United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
PUGET SOUND HEALTH CLINIC, Seattle, WA, )
Employer
)
__________________________________________ )
R.L., Appellant

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

Docket No. 20-0098
Issued: March 17, 2022

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 October 16, 2019 appellant filed a timely appeal from a July 18, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 2015 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she developed emotional distress and severe anxiety on December 18,
2014 at 11:00 a.m. when the employing establishment police improperly arrested her with an
unwarranted display of force while she was engaged in union duties.
In a January 21, 2015 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a factual
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information regarding appellant’s alleged
emotional condition claim, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement, a copy of her position
description, and the results of any investigation. It afforded both parties 30 days for response.
On January 15, 2015 Dr. Keith Sonnanburg, a licensed clinical psychologist, opined that
appellant was totally disabled due to a work-related psychological injury. On February 2, 2015 he
diagnosed work-related stress and anxiety. Dr. Sonnanburg, in an attending physician’s report
(Form CA-20) dated February 4, 2015, checked a box marked “Yes” to indicate that her condition
was caused or aggravated by her employment activity and added that her condition was directly
related to episodes at her place of work.
By decision dated February 24, 2015, OWCP denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the claimed incident
occurred, as alleged. It noted that she had not submitted a factual statement outlining specific
details of the alleged December 18, 2014 employment incident. Thus, OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 4, 2015 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. She provided additional information in support of
her request. In a March 3, 2015 statement, appellant noted that she was a union vice-president and
was responsible for representing employees in meetings and hearings with management, filing
grievances, and protecting employees’ rights. She explained that in the course of representing an
employee, R.G., a pathologist, she met with him on December 18, 2014 to discuss a fact-finding
interview scheduled on that date. Appellant had consulted via telephone with J.M., a physician
who was also the national union representative, who confirmed that R.G. was entitled to union
representation at the scheduled fact-finding interview. She and the chief union steward, A.T., met
S.L, the Acting Director of the employing establishment, and R.N., an employing establishment
official, in the hallway and S.L. informed them that R.G. did not have representation rights for the
interview. Appellant disagreed and noted that R.G. had requested her presence during the
interview. She attended the interview with the permission of the interviewer and took notes.
2

Docket No. 18-1375 (issued May 1, 2019).

2

Shortly after the interview began, R.N. interrupted the meeting and insisted that appellant and A.T.
leave. After appellant left the room, she informed R.N. that she would file an unfair labor practice
complaint against the employing establishment and requested his name. She remained outside the
conference room in the hallway on her cellphone when two armed and uniformed employing
establishment police officers, Lt. W.C., and Lt. E., began searching the area near the conference
room. They subsequently entered the conference room, returned to appellant, and asked her name.
The officers then informed her that they had been asked to remove her from that area and then that
floor of the employing establishment’s building. Appellant alleged that her removal was solely
because of her protected union activities. She noted that Lt. W.C. became agitated and denied that
there were any charges against her, but asked for her security badge. Appellant informed the
officers that her badge was in her office and led them to her office to retrieve her badge. The
officers again denied that she was under arrest and released her from custody after reviewing her
badge. Appellant alleged that this incident caused her heart palpitations, shock, and fear. She was
unable to continue her work that day and eventually went home. Appellant reported to work the
next day and again experienced heart palpitations and tension. She felt that the stress was too
much. Appellant had to ask coworkers to assist with completing her assigned work. Thereafter,
she began to have nightmares about working at the employing establishment.
Appellant noted that she had filed a Federal Labor Relations Authority (FLRA) complaint
against the employing establishment, but had not yet received a final decision. She alleged that
the employing establishment interfered with protected union activity when it called the police after
she left the interview on December 18, 2014.
Appellant provided a February 19, 2015 witness statement from R.G., who noted that he
had requested that she accompany him to the interview to protect his rights. R.G. noted that he
had invited appellant into the interview and the interviewer had indicated that he did not have a
problem with her presence. He asserted that shortly after the interview began, management
officials, including R.N., entered the room and informed the participants that R.G. did not have
the right to union representation. Appellant then left the room.
In a February 19, 2015 statement, B.A., the union president, described the events of
December 18, 2014 and confirmed that the police officers denied that appellant was under arrest,
but escorted her into her office and examined her badge. She informed B.A. that the officers had
been called to remove her from the area of the meeting. B.A. alleged that an officer advised her
that the “panic button” had been pushed as a means of calling the police to the scene.
A February 20, 2015 e-mail from J.M. indicated that he was aware that appellant was acting
as R.G.’s representative in the scheduled interview. On February 20, 2015 A.T. reported that he
had attended the December 18, 2014 meeting with appellant and R.G. He confirmed that the
interviewer consented to their presence during the interview. A.T. was taking notes when R.N.
entered and asserted that union representation was not allowed. He and appellant then left the
room.
In an undated form report, Dr. Sonnanburg noted that appellant was attending a meeting as
a union representative and was shocked by the employing establishment police who responded to
an improper panic signal and removed her. He diagnosed adjustment disorder with mixed anxiety
and depressed mood with post-traumatic stress disorder symptom pattern.

3

On May 5, 2015 appellant requested reconsideration of the February 24, 2015 OWCP
decision.
In a September 29, 2015 development letter, OWCP requested additional factual
information from the employing establishment including a statement from a supervisor regarding
the accuracy of appellant’s claim, whether her job was stressful, and a copy of her position
description. It afforded 30 days for a response. The employing establishment responded,
contending that R.G. was not entitled to union representation at the December 18, 2014 interview
and that appellant was aware of this fact. It alleged that appellant entered the room where the
interview was scheduled on December 18, 2014 and R.N. had asked her to leave. The employing
establishment asserted that she commented that she would leave the room, but would stand
immediately outside the door. Appellant then demanded information from R.N. in a loud and
aggressive manner. R.N. informed her that her behavior was inappropriate and asked her to leave
the floor. Appellant refused. R.N. then asked the receptionist to summon the police and she
activated the panic button call. The police arrived and asked to see appellant’s identification. They
escorted her to her office to retrieve her badge.
The employing establishment contended that appellant was not arrested, accosted, or
subject to unwarranted display of force. It asserted that R.G. had no right to union representation,
that she was advised of this, that she refused to leave the area when asked, and that she was
therefore acting on her own volition, not as part of protected union activity. The employing
establishment concluded that appellant was not in the performance of duty.
By decision dated January 19, 2016, OWCP modified its February 24, 2015 decision,
finding that appellant had not established a compensable factor of employment and, thus, an injury
was not sustained in the performance of duty. It noted that there was no evidence that the
employing establishment’s actions regarding the December 18, 2014 meeting were abusive,
erroneous, or improper and found that her reactions were self-generated.
On January 18, 2017 appellant requested reconsideration of the January 19, 2016 decision
on January 18, 2017. She provided an additional narrative statement dated January 14, 2017,
wherein she asserted that on December 18, 2014 she attended a meeting on the fifth floor of the
employing establishment in room 523 to represent R.G. Appellant was ordered to leave the room
and did so. She remained in the hallway, outside of the room awaiting R.G. in case her assistance
was needed. Appellant alleged that she was quiet, that she was not disruptive, and that she was
checking her cellphone for the number of J.M. to ask for advice. She noted that she was so quiet
that the police officers did not notice her and had to ask where she was. When appellant asked
what charges were being leveled against her, one of the officers became red -faced and flustered.
The police officer used an angry voice to tell appellant that she had to leave the fifth floor and that
he had to remove her from the area. Appellant believed that she had no choice but to leave with
the police under their escort. The police officers walked on either side and escorted her to her
fourth floor office. While there, they notified appellant that she was free to go.
In a January 3, 2017 letter, B.A. indicated that R.G. requested union help and that on
December 18, 2014 appellant was engaged in representational functions at the time of her injury.
She noted that she was appellant’s supervisor and that appellant was entitled to official time at the
time of her injury.

