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

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

Docket No. 11-87
Issued: September 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 14, 2010 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ (OWCP) August 12 and September 3, 2010 merit
decisions denying her claim for disability compensation. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that she was totally disabled on or after
August 28, 2009 due to her September 25, 2008 employment injuries.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 25, 2008 appellant, then a 43-year-old mail handler,
sustained a contusion of the right foot and ankle, sprain of the right foot and great toe and
complex regional pain syndrome when an over-the-road container rolled over her foot. In a
July 20, 2009 decision, it accepted her claim for total disability for the period March 5 through
July 3, 2009.2 On August 14, 2009 appellant accepted and returned to work four hours per day
in a modified part-time regular mail handler position.
On August 28 and September 17, 2009 appellant filed claims for compensation (Form
CA-7) for the period August 15 through September 11, 2009. A time analysis form dated
September 3, 2009, indicated that she worked four hours on August 15 and 18, 2009 and claimed
leave without pay (LWOP) for two hours each day. Appellant then claimed LWOP for six hours
each day through September 11, 2009 due to her September 25, 2008 employment injuries.
An unsigned operative report dated August 19, 2009 contained the typed name of
Dr. James E. Sykes, a Board-certified osteopath and indicated that appellant underwent a trial
placement of a spinal cord stimulator electrode which was authorized by OWCP. A spinal cord
stimulator was removed on August 21, 2009 as the electrodes were shocking her in the ribs. On
August 26, 2009 appellant underwent a second stimulator implantation at a lower level. On
August 31, 2009 the trial stimulator was removed. Appellant was diagnosed with lumbar
radiculitis and complex regional pain syndrome (CRPS) of the lower extremity.
Investigative reports dated August 31, 2009 and documents related to video surveillance
of appellant from February 4 to August 27, 2009, by the employing establishment indicated that
she was observed walking freely and dancing in high heels at a wedding on August 22, 2009, one
day after having a spinal cord stimulator removed.
In an August 28, 2009 investigative questionnaire, Dr. Sykes stated that he reviewed a
video of the August 22, 2009 wedding incident. He stated that appellant resembled his patient,
but he could not identify her with any certainty. Dr. Sykes further stated that the activities
documented on the video were not consistent with the manner in which she presented herself to
him. He related that appellant was not keeping within her stated degree of disability based on
her activities in the video. Appellant indicated to him that she was not capable of engaging in
the observed activities. Dr. Sykes stated that she currently had a trial spinal cord stimulator in
place that may be able to become permanent. He advised that appellant should be able to return
to work, especially if she was in the video and most probably without restrictions. Dr. Sykes
concluded that she appeared to have misrepresented herself, based on the video, but initially she
demonstrated findings consistent with CRPS.
In another investigative questionnaire dated August 28, 2009, Dr. Jill Frerichs, a
podiatrist, also reviewed the investigative video. She identified appellant as her patient.
Dr. Frerichs treated appellant from April 3 through June 12, 2009 and stated that the observed
activities were not consistent with the manner in which she presented herself during this period.
2

In the July 20, 2009 decision, OWCP indicated that appellant was already compensated for her disability from
February 28 through March 3, 2009 by the employing establishment through her use of sick leave.

2

Appellant was unable to bear full weight on her right lower extremity. She was unable to wear
regular shoes and needed continued assistance with walking. Dr. Frerichs stated that, based on
the video, appellant had no degree of lower extremity disability at that time. Appellant advised
her on April 3, May 1 and June 12, 2009 that she was incapable of bringing her heel to the
ground when walking and ambulating without a crutch. Dr. Frerichs advised that appellant was
capable of returning to full-time work at the employing establishment without restrictions. She
stated that appellant had severe pain and dysfunction of her right foot and ankle during her
examinations. Dr. Frerichs concluded that she was unable to comment on what improvements
and accomplishments appellant had made as she was currently being treated by Dr. Sykes.
By letter dated September 22, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested rationalized medical evidence explaining
why she was totally disabled from her employment during the claimed period.
In an October 1, 2009 report, Dr. Sykes stated that appellant suffered from work-related
chronic regional pain syndrome involving the right foot. He recommended that she proceed with
permanent placement of a spinal cord stimulator to treat the accepted condition.
In an October 16, 2009 letter, appellant stated that she returned to light-duty work
following her September 25, 2008 employment injuries. Dr. Sykes placed appellant off work to
undergo a spinal stimulator trial. It was removed one day prior to her son’s wedding, but she
was still unable to put pressure or walk on her right foot. Appellant still needed to walk on her
toes. On the day of the wedding she wore shoes with a heel for approximately eight minutes
which was the length of the ceremony. Afterwards, appellant walked in her bare feet. She
engaged in one short dance with her son and daughter-in-law. Appellant’s tall son held her up
and she danced on her toes with her daughter-in-law. For the rest of the night she sat down with
her foot elevated.3
In an October 8, 2009 note, Dr. Sykes listed appellant’s physical restrictions.
In a December 16, 2009 decision, OWCP denied appellant’s claim for total disability
compensation for the period August 15 through September 11, 2009. It found that she was not
entitled to the additional two hours claimed on August 15 and 18, 2009. Although appellant’s
four-hour shift was changed to a six-hour shift on June 6, 2009, she was only entitled to fours of
LWOP as she worked a four-hour shift on the date her disability began on February 28, 2009.
OWCP further found that she was not entitled to temporary total disability compensation for the
remainder of the claimed hours from August 15 through September 11, 2009 based on the
August 22, 2009 investigative video and medical opinions of Dr. Frerichs and Dr. Sykes.
By letter dated January 6, 2010, appellant, through counsel, requested a telephone
hearing.

3

On October 17, 2009 the employing establishment issued a notice of proposed removal to appellant based on her
misrepresentation of her ability to work. On February 8, 2010 the proposed removal was still pending.

