self-generated and
noncompensable. The Office further found that she did not establish that she was harassed,
falsely accused of threatening a coworker or that the coworker was favored over her.
In a letter dated and postmarked February 10, 2006, appellant requested an oral hearing
before a representative of the Office’s Branch of Hearings and Review.
By decision dated March 15, 2006, the Office denied appellant’s request for a hearing on
the grounds that it was untimely filed. It found that her request for a hearing was postmarked on

2

February 10, 2006 more than 30 days after issuance of the Office’s January 10, 2006 decision.
The Office additionally denied appellant’s request for a hearing on the grounds that the issues
involved could be addressed equally well by requesting reconsideration and submitting new
evidence establishing that she sustained an injury in the performance of duty.
In a September 7, 2006 letter, appellant requested reconsideration. She submitted
January 31 and February 28, 2005 letters from Dr. Kidd that did not mention work factors.
Appellant also submitted a duplicate copy of Dr. Kidd’s October 6, 2005 report.
By decision dated December 8, 2006, the Office denied reconsideration on the grounds
that the evidence submitted was insufficient to warrant a review of the case on the merits. It
found that appellant’s letter failed to provide relevant factual evidence regarding the critical issue
of performance of duty. The Office further found that Dr. Kidd’s letters were irrelevant as
appellant had failed to establish any compensable factors of employment.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary … is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”1 Sections 10.617 and 10.618 of the federal regulations
implementing this section of the Act provide that a claimant shall be afforded a choice of an oral
hearing or a review of the written record by a representative of the Secretary.2 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.3
ANALYSIS -- ISSUE 1
The Office denied appellant’s claim by January 10, 2006 decision. Appellant’s letter
requesting an oral hearing was postmarked February 10, 2006, more than 30 days after the
January 10, 2006 decision. Thus, the Office properly found that appellant’s hearing request was
not timely filed under section 8124(b)(1) of the Act and that she was not entitled to a hearing as a
matter of right.
The Office then exercised its discretion and determined that appellant’s request for a
hearing could equally well be addressed by requesting reconsideration and submitting additional
evidence establishing that the claimed emotional condition was causally related to her federal
employment. As the only limitation on the Office’s authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from known
1

5 U.S.C. § 8124(b)(1).

2

20 C.F.R. §§ 10.616, 10.617.

3

Claudio Vasquez, 52 ECAB 496 (2002).

3

facts.4 The Board finds that there is no evidence of record that the Office abused its discretion in
denying appellant’s request. Thus, the Board finds that the Office’s denial of appellant’s request
for a review of the written record was proper under the law and facts of this case.
LEGAL PRECEDENT -- ISSUE 2
To require the office to reopen a case for merit review under section 8128(a) of the Act,5
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.6 Section 10.608(b)
provides that, when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.7
In support of his request for reconsideration, the claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 The appellant need
only submit relevant, pertinent evidence not previously considered by the Office.9 When
reviewing an Office decision denying a merit review, the function of the Board is to determine
whether the Office properly applied the standards set forth at section 10.606(b)(2) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS -- ISSUE 2
The Office denied appellant’s emotional condition claim by decision dated January 10,
2006 finding that she submitted insufficient evidence to establish any compensable factors of
employment. Appellant then requested reconsideration by September 7, 2006 letter.
The critical issue at the time of the last merit decision in the case was whether appellant
established any compensable factors of employment. To be relevant, the evidence submitted in
support of the September 7, 2006 request for reconsideration must address that issue.
Appellant’s letter requesting reconsideration is insufficient to establish her allegations as factual.
Therefore, it is irrelevant to the claim. Similarly, the letters and report from Dr. Kidd, an
attending licensed clinical psychologist, are irrelevant as they do not contain factual evidence

4

Daniel J. Perea, 42 ECAB 214 (1990).

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2) (2003).

7

20 C.F.R. § 10.608(b) (2003).

8

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

10

Annette Louise, 54 ECAB 783 (2003).