4

On January 4, 2017 A.B., an employing establishment administrative assistant, provided a
statement noting that on December 18, 2014 she observed appellant enter the conference room.
She asserted that appellant was asked to leave the room and did so. R.N. then asked A.B. to call
security, which she did. A.B. noted that appellant was in the hallway after leaving the conference
room and did not raise her voice or make noise. She contended that appellant did not cause any
commotion or disturbance from the time when she left the conference room until the police
removed her from the area.
Appellant provided a copy of the FLRA-approved settlement agreement signed by the
acting regional director of the employing establishment on January 23, 2016 and the FLRA notice
to employees which was signed by the employing establishment’s medical center director on
January 24, 2016. Under the FLRA settlement agreement, the employing establishment was
required to ensure that all references to the police encounter with appellant o n December 18, 2014
was expunged from its records, and forbidden to rely on this incident in any future action. It was
also required to post the following notice to all employees:
“On or about December 18, 2014, [the employing establishment] police removed
[appellant] from a location where she was waiting for an employee to exit a
meeting. The [FLRA] statute prohibits an agency from interfering with an
employee’s exercise of protected activity and/or taking an action against an
employee because of the exercise of protected activity.”
The notice further provided that the employing establishment would not interfere with the exercise
of protected activity or take an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
On March 17, 2017 the employing establishment responded to appellant’s January 18,
2017 request for reconsideration. In a statement dated November 3, 2015, A.B., noted that she
was sitting at her desk on December 18, 2014 near room 523 at the employing establishment. She
indicated that appellant was standing right in front of her desk and that she was shaken by her
disruptive behavior, including yelling and screaming. A.B. asserted that appellant was asked to
leave the area and refused to go. R.N. requested that she contact the police.
In an e-mail dated May 28, 2015, R.N. asserted that the December 18, 2014 meeting was
not associated with personnel issues, that the union had no vested interest in attending, and that
both R.G. and the union were made aware of these facts prior to the meeting. He indicated that
the union presence was disruptive and unnecessary. R.N. asked the union officials to leave. He
alleged that appellant became confrontational and initially refused to leave the room. Appellant
then agreed to leave the room, but asserted that she would stand immediately outside the door in
an outer office area. Once in the office area, she then demanded identification from R.N. R.N.
asserted that appellant’s demeanor was loud and aggressive. He informed her that this behavior
was inappropriate and again asked her to leave, but she refused. A.B. was asked to summon the
police and activated a panic button. When the police arrived, they asked to see appellant’s
identification. Appellant did not have identification, and the officer escorted her out of the area.

5

R.N. asserted that she was not engaged in protected union activity and that her disruptive behavior
in the outer office work environment was inappropriate.
In an e-mail dated November 23, 2015, Lt. W.C. noted that on December 18, 2014 he was
called to room 523 due to a disruptive situation. He indicated that he contacted someone in the
office who informed him that they were conducting a meeting, that appellant was being disruptive,
and that person requested that she be escorted out of the office as the meeting did not require union
presence. Lt. W.C. asserted that she was argumentative toward the staff, loud, and disruptive. He
advised appellant that she needed to leave the area and she became argumentative toward him and
told him that it was her right to be in the office. Lt. W.C. escorted her to the union office and
directed her actions to the union president. He alleged that appellant accused him of not knowing
how to do his job.
On April 26, 2017 OWCP provided appellant with a copy of the employing establishment’s
responses and afforded her 20 days to submit comments. On May 15, 2017 appellant responded
and asserted that in the FLRA posting, the employing establishment admitted to interfering with
protected activity and interfering with appellant’s exercise of her rights in accordance with FLRA
statute. She further noted that the settlement agreement included that her interactions with the
employing establishment police on December 18, 2014 would be expunged from the employing
establishment’s records.
By decision dated June 27, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
her reconsideration request was received on January 20, 2017. In a memorandum of telephone
call (Form CA-110) dated September 7, 2017, OWCP’s claims examiner noted reviewing
appellant’s claim file and found that her requests for reconsideration were entered into the
Integrated Federal Employees’ Compensation System (iFECS) on January 18, 19, and 20, 2017.
The claims examiner directed her to either appeal to the Board or to make an additional request
for reconsideration which would not be timely, but noted that the date of her original request for
reconsideration would establish clear evidence of error.
On September 20, 2017 appellant requested reconsideration of the January 19, 2016
decision. She noted that her initial request for reconsideration was received by OWCP on
January 18, 2017 and therefore, was timely.
By decision dated January 8, 2018, OWCP reviewed the merits of appellant’s claim but
denied modification of its January 19, 2016 decision. It found that she had submitted no evidence
to demonstrate that the employing establishment acted in an abusive or improper manner in regard
to the accepted December 18, 2014 employment incident. OWCP further found that the FLRA
settlement agreement did not include an admission of error or abuse on the part of the employing
establishment. It determined that appellant’s emotional reaction was self-generated and not due
to a compensable factor of her employment.
Appellant appealed to the Board, and in its May 1, 2019 decision, 3 the Board set aside the
January 8, 2018 decision and remanded the case for OWCP to request that the employing
3

Id.