3

In a March 17, 2010 decision, OWCP denied appellant’s wage-loss compensation after
August 28, 2009, on the grounds that the medical evidence established that she had been released
to return to her regular work duties as of that date.4
By letter dated March 25, 2010, appellant, through counsel, requested a telephone hearing
regarding the March 17, 2010 decision.
In a June 1, 2010 decision, OWCP’s hearing representative reversed in part and set aside
in part the December 16, 2009 decision. She found that appellant performed limited-duty work
four hours per day on August 15, 2009 and was not entitled to compensation for an additional
two hours per day as claimed since she never actually worked a six-hour shift. However, the
hearing representative found that she was entitled to four hours of compensation per day from
August 19 to 28, 2009 as she was placed off work by Dr. Sykes effective August 19, 2009 to
undergo a spinal cord stimulator trial and subsequent authorized procedures which were
performed on August 21 and 26, 2009. She further found that the investigative video and the
August 28, 2009 opinions of Dr. Frerichs and Dr. Sykes were insufficient to establish that
appellant was medically released to return to unrestricted duty effective that date. The hearing
representative additionally found that there was no medical evidence establishing that the
accepted CRPS condition had resolved as appellant underwent the authorized spinal cord
stimulator trials during this period and was under Dr. Sykes’ care for the accepted condition.
Dr. Sykes’ questionnaire was speculative in nature regarding appellant’s ability to return to
unrestricted duty as he could not positively identify her in the video. Further, he advised that she
still had the trial cord stimulator in place and that a permanent one should be implanted.
Dr. Sykes’ statements that appellant “may be able” to return to work “most probably” without
restrictions were vague and generalized and did not definitively establish that he released her to
unrestricted duty. Further doubt was cast on his opinion regarding her work capability due to his
October 8, 2009 medical restrictions. The hearing representative concluded that Dr. Frerichs’
opinion was of little probative value as she was not a treating physician and had not medically
evaluated appellant for over two months. On remand, she instructed OWCP to obtain
clarification from Dr. Sykes as to whether he medically released appellant to return to
unrestricted duty as of August 28, 2009 with regard to her accepted right CRPS condition. It was
also instructed to ask him to explain why he later provided work restrictions. After such further
development as it deemed necessary, OWCP was instructed to issue an appropriate merit
decision as to whether appellant was entitled to continuing disability compensation.
During a June 15, 2010 telephone hearing regarding the March 17, 2010 decision,
appellant’s attorney stated that appellant was not claiming compensation for the period after
August 28, 2009 since she had been released to return to work six hours per day and was
assigned to a six-hour work shift.
In an August 12, 2010 decision, OWCP terminated appellant’s compensation benefits
effective August 28, 2009 on the grounds that the medical evidence failed to establish that she
was totally disabled on or after that date due to her September 25, 2008 employment injuries. It
4

In the March 17, 2010 decision, it appears that OWCP inadvertently stated that it had terminated appellant’s
wage-loss compensation rather than denied her claim for disability compensation as she was not in receipt of wageloss compensation benefits at the time the decision was issued.

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noted that the decision did not affect her entitlement to medical benefits for her accepted CRPS
condition.
In a September 3, 2010 decision, OWCP’s hearing representative affirmed the March 17,
2010 decision.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.5 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.7 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.8 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.9
The Board, however, will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.10 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
The Board finds that this case is not in posture for decision as the record is deficient since
OWCP did not comply with the hearing representative’s instructions found in the June 1, 2010
decision. The hearing representative found that appellant was entitled to total disability
compensation from August 19 to 28, 2009 as the medical evidence established that she
underwent authorized surgical procedures to treat her accepted CRPS condition during the
claimed period. However, she remanded the case to OWCP to further develop the claim in
regard to her ability to return work effective August 28, 2009. The hearing representative noted
5

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

Sandra D. Pruitt, 57 ECAB 126 (2005).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 7.

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that there was no medical evidence establishing that the accepted CRPS condition had resolved
as appellant had undergone surgical treatment for the accepted condition on August 21
and 26, 2009. She instructed OWCP to obtain clarification from Dr. Sykes as to whether he had
medically released appellant to return to unrestricted duty as of that date with regard to her
accepted right CRPS condition. OWCP was also instructed to ask Dr. Sykes to explain why he
later provided work restrictions. However, the record does not establish that OWCP asked the
physician to address the issue of appellant’s disability for work after August 28, 2009.
Appellant contended that she was not claiming compensation for the period after
August 28, 2009 as she had been released to return to work six hours per day and was assigned to
a six-hour work shift. However, she did not actually work on this shift due to her pending
removal from the employing establishment. It is well established that proceedings under FECA
are not adversarial in nature, nor is OWCP a disinterested arbiter.12 While appellant has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence to see that justice is done.13 It undertook development of the medical evidence
by remanding the case to obtain clarification from Dr. Sykes regarding appellant’s disability for
work. OWCP has an obligation to secure a report adequately addressing the relevant issue of
whether she was disabled for work on or after August 28, 2009.14 The case will be remanded for
appropriate development of the medical evidence and an appropriate merit decision on
appellant’s claim for disability compensation.
CONCLUSION
The Board finds that this case is not in posture for decision as further development is
required on the issue of whether appellant established that she was totally disabled on or after
August 28, 2009 due to her September 25, 2008 employment injuries.

12

Vanessa Young, 55 ECAB 575 (2004).

13

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1983).
14

See generally Peter C. Belkind, 56 ECAB 580 (2005) (where the opinion of OWCP second opinion physician
was unclear on whether the claimant had any permanent impairment due to his accepted employment injury, the
Board found that OWCP should secure a report adequately addressing the relevant issue). See also Melvin James,
55 ECAB 406 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 3 and August 12, 2010 decisions of
the Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: September 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Medford, NY, Employer
__________________________________________

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Appearances:
Craig J. Tortora, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-839
Issued: October 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2014 appellant, through counsel, filed a timely appeal from an October 11,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. Because more than 180 days has elapsed between the last merit
decision dated April 1, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the October 11, 2013
nonmerit decision.
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).
On appeal appellant’s counsel argues that the medical evidence establishes that appellant
has a 30 percent permanent impairment of his left ankle due to the accepted employment injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 23, 2009 appellant, then a 62-year-old custodian, filed a traumatic injury claim
alleging that on that date he injured his ankle when the door hit it. OWCP accepted the claim for
left Achilles tendinitis and left ankle contusion. It accepted appellant’s August 10, 2009 and
February 9, 2010 claims for a recurrence of disability.
On January 16, 2013 appellant filed a claim for a schedule award.
By letter dated January 23, 2013, OWCP informed appellant as to the requirements for
establishing a schedule award.
On March 18, 2013 OWCP received an undated permanent impairment worksheet which
referenced attached notes. No notes accompanied the worksheet.
On March 29, 2013 OWCP received a January 16, 2013 report from Dr. Eric P. Keefer, a
treating Board-certified orthopedic surgeon, who diagnosed Achilles bursitis or tendinitis and
chronic left Achilles and plantar fascial pain. Dr. Keefer stated that appellant had reached
maximum medical improvement and had a 30 percent permanent impairment of his left foot and
ankle based on the compensation guidelines. In reaching this impairment rating, he noted that
the default impairment for Achilles tendon tearing and inflammation, mild-to-moderate plantar
flexion and dorsiflexion defects was 20 to 25 percent. Dr. Keefer determined that appellant had
a 15 percent impairment based on the fact that he did not have full Achilles tendon tear and a 15
percent impairment for range of motion deficits from plantar fasciitis. A physical examination of
the left ankle revealed no swelling, mildly reduced strength and range of motion and tenderness
of the plantar fascial and Achilles tendon. Dr. Keefer also reported decreased tenderness and
swelling of cuboid bone with mild-to-moderate loss of motion of dorsal and plantar flexion in the
ankle joint.
By decision dated April 1, 2013, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence was insufficient to show that he sustained an impairment to a
scheduled member or function as a result of his accepted employment injury. It noted that he did
not submit an impairment rating from his treating physician.
In an appeal form request dated May 9, 2013, appellant requested reconsideration.
By decision dated May 21, 2013, OWCP denied reconsideration.
In a letter dated October 2, 2013, appellant’s counsel requested reconsideration and
referenced an enclosed medical report.2
By decision dated October 11, 2013, OWCP denied reconsideration.