4

establishing any compensable employment factors. The Board has held that the submission of
evidence irrelevant to the issue involved is not a basis for reopening a case.11
Thus, appellant has not established that the Office improperly refused to reopen her claim
for a review of the merits under section 8128(a) of the Act, because she did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or constitute relevant and pertinent new
evidence not previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing. It
further finds that the Office properly denied appellant’s request for a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 8 and March 15, 2006 are affirmed.
Issued: July 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
_____________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, PUBLIC WORKS )
BUSINESS CENTER, Fort Bragg, NC, Employer
)
_____________________________________________ )
R.M., Appellant

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

Docket No. 07-96
Issued: March 8, 2007

Case Submitted on the Record

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

JURISDICTION
On October 12, 2006 appellant filed a timely appeal from an August 2, 2006 Office of
Workers’ Compensation Programs’ decision adjudicating his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a two percent impairment of the right ear
causally related to his employment and whether he has any ratable impairment of the left ear.
FACTUAL HISTORY
On June 4, 2003 appellant, then a 55-year-old maintenance mechanic supervisor (chief of
utilities), filed an occupational disease claim alleging that he sustained bilateral hearing loss and
ringing in his ears causally related to noise exposure at work.1 On March 22, 2005 the Office
1

In a May 21, 2003 report, an otolaryngologist diagnosed bilateral high frequency sensorineural hearing loss
caused by industrial noise exposure and bilateral tinnitus.

accepted his claim for bilateral noise-induced hearing loss. On March 30, 2005 appellant filed a
claim for a schedule award. He submitted copies of audiograms dated 1971 to 2000.
The Office referred appellant to Dr. Walter R. Sabiston, a Board-certified
otolaryngologist, for an examination on March 3, 2005. Dr. Sabiston stated that appellant had
bilateral high frequency sensorineural hearing loss caused by industrial noise exposure. An
audiogram performed on March 3, 2005 revealed the results of testing at the frequency levels of
500, 1,000, 2,000 and 3,000 cycles per second (cps): right ear decibels of 10, 5, 25 and 65; left
ear decibels of 5, 5, 5 and 60.
On March 18, 2005 an Office medical adviser reviewed the results of the audiometric
testing performed for Dr. Sabiston and applied the Office’s standardized procedures. He totaled
the decibels of 10, 5, 25 and 65 in the right ear for the frequency levels of 500, 1,000, 2,000 and
3,000 cps at 105 decibels and divided by 4 to obtain the average hearing loss of 26.25 decibels.
This average was then reduced by 25 decibels to equal 1.25 decibels which was multiplied by the
established factor of 1.5 to compute a 1.88 percent impairment of the right ear, rounded to 2
percent.2 The Office medical adviser totaled the losses of 5, 5, 5 and 60 in the left ear at 75
decibels and divided by 4 to obtain the average hearing loss of 18.75 decibels. This average was
then reduced by 25 decibels to equal zero which was multiplied by the established factor of 1.5
to compute a zero percent impairment of the left ear. The Office medical adviser indicated that
appellant had a two percent impairment of the right ear and a zero percent left ear impairment,
according to the standardized Office procedures for determining entitlement to a schedule award.
By decision dated August 2, 2005, the Office granted appellant a schedule award for 1.04
weeks for a two percent impairment in the left ear.3
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulation5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent

2

Multiplying 1.25 by 1.5 equals 1.875 which the Office medical adviser rounded to 1.88.

3

The Federal Employees’ Compensation Act provides for 52 weeks of compensation for 100 percent loss of
hearing in one ear. 5 U.S.C. § 8107(c)(13)(A). Multiplying 52 weeks by 2 percent equals 1.04 weeks of
compensation.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

Impairment (A.M.A., Guides) has been adopted by the implementing regulation as the
appropriate standard for evaluating losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M..A, Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.8 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.9 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.11 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.12
ANALYSIS
The Office medical adviser reviewed the results of the audiometric testing performed on
March 3, 2005 for Dr. Sabiston and properly applied the Office’s standardized procedures. He
totaled the decibels of 10, 5, 25 and 65 in appellant’s right ear for the frequency levels of 500,
1,000, 2,000 and 3,000 cps at 105 decibels and divided by 4 to obtain the average hearing loss of
26.25 decibels. This average was then reduced by 25 decibels to equal 1.25 decibels which was
multiplied by the established factor of 1.5 to compute a 1.88 percent impairment of the right ear,
rounded to 2 percent. The Office medical adviser totaled the losses of 5, 5, 5 and 60 in the left
ear at 75 decibels and divided by 4 to obtain the average hearing loss of 0 decibels. This average
was then reduced by 25 decibels to equal 1.25 decibels which was multiplied by the established
factor of 1.5 to compute a zero percent impairment of the left ear. The Board finds that the
Office medical adviser correctly determined that appellant had a two percent impairment of the
right ear and no ratable impairment of the right ear.
On appeal, appellant asserts that he should be compensated for ringing in both ears, a
condition called tinnitus. The A.M.A, Guides allows for compensation of up to five percent for
tinnitus “in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”13 The Board has held that there is no basis for paying a schedule
6

Id.