6

establishment address her use of official time at 11:00 a.m. on December 18, 2014, when she
alleged that her injury occurred. The Board further directed OWCP to require that the employing
establishment provide documentation establishing whether she was performing a representational
function at the fact-finding interview on December 14, 2018. The Board determined that if the
employing establishment found that appellant was not on official time, she should be advised of
this finding and provided an opportunity to submit relevant evidence on the issues. Following any
further development, OWCP was to issue a de novo decision.
In a May 22, 2019 development letter, OWCP requested that the employing establishment
address appellant’s use of official time on December 18, 2014 at 11:00 a.m. and to provide
documentation establishing her representational function. It further requested that the employing
establishment provide documentation, in the form of appropriate regulations, executive order, or
union agreement covering the specific situation. OWCP noted that in the absence of a full reply
from the employing establishment, it could accept appellant’s allegations as factual.
In a June 28, 2019 letter, the employing establishment responded and asserted that
appellant was not performing a union representational function during the time of her alleged
workplace injury on December 18, 2014 at 11:00 a.m. It noted that prior to the alleged incident,
appellant had represented R.G. in a grievance filed on December 1, 2014. In addressing this
grievance, R.G. also raised quality of medical care concerns. On December 12, 2014 W.C., the
Chief of Staff and the employing establishment deciding official, partially accepted the grievance
and directed the employing establishment to initiate an independent fact-finding by a qualified
pathologist into the issues raised by R.G. regarding validation of laboratory studies which resulted
in the medical quality review scheduled on December 18, 2014. The employing establishment
asserted that on December 18, 2014 it was addressing R.G.’s concerns to ensure improvement in
quality medical care at the facility in accordance with 5 U.S.C. § 7114; 38 U.S.C. §§ 5705, 7311,
and 7422, and its medical bylaws, Article IX. It further asserted that the medical quality review
was conducted for the sole purpose of addressing concerns in medical quality raised by R.G. and
that anything he disclosed during the medical quality review was protected information and could
not be used for any purpose other than improving medical quality of care. The employing
establishment asserted that there was no right to union representation as the medical quality review
was not about R.G., his practice, performance, conduct, or any issues specified as a ba sis for the
grievance.
The employing establishment noted that as union vice president, appellant was authorized
80 percent official time to perform union duties. However, it asserted that on December 18, 2014
at 11:00 a.m. R.G. was not entitled to union representation and appellant was not authorized to
attend the medical quality review. The employing establishment asserted that under 5 U.S.C.
§ 7114, representational rights were limited to formal discussion of a grievance or personnel
policy, practices or general condition of employment, or any examination of an employee in
connection with an investigation if the employee reasonably believes that the examination could
result in disciplinary action and if the employee requests representation. It contended that R.G.
had no reasonable expectation of disciplinary action from the December 18, 2014 medical quality
review. The employing establishment asserted that, therefore, it was under no obligation to allow
union representation during the medical quality review as it was in no way an investigation of R.G.

7

The employing establishment provided copies of Article 49 of the union ’s rights and
privileges, the Bylaws and Rules of the Medical Staff of the employing establishment, Article IX;
5 U.S.C. § 7114, 30 U.S.C. §§ 5705, 7311, and 7422, the grievance filed by R.G. on December 1,
2014, and the response dated December 12, 2014 from W.C.
In a July 5, 2019 response, appellant asserted that she was performing union representation
for R.G. on December 18, 2014. She noted her prior representation of R.G. which had begun with
written counseling he received on October 7, 2014 during his probationary period. Appellant
noted that beginning on November 10, 2014 R.G. was undergoing a Focused Professional Practice
Evaluation (FPPE) which evaluated his ability to communicate effectively with staff, his
productivity in areas requiring close interaction with colleagues, and his professional behavior.
The FPPE required him to institute implementation of calculated ionized calcium in the laboratory
test menu, implemental qualitative confirmation assays for amphetamine, benzodiazepine, and
opiates, as well as correlate immunosuppressant drug testing. She asserted that each of these areas
was directly implicated during the December 18, 2014 medical quality review. Appellant asserted
that while the employing establishment contended that her answers during the medical quality
review could not be used against him, he was asked to resign shortly thereafter. She further
asserted that at the time of the medical quality review he had a reasonable belief that his
participation in this investigation could result in disciplinary action.
Appellant provided a May 3, 2012 letter from the union president indicating that beginning
September 2012 appellant would be on 100 percent official time.
In an undated and unsigned statement, R.G. noted that on October 9, 2014 a critical
component on chemistry analyzers, the indirect ion selective electrodes (ISE) which allowed
measurements of serum, plasma sodium, potassium, and chloride was updated, but not properly
validated. He formulated a plan to repair to the validation of ISE and on December 3, 2014 alerted
W.C. to his concerns about the quality of laboratory testing. W.C. commenced a 38 U.S.C. § 5705
medical quality assurance program review scheduled for December 18, 2014 with the interviewer.
R.G. was informed that his disclosures would not and could not result in a punitive action against
him or other employees so he attended the meeting with union representation which was removed
during the course of the meeting. He alleged that he was then subjected to retaliation for disclosing
a medical quality assurance issue in the December 18, 2014 meeting, for which he was explicitly
told he could not be punished.
By decision dated July 18, 2019, OWCP again denied appellant’s emotional condition
claim finding that the quality review was not associated with a grievance, a change in work
conditions or an investigation where a potential disciplinary action could have been imposed of
misconduct. It determined that she, therefore, was not on official time as a union representative at
the time her alleged emotional condition occurred. OWCP concluded, therefore, that appellant
had not sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’

8

compensation. When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable. 4
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force, or frustration from not being permitted to work in a particular environment,
or to hold a particular position. 5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor. 8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 10
The Board has recognized an exception to this general rule. Employees performing
representational functions which entitle them to official time are considered to be in the
performance of duty if injured during the performance of those functions. 11 The underlying
rationale for this exception is that an activity undertaken by an employee in the capacity of a union
official may simultaneously serve the interest of the employer. 12 OWCP’s procedures indicate that
representational functions include authorized activities undertaken by employees on behalf of

4

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
5

Lillian Cutler, id.

6

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
7

C.M., Docket No. 17-1076 (issued November 14, 2018); David C. Lindsey, Jr., 56 ECAB 263, 268 (2005)
Thomas D. McEuen, id.
8

Id.

9

J.G., Docket No. 17-1948 (issued September 13, 2018); Jimmy E. Norred, 36 ECAB 726 (1985).

10

J.G., id.; C.M., Docket No. 10-0753 (issued December 15, 2010).

11
J.G., supra note 9; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing
activities related to the internal business of a labor organization such as soliciting new members or collecting dues are
not considered to be in the performance of duty. The singular fact that one is on paid official time for union
representation is not enough to establish that every interaction during such official time is within the performance of
duty).
12

J.G., supra note 9; Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

other employees pursuant to such employees’ right to representation under statute, regulation,
executive order, or terms of a collective bargaining agreement.13
OWCP’s procedures discuss union representational functions and official time. 14 There
are specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. 15
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to this evidence, providing
documentation in the form of appropriate regulations, executive order or union
agreement covering the specific situation. [OWCP] will accept the ruling of the
[employing establishment] as to whether a representative was entitled to official
time unless the ruling is later overturned by a duly authorized appellate body.”16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition when the employing
establishment demanded that she leave a medical quality review meeting and the employing
establishment police escorted her from the hallway outside of the meeting while she was
performing representational union activities on December 18, 2014.
The first issue is whether appellant was in the performance of duty at the time of the alleged
employment incident. In its June 28, 2019 letter, the employing establishment acknowledged that
she utilized official time for 80 percent of her time. It did not specifically address appellant’s
official time schedule and whether or not she was on official time at 11:00 a.m. on
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

14

Id.