2

No medical report was attached to counsel’s letter, based on a review of the record.

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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
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
OWCP accepted appellant’s claim for left Achilles tendinitis and left ankle contusion.
Appellant filed a claim for a schedule award. By decision dated April 1, 2013, OWCP denied his
schedule award claim. Appellant requested reconsideration of this decision on May 9, 2013.
The issue presented on appeal is whether he 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 his
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant 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, but appellant did not submit any evidence in
support of his request.
The Board accordingly finds that 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 argues that the medical evidence establishes that appellant has a 30
percent permanent impairment of the left foot and ankle. The only decision over which the
Board has jurisdiction is the October 11, 2013 nonmerit decision which is discussed in the
jurisdictional statement. As discussed above, appellant failed to meet any of the requirements of
section 10.606(b)(3) as he presented no pertinent new and relevant evidence, advanced no new

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

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

6

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

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legal argument, nor showed that OWCP erroneously applied or interpreted a specific point of law
with his reconsideration request.7
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 11, 2013 is affirmed.
Issued: October 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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The Board notes that there is nothing in the record to suggest that OWCP reviewed the January 16, 2013 report
from Dr. Keefer. Appellant may request a schedule award or increased schedule award based on evidence of a new
exposure or medical evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
El Reno, OK, Employer
__________________________________________

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

Docket No. 19-1952
Issued: April 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 14, 2019 appellant filed a timely appeal from a December 26, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 18, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative.
FACTUAL HISTORY
On April 25, 2018 appellant then a 57-year-old rural carrier associate, filed a left-upper
extremity injury claim (Form CA-1) alleging that he sustained an injury while in the performance
1

5 U.S.C. § 8101 et seq.

of duty on March 31, 2018 when he was assigned to a route using his personal vehicle, which
required left-handed driving for the entire shift. 2 He stopped working on April 3, 2018.
In a narrative statement dated April 26, 2018, appellant explained that he previously injured
the left radius of his wrist in a slip and fall injury at work on November 20, 2017. He indicated
that he underwent surgery, which included the placement of metal plates and 13 screws in his
radius and wrist, to repair multiple breaks and a dislocated ulna. Appellant noted that he returned
to full-duty work on approximately March 8, 2018. He indicated that on March 31, 2018 he was
assigned a route that required using his personal vehicle and left-handed driving throughout his
entire work shift. At approximately mid-day appellant felt something pop in his arm. Appellant
subsequently went to the physician and upon examination was advised that the bone in his injured
arm was still flexible and the metal plate flexed and bent until it failed.
OWCP received an undated witness statement from appellant’s supervisor, Postmaster
K.K., who indicated that appellant had not mentioned that his wrist was hurting on April 3, 2018.
K.K. indicated that appellant notified him on April 5, 2018 that his arm was hurting and he went
to the emergency room on April 6, 2018 where he discovered that a metal plate in his arm had
been broken.
In a May 14, 2018 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of additional medical evidence needed to establish his claim for
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a letter dated May 9, 2018, the employing establishment controverted appellant’s claim
alleging that he did not have a new injury and that his condition was a continuation of a prior injury
to his wrist. It also noted that he had not submitted any medical evidence supporting causal
relationship.
A May 31, 2018 witness statement from a coworker, R.M., indicated that on May 28, 2018
at approximately 9:30 a.m. he had observed appellant performing yardwork, but he had not been
able to photograph his observation.
In support of his claim, appellant submitted two duty status reports (Form CA-17) dated
May 9 and June 6, 2018, physical therapy notes, and state workers’ compensation form reports
including one signed by Dr. Zak Knutson, a Board-certified orthopedic surgeon, dated
May 9, 2018.
By decision dated June 18, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a valid medical diagnosis from a qualified
physician in connection with his March 31, 2018 employment injury. It concluded, therefore, that
he had failed to establish the medical component of fact of injury.

2

Appellant has a previously accepted claim for a November 20, 2017 employment injury, assigned OWCP File
No. xxxxx847, which has been accepted for the conditions of left wrist contusion and left-sided fracture of the lower
end of the radius initial encounter closed fracture.

2

Appellant timely requested an oral hearing before a representative of OWCP’s Branch of
Hearings and Review on July 16, 2018.
Appellant further submitted physical therapy notes and medical reports in support of his
claim including a Form CA-17 report dated August 15, 2018 and a narrative report dated
November 28, 2017 from Dr. Knutson.
In an October 12, 2018 notice, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for December 14, 2018 at 10:00 a.m. Eastern Standard
Time (EST). The notice included a toll free number to call and passcode to participate in the
telephonic hearing. OWCP instructed appellant to “call the toll free number listed below and when
prompted, enter the pass code also listed below.” It mailed the notice to his last known address of
record. Appellant did not make an appearance and no request for postponement of the hearing was
made.
By decision dated December 26, 2018, OWCP’s hearing representative found that
appellant had failed to appear at the oral hearing and had abandoned his request. The hearing
representative indicated that appellant received a 30-day advance notice of the hearing scheduled
for December 14, 2018 and found that there was no evidence that he had contacted OWCP either
prior to or subsequent to the scheduled hearing to request a postponement or explain his failure to
appear.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing upon writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 3 Unless otherwise
directed in writing by the claims examiner, an OWCP hearing representative will mail a notice of
the time and place of the hearing to the claimant and any representative at least 30 days before the
scheduled date.4 OWCP has the burden of proving that it mailed notice of the scheduled hearing
to a claimant.5 Section 10.622(f) of OWCP regulations provide that a claimant who fails to appear
at a scheduled hearing may request in writing within 10 days after the date set for the hearing that
another hearing be scheduled. 6 Where good cause for failure to appear is shown, another hearing
will be scheduled and conducted by teleconference. The failure of the claimant to request another
hearing within 10 days, or the failure of the claimant to appear at the second scheduled hearing
without good cause shown, shall constitute abandonment of the request for a hearing. Where good
cause is shown for failure to appear at the second scheduled hearing, review of the matter will
proceed as a review of the written record. 7 Where it has been determined that a claimant has
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

A.R., Docket No. 19-1691 (issued February 24, 2020).