7

A.M.A., Guides 250 (5th ed. 2001).

8

Id.

9

Id.

10

Id.

11

Id.

12

Donald E. Stockstad, 53 ECAB 301(2002); petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
13

A.M.A., Guides 246; Leslie M. Mahin, 55 ECAB 311 (2004).

3

award for a condition such as tinnitus unless the medical evidence establishes that the condition
caused or contributed to a permanent and ratable loss of hearing under the Act’s schedule award
provisions.14 On May 21, 2003 an otolaryngologist diagnosed bilateral high frequency
sensorineural hearing loss caused by industrial noise exposure and bilateral tinnitus. However,
he did not address whether the tinnitus caused or contributed to appellant’s hearing loss.
Dr. Sabiston did not diagnose tinnitus. The medical evidence in this case does not establish that
appellant has a tinnitus condition that caused or contributed to his loss of hearing. Consequently,
appellant is not entitled to a schedule award for his tinnitus condition.
CONCLUSION
The Board finds that appellant has no more than a two percent impairment of the right
ear. He has no ratable impairment of the left ear.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2005 is affirmed.
Issued: March 8, 2007
Washington, DC

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

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

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

14

Donald A. Larson, 41 ECAB 947 (1990); Charles H. Potter, 39 ECAB 645 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 13-1594
Issued: January 30, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On June 26, 2013 appellant sought appeal from a January 14, 2013 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without conducting a merit review. The Board assigned Docket No. 13-1594.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. OWCP accepted appellant’s claim for right chest
wall sprain. On July 9 and September 2, 2011 appellant filed notices of recurrence of disability
on those dates. The recurrence claims noted her current address. By decision dated October 13,
2011, OWCP denied appellant’s claim for a recurrence. The decision was mailed to an incorrect
address and, on October 25, 2011, the October 13, 2011 decision was returned to OWCP as
unable to forward. In an October 31, 2011 telephone call memorandum, OWCP was advised by
appellant that the decision was sent to an incorrect address. It advised her that a copy of the
decision would be mailed to the correct address. No new decision was issued. In a telephone
call memorandum dated September 20, 2012, OWCP was again contacted by appellant who
provided her correct address and requested a copy of appeal rights from the October 13, 2011
decision. In a letter dated October 5, 2012, which was received on October 16, 2012, appellant
requested reconsideration. In a January 14, 2013 decision, OWCP denied her request for
reconsideration finding that it was not timely filed and failed to present clear evidence of error.
OWCP regulations provide that a copy of its decision shall be mailed to the
employee’s last known address.1 Under the mailbox rule, it is presumed, in the absence of
1

20 C.F.R. § 10.127.

evidence to the contrary, that a notice mailed to an individual in the ordinary course of
business was received by that individual. This presumption arises when it appears from the
record that the notice was properly addressed and duly mailed.2 However, as a rebuttable
presumption, receipt will not be assumed when there is evidence of nondelivery.3 Also, it is
axiomatic that the presumption of receipt does not apply where a notice is sent to an incorrect
address.4 OWCP mailed the October 13, 2011 decision to an incorrect address and it was
returned as OWCP as being unable to forward on September 4, 2012. Thus, the Board finds
that OWCP did not properly issue its October 13, 2011 decision.5 For this reason, the case
will be remanded to OWCP for proper adjudication to include the issuance of de novo
decision. Accordingly,
IT IS HEREBY ORDERED THAT the January 14, 2013 nonmerit decision of the
Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
further action consistent with this order of the Board.
Issued: January 30, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

2

See Michelle Lagana, 52 ECAB 187 (2000).

3

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

4

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

5

See M.C., Docket No. 12-1778 (issued April 12, 2013).

2