15

Id.

16

Id.

10

December 18, 2014. Appellant submitted a May 3, 2012 letter from the union president indicating
that, beginning September 2012, she would be on 100 percent official time and a January 3, 2017
letter from B.A., the union president, in which she noted that she was appellant’s supervisor and
that appellant was entitled to official time at the time of her injury. The Board thus finds that the
weight of the evidence of record establishes that appellant was on official time on December 18,
2014 at the time of the alleged employment incident.
The Board has held that the singular fact that one is on paid official time is not enough to
establish that every interaction during such official time is within the performance of duty. 17 The
Board has also required that a claimant be performing a mutually beneficial activity such as a
representational function. 18 The facts of this case establish that the nature of the activity in which
appellant was engaged was representational and therefore of mutual benefit to the union and her
employer.19 Representational functions include authorized activities undertaken by employees on
behalf of other employees pursuant to such employees’ right to representation under statute,
regulation, executive order, or terms of a collective bargaining agreement. 20
The alleged employment incident occurred when appellant was instructed to leave the
medical quality review meeting on December 18, 2014 after she indicated that she would file an
unfair labor practice complaint against the ejecting official, R.N. Appellant further alleged that
while she was waiting outside the meeting room for R.G. to emerge, and checking her cellphone
for J.M.’s telephone number to request advice, the employing establishment police escorted her
back to her office on a different floor. Further, the FLRA-approved settlement agreement indicated
that appellant was acting in a representational capacity when the employing esta blishment police
removed her from the meeting location. As appellant was on official time and performing
representational functions, the Board finds that she was in the performance of duty at the time of
the December 18, 2014 employment incident. 21
While the Board finds that appellant was in the performance of duty at the time of the
December 18, 2014 incident, she must also establish a compensable factor of employment.
Appellant has not attributed her emotional condition to any of the regular or specially
assigned duties of her position as a nurse. Rather, she has alleged error and abuse in administrative
matters by the employing establishment. As a general rule, a claimant’s reaction to administrative

17

J.S., Docket No. 14-1532 (issued December 4, 2015).

18

J.G., supra note 9; Ray C. Van Tassell, Jr., 44 ECAB 316 (1992).

19

See Bernard Redmond, 45 ECAB 298 (1994); Ray C. Van Tassell, Jr., id. (the Board has adopted a mutual benefit
approach to determining if union activities occurred in the performance of duty, therefore activities related to the
internal business of a labor organization, such as soliciting new members or collecting dues are not included).
20

Marie Boylan, 45 ECAB 338 (1994).

21

Wayne F. Therrien, Docket No. 97-2604 (issued December 9, 1999). See also Kelly Y. Simpson, 57 ECAB 197
(2005) (the Board found that the claimant was in a representational status at the time of her injury despite, the
employing establishment’s disagreement).

11

or personnel matters falls outside the scope of FECA. 22 Absent evidence establishing error or
abuse, a claimant’s disagreement or dislike of a managerial action is not a compensable factor of
employment. Appellant has submitted corroborative evidence of error or abuse in the
administrative actions of the employing establishment demanding that she leave the medical
quality review meeting and the employing establishment police escorting her from the hallway. In
this regard, the FLRA-approved settlement agreement required the employing establishment to
expunge all references to the encounter between appellant and its police from its records and
forbade it to rely on this incident in any future action. It also required the employing establishment
to post a notice that on or about December 18, 2014, the employing establishment police had
removed appellant from a location where she was waiting for an employee to exit a meeting. It
noted that its statute prohibited an agency from interfering with an employee ’s exercise of
protected activity and/or taking an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
The Board thus finds that appellant has submitted sufficient evidence to establish error or
abuse by the employing establishment in demanding that she leave the medical quality review
meeting and escorting her from the hallway on December 18, 2014. As appellant has established
a compensable employment factor the case presents a medical question regarding whether her
emotional condition resulted from the compensable employment factor. OWCP determined that
there were no compensable employment factors and thus did not analyze or develop the medical
evidence. The case will be remanded to OWCP for this purpose. 23 After such further development
as deemed necessary, it should issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

E.M., Docket No. 19-0156 (issued May 23, 2019),

23

Id.; see also K.J., Docket No. 17-1851 (issued September 25, 2019); T.F., Docket No. 12-0439 (issued
August 20, 2012).

12

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: March 17, 2022
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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 19-1743
Issued: March 23, 2021

Case Submitted on the Record

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

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from an August 29, 2018 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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through
June 25, 2016 as she received compensation based on a loss of wage-earning capacity (LWEC)
1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 29, 2018 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.

determination after returning to work, for which she was without fault; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On December 7, 2007 appellant, then a 24-year-old full-time city carrier, filed a traumatic
injury claim (Form CA-1) alleging that on December 5, 2007 she injured her neck and back when
she slipped and fell on an icy porch while in the performance of duty. She stopped work on the
date of injury. OWCP accepted the claim for a lumbar sprain. It paid appellant wage-loss
compensation on the supplemental rolls, effective January 21, 2008, and then on the periodic rolls,
effective November 18, 2008.
In a November 18, 2008 letter, OWCP advised appellant that it had placed her on the
periodic compensation rolls and outlined her entitlement to compensation benefits and her
responsibility to return to work in connection with the accepted employment injury. It informed
her that, if she worked for any portion of the period she received disability compensation, she must
return checks received to OWCP or an overpayment of compensation might result. For payments
sent by electronic funds transfer (EFT), she was advised to notify OWCP immediately if she
worked for a portion of the period for which a deposit was made so that the overpayment could be
collected.
In a completed Form EN1032 dated January 14, 2013, appellant reported part-time private
sector employment as a home health aide beginning August 20, 2012, with wages of $10.00 per
hour.
In an LWEC determination dated March 15, 2013, OWCP found that appellant’s part-time
employment as a home health aide in the private sector, effective August 20, 2012, fairly and
reasonably represented her wage-earning capacity. It noted that her current pay rate for her job
when injured was $1,020.42, effective January 1, 2013, and calculated that she earned $370.00 a
week as a private sector home health aide. OWCP reduced appellant’s wage-loss compensation,
accordingly, effective December 16, 2012. Appellant continued working as a private sector home
health aide through April 2013.
In a completed Form EN1032 received by OWCP on September 18, 2014, appellant
reported that she had returned to work at the employing establishment in July 2013 as a letter
carrier. Appellant noted on a completed Form EN1032 dated August 8, 2015 that permanent
medical restrictions limited her to working six hours a day, with actual earnings of $30.00 an hour
or $1,100.00 a week. OWCP continued to pay appellant wage-loss compensation under the
March 15, 2013 LWEC determination.
By notice of proposed termination dated March 22, 2016 and finalized June 14, 2016,
OWCP terminated appellant’s wage-loss and medical compensation benefits, effective June 26,
2016, as the medical evidence of record established that the accepted conditions had ceased
without residuals.
In a September 19, 2016 e-mail, the employing establishment confirmed that appellant had
returned to duty on July 15, 2013. It provided timekeeping records demonstrating that appellant
worked six hours a day for the period July 15, 2013 through December 31, 2014.
2