6

20 C.F.R. § 10.622(f).

7

Id.

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abandoned his or her right to a hearing, OWCP will issue a formal decision finding that the
claimant abandoned the request for a hearing. 8
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative.
The record establishes that, on October 12, 2018 in response to appellant’s timely request
for an oral hearing, a representative of OWCP’s Branch of Hearings and Review properly mailed
a notice of the scheduled telephonic hearing to be held on December 14, 2018 at 10:00 a.m. EST.
The hearing notice was mailed to appellant’s last known address of record and provided
instructions on how to participate. Appellant failed to call in for the scheduled hearing using the
provided telephone number. He did not request a postponement or provide an explanation to
OWCP for his failure to attend the hearing within 10 days of the scheduled hearing. The Board
thus finds that OWCP properly determined that appellant abandoned his request for a telephonic
hearing.9
On appeal appellant asserts that he was unable to appear for the December 14, 2018 hearing
because he serves as the caregiver for his mother, who suffers from Alzheimer’s-like dementia,
and circumstances separated him from the materials needed to call and appear at the scheduled
hearing. However, there is no evidence of record that he requested a postponement or provided
this explanation to OWCP within 10 days of the scheduled hearing. 10 The Board, therefore, finds
that appellant abandoned his request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative.11

8

A.J., Docket No. 18-0830 (issued January 10, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
9

Id.

10

See R.S., Docket No. 19-1484 (issued January 13, 2020) (where the Board found that appellant had abandoned
his request for a May 21, 2019 oral hearing after his mother had been hospitalized on May 9, 2019, because there was
no evidence that he had provided this information to OWCP within 10 days of the scheduled hearing).
11
Upon return of the case file OWCP should consider administratively combining the present claim with appellant’s
accepted left-upper extremity claim in OWCP File No. xxxxxx847.

4

ORDER
IT IS HEREBY ORDERED THAT the December 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.Y., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPORT ACTIVITY, Norfolk, VA, Employer
__________________________________________

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Appearances:
Orville Theel, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1857
Issued: October 15, 2010

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant timely appealed the February 4, 2010 merit
Office of Workers’ Compensation Programs, which granted a schedule award.
appealed the June 23, 2010 nonmerit decision, which denied reconsideration.
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.1

decision of the
He also timely
Pursuant to 20
schedule award

ISSUES
The issues are: (1) whether appellant has greater than 12 percent impairment of the right
upper extremity; and (2) whether the Office properly denied his April 1, 2010 request for
reconsideration under 5 U.S.C. § 8128(a).
1

Appellant initially requested oral argument before the Board. However, in subsequent correspondence he
indicated that, while he was willing to attend oral argument, he thought it was “unnecessary” because he had already
submitted all the supporting medical documents to the Office. As discussed infra, rather than conduct oral
argument, the Board believes that appellant’s interest would be better served by remanding the case to the Office for
issuance of a proper decision based upon a thorough review of all relevant evidence of record. Accordingly, the
Board acting within its discretion denies appellant’s request for oral argument pursuant to 20 C.F.R. § 501.5 (2009).

FACTUAL HISTORY
Appellant, a 61-year-old air conditioning equipment mechanic, has an accepted claim for
right shoulder sprain and right rotator cuff tear, which occurred on January 29, 2008.2 On
February 4, 2010 the Office granted a schedule award for 12 percent impairment of the right
upper extremity. The award covered a period of 37.44 weeks from February 2 through
October 22, 2009. The Office based the schedule award on the August 12, 2009 report of its
district medical adviser (DMA), who in turn relied upon the February 2, 2009 report of
Dr. Wayne T. Johnson, a Board-certified orthopedic surgeon.3
On April 1, 2010 appellant requested reconsideration.4 The request was accompanied by
Dr. Johnson’s February 15, 2010 office notes. He indicated that it had been a year since he last
examined appellant. Dr. Johnson provided physical examination findings, shoulder range of
motion measurements. He noted that overall there were some minor changes both for
improvement and deterioration, but he did not see any change in appellant’s disability rating,
which Dr. Johnson previously found to be 18 percent of the right upper extremity.
By decision dated June 23, 2010, the Office denied appellant’s request for
reconsideration noting, inter alia, that the request did not include “new and relevant evidence.”
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,

2

Appellant’s torn rotator cuff was surgically repaired on February 25, 2008.

3

Dr. Johnson, who previously operated on appellant’s right shoulder, found 18 percent impairment of the right
upper extremity. While he stated that his rating was based on the 5th edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2001), Dr. Johnson did not identify the particular table(s) he
relied upon in calculating appellant’s impairment. The DMA reviewed Dr. Johnson’s February 2, 2009 examination
findings under both the 5th and 6th editions of the A.M.A., Guides, and in both instances found no more than 12
percent right upper extremity impairment due to loss of motion in the shoulder.
4

Appellant submitted a similar request on February 19, 2010. After acknowledging the initial reconsideration
request on February 24, 2010, the Office sought clarification as to whether appellant was requesting review of the
February 4, 2010 schedule award or requesting an additional schedule award. He filed the April 1, 2010 request for
reconsideration in response to the Office’s March 29, 2010 correspondence. Appellant clarified that he was in fact
challenging the February 4, 2010 schedule award based on what he perceived to be an unresolved conflict in medical
opinion between the DMA and Dr. Johnson.
5

For total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).

2

5 U.S.C.

Guides as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009,
schedule awards are determined in accordance with the 6th edition A.M.A., Guides (2008).7
ANALYSIS -- ISSUE 1
Although the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the 6th edition of the A.M.A., Guides, the shoulder regional grid, Table 15-5,
A.M.A., Guides 401-05, provides that, if loss of motion is present, the impairment may
alternatively be assessed using section 15-7, range of motion (ROM) impairment.8 A range of
motion impairment stands alone and is not combined with a diagnosis-based impairment.9 In his
August 12, 2009 report, the DMA explained that the alternative diagnosis-based impairment
rating would not be as great as the ROM rating, and therefore, the ROM assessment was the
better impairment model.
The Office properly determined that appellant had 12 percent impairment of the right
upper extremity due to loss of motion in the shoulder. While appellant’s surgeon did not rate his
impairment under the 6th edition of the A.M.A., Guides, the DMA was able to apply
Dr. Johnson’s February 2, 2009 examinations findings to the latest edition of the A.M.A.,
Guides. According to Table 15-34, A.M.A., Guides 475, flexion of 140 degrees represents three
percent impairment of the upper extremity. Abduction of 120 degrees also represents three
percent upper extremity impairment under Table 15-34, and 40 degrees of internal rotation
represents four percent upper extremity impairment. Lastly, 10 degrees of external rotation
represents two percent impairment under Table 15-34. Adding the above-noted shoulder ROM
impairments results in 12 percent impairment of the right upper extremity as correctly noted by
the DMA in his August 12, 2009 report. Accordingly, when the Office issued its February 4,
2010 schedule award the medical evidence of record did not demonstrate a greater impairment
than the 12 percent awarded.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.10 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.11
6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
8

See section 15-7, A.M.A., Guides 459, 461.