In letter dated January 19, 2018, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $47,664.83 for the period July 15,
2013 through June 25, 2016, because she received wage-loss compensation benefits pursuant to
the March 15, 2013 LWEC determination through June 25, 2016 although she no longer had a loss
of her wage-earning capacity after she returned to work at the employing establishment on
July 15, 2013. It found her at fault in creation of the overpayment, as she should have been
reasonably expected to realize that she was no longer entitled to the full amount of wage-loss
compensation after she had returned to work. OWCP calculated that appellant was paid
compensation as follows: $239.87 for the period July 26 to 29, 2015; $1,449.52 from July 30 to
August 22, 2015; $10,146.60 from August 23, 2015 to February 6, 2016; $1,389.12 from
February 7 to 29, 2016; $303.23 from March 1 to 5, 2016; and $6,792.40 for the period March 6
to June 25, 2016. It totaled these amounts to equal $64,446.38 in compensation received by
appellant. OWCP calculated that she was entitled to 1,019.47 hours of compensation for the period
July 15, 2013 to June 25, 2016, as she only worked six hours a day and was entitled to
compensation for the remaining two hours a day, totaling $16,781.55. It deducted appellant’s
$16,781.55 entitlement from the $64,446.38 of compensation paid to determine that a $47,664.83
overpayment of compensation had been made. OWCP informed appellant of her appeal rights and
instructed her to complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting documentation, including tax returns, bank account statements, pay slips, and
applicable financial records to support her income and expenses within 30 days.
On February 21, 2018 OWCP received appellant’s January 27, 2018 request for a
telephonic hearing before a representative of OWCP’s Branch of Hearings and Review on the
issues of fault and possible waiver. Appellant indicated that she had notified OWCP of her
employment and had done everything required of her. With the request she provided a partially
completed Form OWCP-20, noting monthly household expenses of $1,758.00 for mortgage,
$300.00 for food, $200.00 for clothing, $400.00 for utilities, and $550.00 for a car payment.
Appellant further noted that she lived with her minor daughter and had no sources of income other
than her federal salary. During the hearing, held on July 9, 2018, she contended that she had not
knowingly accepted payments to which she was not entitled.
By decision dated August 29, 2018, OWCP finalized the determination that appellant
received an overpayment of compensation in the amount of $47,664.83 for the period July 15,
2013 through June 25, 2016, because she continued to receive compensation benefits based on the
March 15, 2013 LWEC determination, predicated on her actual earnings as a home health aide,
after she returned to work at the employing establishment. It found that she was without fault in
creation of the overpayment. OWCP directed appellant to repay the $47,664.83 in the amount of
$450.00 a month, based on reported monthly expenses of $4,269.00 and monthly income of
$4,790.00, a difference of $521.00 a month. It noted that she had not submitted sufficient financial
information for consideration of waiver of recovery of the overpayment. OWCP found that
recovery of the overpayment would not be against good conscience as appellant did not relinquish
a valuable right or change her position for the worse in reliance on her compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of

3

duty.3 Section 8129(a) of FECA provides, in pertinent part, that when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall be
made under regulations prescribed by the Secretary of Labor by decreasing later payments to which
an individual is entitled.4
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.5 OWCP’s regulations provide in pertinent part: Compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.6 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the
same period.7 OWCP’s procedures also provide that an overpayment in compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation.8
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.9 These
procedures note that, if the claimant is determined to be without fault, a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of without fault must be clearly stated. A preliminary overpayment determination informs
the claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues
of: (a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment. Along
with the preliminary overpayment determination, OWCP should provide a clearly written
statement explaining how the overpayment was created.10

3

5 U.S.C. § 8102.

4

Id. at § 8129(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.

7

See J.L., Docket No. 18-1266 (issued February 15, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018);
M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 59 ECAB 350, 352-53 (2008).
8

See J.S., Docket No. 17-0260 (issued December 28, 2017); B.H., Docket No. 09-0292 (issued September 1, 2009);
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1
(September 2018).
9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(2) (May 2004).
10

Id.; see also L.P., Docket No. 18-0095 (issued March 12, 2020).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through
June 25, 2016 as she received compensation based on an LWEC determination after returning to
work.
An overpayment of compensation was identified when on September 19, 2016, OWCP
received an e-mail from the employing establishment which confirmed that appellant had returned
to duty on July 15, 2013. It was not until January 19, 2018, however, that OWCP issued a
preliminary determination finding an overpayment in the amount of $47,664.83 had been created
for the period July 15, 2013 through June 25, 2016.
By decision dated August 29, 2018, OWCP’s hearing representative finalized the
preliminary overpayment determination and found appellant without fault in the creation of the
$47,664.83 overpayment for the period July 15, 2013 through June 25, 2016, because she
continued to receive compensation benefits based on the March 15, 2013 LWEC determination,
predicated on her actual earnings as a home health aide, after she returned to work at the employing
establishment. The hearing representative found that she was without fault in creation of the
overpayment. OWCP directed appellant to repay the $47,664.83 in the amount of $450.00 per
month.
The Board finds that OWCP failed to follow its procedures in issuing the January 19, 2018
overpayment decision. As noted, OWCP’s procedures provide that a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified.11 In this case, OWCP first identified the overpayment of compensation
on September 19, 2016, but it did not, however, issue a preliminary notice regarding the
overpayment until January 19, 2018, more than 30 days later.
The Board thus finds that OWCP failed to follow its established procedures in determining
that appellant received an overpayment of compensation in the amount of $47,664.83 for the
period July 15, 2013 through June 25, 2016.12
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through
June 25, 2016.

11

See id.