9

Id. at 461.

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

3

When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application without reopening
the case for a review on the merits.12
ANALYSIS -- ISSUE 2
In his April 1, 2010 request for reconsideration appellant specifically noted that he
enclosed a recent report from his doctor dated February 15, 2010. The Office’s June 23, 2010
decision makes no mention of Dr. Johnson’s February 15, 2010 report. It only acknowledged
receipt of appellant’s “letter” requesting reconsideration. Furthermore, the Office found that
appellant’s request did not include “new and relevant evidence.” Most likely, it simply
overlooked Dr. Johnson’s February 15, 2010 report, which did include new examination
findings. This evidence is both new and relevant, and the Office should have referred the
doctor’s latest report to its DMA as it had similarly done with Dr. Johnson’s February 2, 2009
report. Further merit review is appropriate where appellant submits relevant and pertinent new
evidence not previously considered by the Office.13 The Board finds that appellant submitted
relevant and pertinent new evidence with his April 1, 2010 request for reconsideration, thereby
satisfying the third requirement under 20 C.F.R. § 10.606(b)(2).14 Consequently, appellant is
entitled to a review of the merits of his schedule award claim.15 The case shall be remanded to
the Office for merit review followed by the issuance of an appropriate de novo decision.
CONCLUSION
Appellant failed to establish that he has greater than 12 percent impairment of the right
upper extremity. The Board further finds that the Office improperly denied his April 1, 2010
request for reconsideration.

12

Id. at § 10.608(b).

13

Id. at § 10.606(b)(2)(iii).

14

Id.

15

Id. at § 10.608(b).

4

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. However, the Office’s June 23, 2010 decision is
set aside and the case remanded for further action consistent with this decision.
Issued: October 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADIMISTRATION MEDICAL
CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 12-756
Issued: December 21, 2012

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 February 21, 2012 appellant, through her attorney, filed a timely appeal from a
January 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an injury on January 3, 2011 in the performance
of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 29, 2011 appellant, then a 63-year-old scheduling clerk, filed a traumatic
injury claim alleging that on January 3, 2011 she sustained neck and back pain, severe headaches
and blurred vision when she fell on a cracked curb onto the wheel of a metro bus. The incident
occurred at 4:45 p.m. in the crosswalk in front of Building 2 on the premises of the employing
establishment. Appellant stopped work on January 4, 2011. The employing establishment
controverted her claim, noting that the incident occurred one and a quarter hours after her tour
ended at 3:30 p.m. It asserted that appellant could have taken a metro bus at 3:50 p.m.2
By letter dated April 4, 2011, the employing establishment maintained that appellant was
not in the performance of duty at the time of her injury. It related:
“[T]he incident claimed happened one[-]hour and 15 minutes after [appellant’s]
work tour had ended. Her timecard does not show that [she] worked overtime on
[January 3,] 2011…. There is no information at this time indicating why the
claimant stayed at work after her tour ended, and did not start her journey to go
home until she got injured at 4:45 p.m. on [January 3, 2011].”
On April 5, 2011 OWCP requested that appellant explain why she was still at the
employing establishment at 4:45 p.m. when she stopped work at 3:30 p.m. It asked which bus
she was attempting to catch and whether she was waiting for a late bus.
By decision dated May 12, 2011, OWCP denied appellant’s claim after finding that she
did not establish that she was in the performance of duty at the time of the alleged January 3,
2011 incident.3 It noted that she had not responded to its request that she clarify why she
remained at work after the end of her duty tour.
On June 7, 2011 appellant’s attorney requested a telephone hearing, held before an
OWCP hearing representative on October 14, 2011. Counsel related that appellant used a cane
to walk. Appellant regularly caught the 5:00 p.m. bus because of her limitation in mobility and
the significant distance between the bus stop and work building. The bus was private and not
operated by the employing establishment. A coworker or supervisor usually gave appellant a
ride to the bus stop. The closest bus stop was located on the property of the employing
establishment in front of Building 2. Appellant worked in Building 5. She originally worked in
Building 5 and could drive to the door of the building. After the employing establishment
moved appellant to Building 2, she had to take the bus to work and back. On January 3, 2011
appellant’s supervisor authorized a coworker to give her a ride on a scooter to the bus stop. The
scooters were used to get from building to building on the premises of the employing
establishment. Appellant took the elevator down from the third floor and waited for the
designated coworker to give her a ride to the bus stop. After she received the ride to Building 5
on a scooter, she stayed in the building until she saw her bus. Appellant fell on the curb walking
2

The employing establishment submitted a schedule showing that a metro bus stopped at the employing
establishment at times including 3:50 p.m. and at 5:02 p.m.
3

OWCP indicated in its decision that appellant’s work tour ended at 3:50 p.m. instead of 3:30 p.m.

2

to the crosswalk. She related that she customarily caught an elevator from the third floor when
her shift ended and waited in the lobby for a ride to Building 2 and then waited inside Building 2
for her bus. Counsel asserted that her mobility problems explained the gap in time between her
shift ending and catching the bus.
By letter dated November 4, 2011, the employing establishment reiterated that appellant
stopped work on January 3, 2011 at 3:30 p.m. It noted that the bus stop, while on the premises of
the employing establishment, was public and that most employees drove their own vehicles. The
employing establishment had no control over the schedule or route of the bus.
In a November 10, 2011 e-mail message, Jonathan Jackson, appellant’s supervisor,
related that she received a ride from Building 2 to Building 5 each morning and evening on an
electric cart. He stated:
“Once again this was a courtesy to [appellant] so no official agreement was ever
made by the [employing establishment] to accommodate this transfer. We only
provided it because she had trouble walking and was [not] capable of making the
walk which took about [seven minutes] on foot for a typical person, but by widget
it would only take [three minutes]. Once the drop off to Building 2 was
successful she usually waited in the lobby until her bus came to pick her up.”
By decision dated January 12, 2012, OWCP’s hearing representative affirmed the
May 12, 2011 decision. He found that appellant had not sufficiently explained why she was on
the premises of the employing establishment at 4:45 p.m. but that it appeared to be for her own
convenience.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase sustained
while in the performance of duty5 is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.6 Arising in the course of employment relates to the elements of time, place and
work activity. To arise in the course of employment, an injury must occur: (1) at a time when
the employee may reasonably be said to be engaged in her master’s business; (2) at a place
where she may reasonably be expected to be in connection with her employment; and (3) while
she was reasonably fulfilling the duties of her employment or engaged in doing something

4

5 U.S.C. § 8102(a).

5

In the course of employment deals with the work setting, the locale and the time of injury, while arising out of
the employment encompasses not only the work setting, but also a causal concept, the requirement being that an
employment factor caused the injury. See Larry J. Thomas, 44 ECAB 291 (1992).
6

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

3

incidental thereto;7 and (4) when it is the result of a risk involved in the employment or the risk
is incidental to the employment or to the conditions under which the employment is performed.8
This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement on an injury arising out of the employment must be shown and this
encompasses not only the work setting, but also a causal concept that the employment caused the
injury. In order for an injury to be considered as arising out of the employment, the facts of the
case must show that substantial employer benefit is derived or an employment requirement gave
rise to the injury.9
Under FECA, an injury sustained by an employee having fixed hours and place of work
while going to or coming from work is generally not compensable because it does not occur in
the performance of duty. However, many exceptions to the rule have been declared by the courts
and workers’ compensation agencies. One such exception almost universally recognized is the
premises rule: an employee going to or coming from work before or after working hours or at
lunch, while on the premises of the employer, is compensable.10 This includes a reasonable
interval before and after official working hours while the employee is on the premises engaging
in preparatory or incidental acts. What constitutes a reasonable interval depends not only on the
length of time involved, but also on the circumstances occasioning the interval and nature of the
employment activity. The mere fact that an injury occurs on an industrial premises following a
reasonable interval after working hours is not sufficient to bring the injury within the
performance of duty. The concomitant requirement of an injury arising out of the employment
must also be shown.11
ANALYSIS
Appellant alleged that she sustained an injury on January 3, 2011 when she slipped and
fell crossing a street to get on a bus. At the time of her injury, she was on the premises of the
employing establishment in the process of leaving work. As a general matter, injuries occurring
on the premises of the employing establishment, while the employee is going to or from work,
before or after working hours or at lunchtime are compensable.12 What constitutes a reasonable
interval depends not only on the length of time involved, but also on the circumstances
surrounding the interval and nature of the employment activity.13 The issue is whether
appellant’s injury occurred at a reasonable interval after the end of her working hours.

7

See R.S., 58 ECAB 660 (2007); Eugene G. Chin, 39 ECAB 598 (1988).

8

See Carmen B. Gutierrez (Neville R. Baugh), 7 ECAB 58 (1954); Harold Vandiver, 4 ECAB 195 (1951).

9

See E.S., 58 ECAB 340 (2007); Charles Crawford, 40 ECAB 474 (1989).

10

See D.L., 58 ECAB 667 (2007); Emma Varnerin, M.D., 14 ECAB 253 (1963).

11

See L.K., 59 ECAB 465 (2008); Narbik A. Karamian, 40 ECAB 617 (1989).

12

See Diane Bensmiller, 48 ECAB 675 (1997).

13

See William W. Knispel, 56 ECAB 639 (2005).

4

Appellant’s tour of duty was from 7:00 a.m. to 3:30 p.m. She alleged that she sustained
an injury at 4:45 p.m., 1 hour and 15 minutes after her tour of duty ended. Board decisions in
these types of cases evaluate what caused the time delay for appellant’s coming early or leaving
late.14 In William W. Knispel, the Board affirmed the denial of coverage for a claimant injured
riding a bicycle to a bus stop on the premises of the employing establishment 45 minutes after
his work shift ended. It found that he remained on the premises after his work shift for personal
reasons relating to his commute home. Similarly, in Timothy K. Burns,15 an employee was
injured 20 minutes before his tour of duty. He was on the premises for a personal exercise
program. The Board found that the employee’s presence was purely for his personal
convenience and that he was not engaged in any preparatory or incidental act related to his
employment. On the other hand, in Catherine Callen, the Board found coverage where a legal
secretary sustained an injury six hours after her tour of duty ended when she remained at work to
complete a requested project.16
OWCP denied appellant’s claim after finding that she failed to adequately explain why
she remained on the premises after her work hours ended. It determined that she could have
taken the bus at 3:50 p.m. rather than waiting for the 5:00 p.m. bus. Appellant, however, related
that she had difficulty walking and used a cane. After her work hours ended, she took the
elevator to the lobby of Building 5, where she worked, and waited for a coworker or supervisor
to provide her with a ride on a scooter to Building 2, where the bus stopped. Appellant’s
supervisor confirmed that he arranged transportation for appellant on a scooter to and from the
bus stop daily. Larson, in his treatise on workers’ compensation law, provides:
“When there is some legitimate special reason why the employee needs the
longer-than-usual interval, the course of employment may be extended to
surround the extra time. For example, claimant, following an operation, had
difficulty walking, and customarily remained at her desk with her employer’s
knowledge for one hour after the close of [her workday] until her husband came
for her. While leaving, she tripped over a loose wire that had been displaced
when the office was cleaned 15 minutes early. Compensation was awarded.”17
Compensation has also been awarded when the employer provides assistance to
employees during egress from work. Larson provides:
“The claimant had been rendered immobile by a preexisting condition of
rheumatoid arthritis. While being transferred from a secretarial chair to her
wheelchair by a fellow employee some 15 minutes after the close of her workday,
she fell to the floor and suffered a fracture of the right distal femur. The
[employing establishment] appealed an award favorable to the claimant,
contending that the worker’s injury did not arise out of nor occur in the course of
14

Id.

15

44 ECAB 125 (1992).

16

Catherine Callen, 47 ECAB 192 (1995).

17

A. Larson, The Law of Workers’ Compensation, § 21.06(b) (2006).

5

employment. He also alleged that the claimant’s injury was not compensable
because it did not result from some physical condition of the employer’s
premises. The court affirmed the award, stating that an employee is deemed to be
within the course of employment for a reasonable time while she winds up her
affairs and leaves the premises. The court rejected the employer’s other
contention by noting that the conduct and aid of the fellow employee was the
beginning step in the egress of the claimant from the employer’s premises, and as
such, the resulting injury was compensable just as though the injury had resulted
from any other condition of the employer’s premises.”18
The Board finds that appellant was in the performance of duty at the time of the
January 3, 2011 incident. Appellant remained on the premises after her work shift because she
required additional time to get to the bus transportation due to mobility issues. Further, the time
that she traveled from Building 5 to Building 2, where the bus stop was located, was outside of
her control as she waited on the employing establishment to shuttle her between the buildings as
occurred on a daily basis during the workweek. Consequently, the Board will remand the case
for OWCP to adjudicate whether appellant sustained an injury due to the January 3, 2011
incident and, if so, the extent of any disability. After such development as is deemed necessary,
it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

Id. § 21.06(1)(a) n. 12.