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 23, 2021
Washington, DC

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

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

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

6


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1493
Issued: February 7, 2012

Case Submitted on the Record

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

JURISDICTION
On June 9, 2011 appellant, through her attorney, filed a timely appeal from the
January 25, 2011 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 her burden of proof to establish that she sustained an
injury in the performance of duty causally related to factors of her federal employment.
On appeal, appellant’s attorney contends that the reports of appellant’s treating physician
established a causal relationship between appellant’s back condition and her employment and
that the second opinion is deficient and speculative. He argued that at a minimum there was a
conflict in the medical evidence sufficient to require remand for further medical development.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 26, 2009 appellant, then a 48-year-old city letter carrier, filed an occupational
disease claim alleging that she suffered from an injury to her low back and right leg as a result of
carrying mail for approximately 11 years. She indicated that she had a prior injury to her left
ankle on October 14, 2005 and that, following that injury, she was able to return to carrying mail.
However, appellant contended that, as a result of the physical requirements of that job, which
included walking for long periods of time and lifting and carrying and twisting at the waist, she
developed a low back and right leg condition.
Dr. Brian T. Brislin, appellant’s treating Board-certified orthopedic surgeon, submitted
progress notes commencing January 6, 2009. In his December 11, 2008 progress note, he noted
that appellant’s magnetic resonance imaging (MRI) scan demonstrated broad-based disc
protrusion without stenosis. In an April 22, 2009 report, Dr. Brislin questioned whether the left
lower extremity impairment in her ankle is the source of her back pain. He stated, “Certainly
altered gait pattern as well as alterations in lifting and strenuous activity with [appellant’s] job
could be a possible contributor to low back pain. Certainly, these may be a possible contributor
to the disc protrusions [as] noted on the old MRI [scan] from [November 2008].”
In a June 10, 2009 report, Dr. Gene Salkind, a Board-certified neurosurgeon, noted his
impression that appellant was troubled by lumbar spondylosis and stenosis. In an August 6,
2009 report, he stated that she complained of low back pain, right buttock and right lower
extremity pain as well as severe tailbone pain and numbness in her low back. Dr. Salkind noted
that an MRI scan of the lumbar spine dated November 14, 2008 showed evidence of
degenerative disc disease with disc desiccation at L3-4 and L5-S1 and that there appeared to be
lumbar spondylosis and stenosis at L3-4 and L4-5. He noted that he had initiated a program of
physical therapy three times weekly. Dr. Salkind opined that within a reasonable degree of
medical certainty appellant suffers from lumbar spondylosis and stenosis which is a direct result
of the repetitive movements of her job, a mail carrier.
By decision dated August 18, 2009, OWCP denied appellant’s claim as it found that the
medical evidence failed to establish that she sustained a medical condition related to the accepted
incident.
On August 20, 2009 appellant, through counsel, filed a request for a telephone hearing.
In an August 25, 2009 report, Dr. Brislin summarized his treatment of appellant. He
noted that she was seen in his office on January 6, 2009 for an injury she sustained while
working for the employing establishment. Dr. Brislin noted that appellant was performing her
duties as a mail carrier, which included walking, driving and carrying of a mailbag. He noted
that she began to have pain in the low back pressing down the right leg, starting in the area of the
buttock and radiating down the entire leg which he diagnosed as lumbar radiculopathy.
Dr. Brislin noted that a subsequent MRI scan evaluation demonstrated a broad-based disc
protrusion at L3-4 as well as a mild broad-based disc protrusion at L4-5. He noted that appellant
had been seen for epidural steroid injections and has also been seen by a neurosurgeon.
Dr. Brislin indicated that her current diagnoses included low back pain and discogenic back pain.
He opined that the exacerbation of symptoms on January 3, 2009 were a result of her
2

employment. Dr. Brislin also stated that appellant’s treatment to date has been appropriated and
that she will continue with physical therapy.
In a report dated June 10, 2009, Dr. Salkind stated that he first saw appellant for a
neurosurgical consultation on June 10, 2009. He noted that in the fall of 2008 she started to
complain of right buttock and right lower extremity pain. Dr. Salkind noted that on January 3,
2009 appellant developed severe tailbone pain such that she had to leave work and went to the
emergency room where she was given a morphine injection and prescribed Percocet. He
discussed her treatment and physical therapy with Dr. Brislin. Dr. Salkind noted that presently
appellant complained of low back pain that radiated through the right lower extremity to the
ankle. He opined that she had lumbar spondylosis and stenosis. In the October 4, 2009 report,
Dr. Salkind thoroughly discussed the duties of appellant’s employment as she described them to
him. Appellant returned to work in September 2004 doing exclusively clerical work, but in
November 2004 she started to case mail, load the truck, hit the street and was doing driving and
mail delivery. By January 2005, she was casing mail for one to two hours, loading her truck and
ultimately hit the street where she would walk and carry her bag for two to three hours a day. On
March 25, 2007 appellant had a bid route that had more limited duties, but that in August 2007
she lost her bid route and went from casing four shelves to five shelves and had to step on tip
toes to reach the top shelf. Although she requested a platform, Dr. Salkind noted that she did not
receive it until January 2008. Appellant was walking two to three and a half hours a day with her
mailbag and would tire easily. She would drag her leg, favoring and putting all her weight on
her right side. Pain increased with walking on a daily basis. Appellant was off work for stress
for about four weeks in October 2007, but returned to work in November 2007 and was casing
for one to two hours, pulling down the route, loading her truck and ultimately hitting the street.
In November 2008, she received a new bid route, which involved one-hour and twenty minutes
of business helping out with heavy mail and walking for one hour with her heavy mailbag.
Dr. Salkind concluded that based on this history appellant’s back condition was aggravated by
her work duties. He opined that, although she clearly had preexisting asymptomatic lumbar
degenerative disc disease and stenosis, it was aggravated by her repetitive lifting, carrying,
standing on her tiptoes and sorting mail. Dr. Salkind believed that appellant was disabled from
January 3, 2009 to the present time and he recommended surgical intervention.
In a November 4, 2009 report, Dr. Brislin reviewed his treatment of appellant and opined
that the exacerbation of her symptoms on January 3, 2009 was a result of her employment. He
opined that, although she had a preexisting condition, the symptoms she reported on January 3,
2009 do represent a clear exacerbation of her current symptoms and that her clear exacerabation
of symptoms happened in the course of employment.
At the hearing held on December 18, 2009, counsel stated that the issue was whether
appellant’s carrier duties caused or aggravated the low back problem. He noted that she believed
her prior ankle injury changed the way she walked and caused irritation to her low back.
Counsel contended that the medical evidence submitted after OWCP’s decision demonstrated the
causal relationship between appellant’s duties and her back injury. He asked the hearing
representative to reverse OWCP’s decision or at a minimum, remand for additional development.
On November 20, 2009 Dr. Salkind performed a bilateral decompressive laminectomy
with bilateral nerve root decompression.
3

By decision dated February 19, 2010, OWCP’s hearing representative found that the
opinion of Dr. Salkind was sufficient to warrant further development of the evidence and
remanded the case for referral to a second opinion physician.
On remand, OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a May 27, 2010 report, Dr. Smith
indicated that he needed further information and reports in order to reach an informed opinion.
OWCP provided him with the requested documents. In a July 26, 2010 report, Dr. Smith stated
that, after reviewing the imaging studies, there does not appear to be any evidence of any
structural insult to appellant’s spine that would have linked her degenerative disease causing
stenosis to her duties as a city mail carrier. He opined that her spinal condition was obviously
degenerative in nature and nonindustrial and was not structurally aggravated by her work
activities or her claim that an altered gait caused some problems in her spine that required
surgery. Therefore, Dr. Smith concluded that the work appellant missed commencing
January 2009 and the operation performed by Dr. Salkind in November 2009 was not related to
her work activities.
By decision dated August 6, 2010, OWCP denied appellant’s claim for the reason that the
medical evidence did not demonstrate that her claimed medical condition was related to the
established work event.
On August 11, 2010 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on December 7, 2010, counsel argued that there was at least
prima facie proof of the work injury. He also contended that there was no medical rationale for
the opinions of the second opinion physician, Dr. Smith.
By decision dated January 25, 2011, OWCP’s hearing representative affirmed the
August 6, 2010 decision finding Dr. Smith’s report sufficiently rationalized to represent the
weight of the evidence.
LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA4 and that she filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.6 These are the essential elements of each and every
2

Id.

3

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

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
To establish a causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.9 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 their relationship between the diagnosed condition and
the specific employment factors identified by the claimant. This medical opinion must include an
accurate history of the employee’s employment injury and must explain how the condition is
related to the injury. The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.10
Section 8123 of FECA11 provides that if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall appoint a
third physician who shall make an examination.12 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.13
ANALYSIS
OWCP denied appellant’s claim because it found that she failed to establish that she
suffered from a work-related injury. However, the Board finds that this case must be remanded
7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

11

Supra note 5.

12

Id. at § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000); Leonard M. Burger, 51 ECAB 369
(2000); Shirley L. Steib, 46 ECAB 39 (1994).
13

20 C.F.R. § 10.321.

5

for further development of the medical evidence due to an unresolved conflict in medical opinion
evidence.
Appellant’s physicians opined that appellant’s back injury was related to her federal
employment. In his April 22, 2009 report, Dr. Brislin indicated that her altered gait pattern as
well as alterations in lifting and strenuous activity with her job could be a possible contributor to
her back pain. He clarified his opinion in an August 25, 2009 report, wherein he listed
appellant’s work duties, and noted that her diagnoses of low back pain and discogenic back pain
was exacerbated by her employment. In a November 4, 2009 report, Dr. Brislin stated that,
although she had a preexisting condition, the symptoms she reported on January 3, 2009 do
represent a clear exacerbation of her current symptoms and that her clear exacerbation of
symptoms happened in the course of her employment. Appellant’s claim received greater
support from the opinions of Dr. Salkind, who went into a detailed description of appellant’s
duties as a city letter carrier, detailing the amount of walking and lifting required and the
problems she encountered in casing mail. Dr. Salkind opined that, although she had preexisting
asymptomatic lumbar degenerative disc disease and stenosis, it was aggravated by her repetitive
lifting, carrying, standing on her tip toes and sorting mail. His opinion is based upon his multiple
examinations of appellant and his consideration of the duties of her employment.
However, the second opinion physician, Dr. Smith, stated that, after reviewing the
imaging studies, there did not appear to be any evidence of any structural insult to appellant’s
spine that would have linked her degenerative disease causing stenosis to her duties as a city mail
carrier. He opined that her spinal condition was degenerative in nature and not structurally
aggravated by her work activities or an altered gait. Dr. Smith concluded, therefore, that
appellant’s claimed disability was not employment related.
The Board finds that there is an unresolved conflict in the medical evidence regarding
whether appellant’s work aggravated her back condition requiring a referral to an impartial
medical specialist, pursuant to 5 U.S.C. § 8123(a). Therefore, the case will be remanded to
OWCP to refer appellant to a physician in the appropriate field of medicine to resolve the
conflict. Following such further development as OWCP deems necessary, it should issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical evidence.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2011 is set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: February 7, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-691
Issued: September 17, 2009

Case Submitted on the Record

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

JURISDICTION
On January 13, 2009 appellant filed a timely appeal from a November 7, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty causally related to her employment.
FACTUAL HISTORY
On August 12, 2008 appellant, a 51-year-old automation clerk, filed an occupational
disease claim (Form CA-2) in which she alleged that lifting trays as well as pushing and pulling
heavy equipment at the employing establishment caused a disc protrusion at L5-S1, severe left
foraminal stenosis and bilateral distal median neuropathy. In a note dated July 30, 2008, she
reported that in 2004 she saw a physician who diagnosed her with bursitis in both hips.
Appellant alleged that her bursitis was aggravated by standing on concrete floors for eight hours

per day as well as lifting, reaching, bending, twisting and stretching. Since this date, she has
been on light duty, assigned to manual operation sorting.
Appellant submitted four reports dated April 15, 2006, July 11, 2007, February 6 and
April 16, 2008, signed by Dr. Chandrasekharn Nair, a Board-certified neurosurgeon, releasing
appellant to light duty with restrictions. These reports noted diagnoses of lumbar disc herniation,
stenosis and lumbar disc degeneration.
Appellant submitted a report dated May 20, 2008, signed by Dr. Margit Bleecker, a
Board-certified neurologist, who presented a review of appellant’s medical history and findings
on examination. Dr. Bleecker noted that a magnetic resonance imaging (MRI) scan examination
from 2005 revealed L5-S1 disc protrusion; she also diagnosed appellant with chronic back pain.
She opined that appellant’s back pain was aggravated by standing, twisting, pushing/pulling and
lifting in awkward positions. Dr. Bleecker opined that repeated grasping and holding bundles of
mail with her hands caused bilateral carpal tunnel syndrome that required conservative
management.
Appellant submitted an April 6, 2005 report, signed by Dr. Nafi Aygun, a Board-certified
diagnostic radiologist, who reported that sagittal and axial T1 and T2 weighted images of the
lumbar spine revealed L5-S1 disc protrusion and severe left neural foraminal stenosis.
By decision dated November 7, 2008, the Office accepted that appellant’s federal
employment involved processing of mail using automated mail processing equipment or manual
methods of sorting and distribution; however, it denied appellant’s claim because the evidence of
record did not demonstrate that her alleged medical condition was related to these accepted work
activities.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of the claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was filed within
the applicable time limitation, that an injury was sustained while in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 These are essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
1

5 U.S.C. §§ 8101-8193.

2

C.S., 60 ECAB __ (Docket No. 08-1585, issued March 3, 2009).