6

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 21, 2012
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

7


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

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Appearances:
Laura C. Marquez, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0914
Issued: February 16, 2022

Case Submitted on the Record

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

JURISDICTION
On May 27, 2021 appellant, through his representative filed a timely appeal from an
April 29, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days has elapsed from the last merit decision, dated March 11, 2020, 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 to review 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 a prerecoupment
hearing as untimely filed.
FACTUAL HISTORY
On August 8, 1989 appellant, then a 38-year-old letter sorting machine operator, filed a
traumatic injury claim (Form CA-1) alleging that on that date he injured his back while lifting and
twisting with a tub of mail while in the performance of duty. OWCP accepted the claim for
lumbosacral strain with radiculopathy. Appellant subsequently accepted a modified distribution
clerk position on November 1, 1996. He stopped work on March 18, 2008.3 On April 30, 2008
OWCP found that the employing establishment had only four hours of work available within
appellant’s medical restrictions. On January 20, 2010 it determined that the employing
establishment could no longer provide him with light-duty work. OWCP paid appellant wage-loss
compensation. 4
On March 11, 2021 OWCP advised appellant of its preliminary determination that he had
received an overpayment of compensation in the amount of $63,119.26 for the period January 1,
2017 through February 27, 2021 because he concurrently received Social Security Administration
(SSA) age-related retirement benefits and FECA wage-loss compensation without appropriate
offset. It determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery questionnaire (Form OWCP20) and submit supporting financial documentation, including copies of income tax returns, bank
account statements, bills, pay slips, and any other records to support income and expenses.
Additionally, it provided an overpayment action request form and advised him that, within 30 days
of the date of the letter, he could request a final decision based on the written record or request a
prerecoupment hearing.
By overpayment action request form, dated April 11, 2021, appellant requested a
prerecoupment hearing. 5 He disagreed with the fact and amount of the overpayment and requested
waiver of recovery. Appellant contended that he was receiving SSA benefits for disability due to
a mental health diagnosis and not due to his accepted employment-related back condition.

3

On April 29, 2008 appellant filed a notice of recurrence (Form CA-2a) alleging that he continued to experience
lower back pain due to his accepted August 8, 1989 employment injury. On April 30, 2008 he completed a claim for
compensation (Form CA-7) and indicated that his retirement was under the Federal Employees’ Retirement System
(FERS).
4

By decision dated October 15, 2010, OWCP reduced appellant’s compensation due to his failure to cooperate with
vocational rehabilitation counseling based on the constructed position of general office/administrative clerk. By
decision dated March 11, 2020, it suspended his wage-loss compensation effective March 12, 2020 as he failed to
report his ea rnings as requested. On April 6, 2020 OWCP reinstated his wage-loss compensation, retroactive to
March 12, 2020.
5

The case record does not contain an accompanying envelope showing a postmark or other carrier’s date of
marking.

2

By decision dated April 29, 2021, OWCP’s Branch of Hearings and Review denied
appellant’s request for a prerecoupment hearing as untimely filed. It found that, because his
request was not postmarked within 30 days of the March 11, 2021 preliminary overpayment
determination, he was not entitled to a prerecoupment hearing as a matter of right.
LEGAL PRECEDENT
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.6 Failure to request a prerecoupment hearing within 30 days constitutes
a waiver of the right to a hearing. 7 In computing a time period, the date of the event from which
the designated period of time begins to run shall not be included, while the last day of the period
so computed shall be included unless it is a Saturday, Sunday, or a federal holiday. 8 The date of
the request is determined by the postmark or other carrier’s date marking. 9 OWCP has
administratively decided that the test used in 20 C.F.R. § 10.616(a) for determining the timeliness
of hearing requests should apply to requests for prerecoupment hearings. 10 Accordingly,
timeliness is determined by the postmark on the envelope, if available. Otherwise, the date of the
letter itself should be used. 11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for a prerecoupment
hearing as untimely filed.
The timeliness of a request for a prerecoupment hearing is determined by the postmark date
or other carrier’s marking showing when the request was sent to OWCP. 12 OWCP issued its
preliminary overpayment determination on Thursday, March 11, 2021. The 30 th day from
March 11, 2021 was April 10, 2021. As this fell on a Saturday, appellant had until Monday,
April 12, 2021 to request a prerecoupment hearing.13 As appellant’s request for a prerecoupment
6
20 C.F.R. § 10.432; see E.G., Docket No. 19-0176 (issued February 23, 2021); S.O., Docket No. 20-0753 (issued
October 28, 2020); E.M., Docket No. 19-0857 (issued December 31, 2019); D.H., Docket No. 19-0384 (issued
August 12, 2019).
7

Id.

8

See B.W., Docket No. 16-1860 (issued May 4, 2017); M.R., Docket No. 11-970 (issued August 12, 2011);
Donna A. Christley, 41 ECAB 90 (1989). See also John B. Montoya, 43 ECAB 1148 (1992).
9

Id. at §§ 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019); see also B.W., Docket No.
18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.0400.2(f) (September 2020).
11

See J.H., Docket No. 06-1565 (issued February 20, 2007); James B. Moses, 52 ECAB 465 (2001), citing
William J. Kapfhammer, 42 ECAB 271 (1990); see also Douglas McLean, 42 ECAB 759 (1991).
12

Supra note 7.

13

Supra note 8.

3

hearing was dated Sunday, April 11, 2021, it was timely filed.14 The Board thus finds that OWCP
improperly denied appellant’s request for a prerecoupment hearing. 15
On remand, OWCP shall conduct a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review, to be followed by any necessary further development
and a de novo decision.16
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a prerecoupment
hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

Supra note 9.

15

See E.G., supra note 6; E.V., Docket No. 17-1328 (issued December 11, 2017). See also R.U., Docket No. 160027 (issued March 24, 2017); Ronald E. Morris, Docket No. 05-1553 (issued November 23, 2005).
16

Order Remanding Case, N.G, widow of T.G., Docket No. 19-1482 (issued September 17, 2020); C.R., Docket
No. 15-0525 (issued July 20, 2015).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1545
Issued: December 1, 2014

Case Submitted on the Record

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

JURISDICTION
On June 30, 2014 appellant filed a timely appeal from a February 4, 2014 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 met his burden of proof to establish that he sustained an
injury on September 17, 2013.
FACTUAL HISTORY
On September 30, 2013 appellant, then a 56-year-old maintenance mechanic, filed a
traumatic injury claim alleging that on September 17, 2013 he sustained a back injury. He

1

5 U.S.C. § 8101 et seq.

alleged that he injured his back when he lifted a conveyor roller to facilitate drive belt
installation. Appellant did not stop work.
By letter dated October 4, 2013, OWCP notified appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised to submit medical evidence from his
physician including a diagnosis, opinion on causal relationship, and results of any x-ray or
laboratory findings.
In a September 30, 2013 statement, appellant noted that he injured himself when he bent
over a conveyor belt to lift a large conveyor belt roller. He felt a pop in his lower back and pain
which limited his mobility. In an October 15, 2013 witness statement, appellant’s coworker
concurred with appellant’s assertions.
In a September 30, 2013 report, Dr. Aaron Wall, a chiropractor, diagnosed vertical
subluxation and severe disc degeneration of the lumbar spine. He advised that appellant was
being treated with spinal adjustments three times a week in order to correct his spinal
misalignment. Dr. Wall stated that appellant lost over 50 percent of his lumbar curve and 80
percent of the disc space at the L4-L5 level. He noted that appellant’s spinal cord was
compressed at the base of his skull and the base of his lower back. Dr. Wall advised that
appellant should refrain from twisting his back and lifting more than 20 pounds for at least four
weeks. Several treatment notes from Dr. Wall were submitted. On September 25, 2013 Dr. Wall
indicated that x-rays were ordered due to postural distortion found during the physical
examination. In an accompanying September 25, 2013 x-ray report, appellant was diagnosed
with subluxations at C5-C6, T2-T3, and L3-L4, narrowed disc space and osteoarthritis.
In an October 15, 2013 report, Dr. Wall diagnosed vertebral subluxation and severe disc
degeneration of the lumbar spine. He noted that appellant injured his back on September 17,
2013 at work while heavy lifting. Appellant related that he lifted a conveyor roller and twisted at
the same time. Dr. Wall opined that lifting and twisting at the same time, combined with
degenerative disc at the L4-L5 level, would exacerbate the entire lower back region and cause
severe pain and limited range of motion. He advised that appellant would be reevaluated in one
month and x-rayed again in two months. Dr. Wall expected to see 30 to 50 percent improvement
by appellant’s two-month x-ray.
On October 20, 2013 appellant accepted a limited-duty assignment.
By decision dated February 4, 2014, OWCP denied appellant’s claim. It found the
medical evidence insufficient to establish causal relation. OWCP found that there were no x-ray
reports diagnosing subluxation of the spine; therefore, Dr. Wall was not a physician as defined
under FECA.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

2

she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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
Section 8101(2) of FECA provides that the term physician, as used therein, includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the Secretary.7 Without a diagnosis of a subluxation from
x-ray, a chiropractor is not a physician under FECA and his or her opinion on causal relationship
does not constitute competent medical evidence.
ANALYSIS
On September 17, 2013 appellant lifted a conveyor roller and OWCP accepted that the
claimed work incident occurred. Therefore, the Board finds that the first component of fact of
injury is established. However, the medical evidence does not establish that this work incident
caused an injury.
OWCP found that Dr. Wall was not a physician within the meaning of FECA because
appellant did not submit an x-ray report diagnosing subluxation of the spine. Its regulations
provide that a chiropractor may interpret his own x-rays to the same extent as any other
physician and do not require that an x-ray film or x-ray report be submitted. The regulations
provide that the x-ray or a report of the x-ray be made available for submittal upon request.8
Dr. Wall noted that appellant was seen on September 25, 2013. X-rays were obtained by the
3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

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

7

5 U.S.C. § 8101(2).

8

See 20 C.F.R. § 10.311(c).

3

chiropractor which were interpreted as showing spinal subluxations. In his September 30 and
October 15, 2013 reports, Dr. Wall diagnosed subluxations of the cervical, thoracic, and lumbar
spine. He submitted the x-ray report of September 25, 2013 that diagnosed subluxations of the
spine. As Dr. Wall diagnosed a spinal subluxation based on a review of x-rays, he is a physician
under FECA.9
In his October 15, 2013 report, Dr. Wall diagnosed vertebral subluxation and severe disc
degeneration of the lumbar spine. He noted that appellant’s back injury resulted from a
September 17, 2013 work incident involving heavy lifting. Dr. Wall stated that appellant related
to him that he lifted and twisted at the same time. He opined that lifting and twisting at the same
time combined with degenerative disc at the L4-L5 level would exacerbate the entire lower back
region and cause severe pain and limited range of motion. Although Dr. Wall opined that the
work incident combined with appellant’s degenerative condition would exacerbate the entire
lower back region and cause severe pain, he did not specifically explain the reasons why this
incident caused the diagnosed subluxation. He did not provide adequate medical rationale
explaining the process by which lifting and twisting at the same time would have caused
subluxation.
In his September 30, 2013 report, Dr. Wall diagnosed vertical subluxation and severe disc
degeneration of the lumbar spine. He advised that appellant was being treated with spinal
adjustments three times a week in order to correct his spinal misalignment. Although this report
provides a medical diagnosis, it does not give a history of the injury nor does it provide an
opinion on causal relationship. As a result, it is insufficient to discharge appellant’s burden of
proof.10 Other treatment notes from Dr. Wall do not support that appellant’s low back condition
was caused or aggravated by work factors on September 17, 2013. As a result, these reports are
of little probative value.
On appeal appellant argues that medical evidence does include an x-ray report identifying
subluxations at C5-C6, T2-T3, and lumbar L3-L4. The Board agrees that the medical evidence
includes a diagnosis of subluxation as demonstrated by an x-ray. However, Dr. Wall did not
sufficiently explain the reasons why the work incident caused or contributed to the diagnosed
spinal subluxations.
Consequently, appellant has submitted insufficient medical evidence to establish his
claim. As noted, causal relationship is a medical question that must be established by probative
medical opinion from a physician.11 The physician must accurately describe appellant’s work
duties and medically explain the pathophysiological process by which these duties would have

9

See T.A., Docket No. 14-1334 (issued October 27, 2014); Mary A. Ceglia, 55 ECAB 626 (2004); Robert S.
Winchester, 54 ECAB 191 (2002).
10

See Jaja K. Asaramo, 55 ECAB 200 (2004).

11

See supra note 6.

4

caused or aggravated his condition.12 Because appellant has not provided such medical opinion
evidence in this case, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 did not establish that he was injured in the performance of
duty.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2014
Washington, DC

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

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

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

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

5