3

S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

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condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS
The Board finds that appellant has not met her burden to establish that she sustained an
injury in the performance of duty causally related to her employment. The Office accepted that
appellant’s federal employment involved processing of mail using automated mail processing
equipment or manual methods of sorting and distribution. Appellant’s burden was to
demonstrate, through production of probative rationalized medical evidence, that these alleged
conditions were causally related to the accepted employment factors.
The relevant medical evidence of record consisted of reports from Drs. Aygun, Bleecker,
and Nair. These reports are of diminished probative value as none of these reports furnished a
rationalized opinion concerning the causal relationship between appellant’s alleged conditions
and the accepted employment factors. The Board notes initially that while Dr. Nair and
Dr. Aygun offered diagnoses of appellant’s lumbar condition as lumbar disc herniation, stenosis,
and disc degeneration, neither Dr. Nair nor Dr. Aygun’s reports offered any opinion regarding
causal relationship.
Furthermore, Dr. Bleecker noted the L5-S1 disc protrusion found on appellant’s 2005
MRI scan and noted back pain as well as bilateral carpel tunnel syndrome. She did opine that
appellant’s back pain was aggravated by standing, twisting, pushing/pulling and lifting in
awkward positions, and that repeated grasping and holding bundles of mail with her hands
caused bilateral carpal tunnel syndrome. Dr. Bleecker failed to provide any medical explanation
or rationale causally relating the diagnosed conditions to the alleged work activities. The Board
has long held that work activities may produce pain or discomfort revelatory of an underlying
condition but any such pain does not raise an inference of causal relationship.6

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

Gary M. DeLeo, 56 ECAB 656 (2005).

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The Board has consistently held that medical reports lacking a rationale on causal
relationship are of diminished probative value.7 As none of these reports provided such an
opinion, these reports are of diminished probative value and are insufficient to satisfy appellant’s
burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that his condition was aggravated by her employment is sufficient to
establish causal relationship.8
As there was no rationalized medical evidence of record establishing that appellant’s
alleged conditions were causally related to the accepted employment factors, the Board finds that
appellant has not met her burden of proof to establish that she sustained an injury in the
performance of duty causally related to her employment.9
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty causally related to her employment

7

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

9

The record reflects that appellant submitted information concerning bariatric surgery, an article detailing a study
on the relationship between nicotine use and disc degeneration as well as an article concerning lumbar degenerative
disc conditions and another which concerned lumbar spine conditions in obese patients. The Board has held that
articles such as newspaper clippings, medical texts and excerpts from publications are of no evidentiary value in
establishing the causal relationship between a claimed condition and a claimant’s federal employment as such
materials are of general application and are not determinative of whether the specific condition claimed is related to
particular employment factors or incidents. Richard Yadron, 57 ECAB 207 (2005); Eugene Butler, 36 ECAB
393 (1984). As such, these articles are of no evidentiary value in establishing a causal relationship between
appellant’s claimed condition and her federal employment as they are not relevant to the underlying medical issue in
appellant’s claim and therefore do not constitute a basis for reopening this claim for merit review.

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ORDER
IT IS HEREBY ORDERED THAT the November 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1764
Issued: December 18, 2013

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 July 22, 2013 appellant, through her representative, filed a timely appeal from the
January 24, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her reconsideration request as untimely. 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 this nonmerit decision. Since more than 180 days has elapsed between the last merit
decision on December 21, 2011 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 1, 2010 appellant, a 39-year-old sales and service/distribution associate, filed
a traumatic injury claim alleging an emotional condition in the performance of duty on
September 1, 2010. On November 19, 2010 she filed an occupational disease claim alleging a
hostile environment.
In a May 27, 2011 decision, OWCP denied appellant’s emotional condition claim.
Appellant claimed that management mistreated her and the employing establishment denied the
allegations. OWCP advised that appellant must establish that management’s actions were
erroneous. Further, if she wished to perfect her claim, appellant should submit a medical
narrative with a rationalized opinion of how activity at work caused her medical condition.
In a December 21, 2011 decision, an OWCP hearing representative modified the prior
findings and affirmed the May 27, 2011 decision. He found that appellant had establish two
compensable factors of employment, one pertaining to a “mysterious” package on August 31,
2010, which required screening or vetting by the Inspection Service, the other pertaining to not
having access to the office safe for a few days, which affected regularly assigned duty. The
hearing representative found that the medical reports of record did not establish a causal
relationship between the two factors of employment and her diagnosed emotional condition. He
found that reports from a licensed clinical social worker were not probative, and reports from
physicians who were not psychiatrists or licensed clinical psychologists were insufficient to
establish causal relationship.
OWCP received appellant’s request for reconsideration dated December 20, 2012 on
December 31, 2012. Appellant’s representative argued that reconsideration should be granted, as
appellant provided new and relevant evidence and argument to establish causal relationship
between the activities on August 31 and September 1, 2010 and the injuries of post-traumatic
stress syndrome, emotional distress and reactive depression.
In an April 24, 2012 report, Dr. Anca Bereanu, a clinical neurologist,2 advised that she
performed a neuropsychiatric evaluation of appellant due to an incident that took place at work
on August 31, 2010. She related the events of August 31, 2010, when appellant was unable to
open the mail safe, which contained most of her tools for the day and the keys to access the
mailbox. Dr. Bereanu also related how management treated appellant the following day. She
described her findings and diagnosed post-traumatic stress syndrome with depressive reaction as
a result of work circumstances and emotional distress at work; cumulative trauma disorder
culminating with the August 31, 2010 emotional distress secondary to unrecognized individual
contribution at work; and reactive depression compounded by chronic sleep disorder and anxiety.
Dr. Bereanu then addressed the issue of causal relationship. She found that, within a
reasonable degree of medical certainty, the diagnosed conditions stemmed from a cumulative
trauma emotional disorder that appellant sustained at wok culminating with the date of injury of
August 31 and September 1, 2010. I find a direct relationship and causal relationship between
her work circumstances including the date of incident, August 31, 2010 and the claimant’s
2

The Board is unable to determine whether Dr. Bereanu is Board-certified.

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disability from work.” Dr. Bereanu explained that the diagnoses were a result of appellant’s
physical and neurological examination, a review of pertinent medical records provided, a very
long intake and detailed history from appellant and from the assessment of her self-rating
depression score.
In a decision dated January 24, 2013, OWCP denied appellant’s reconsideration request.
It found her request to be untimely and did not present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be received by OWCP within one year of the date of the
OWCP decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
The most recent merit decision in appellant’s case is OWCP’s hearing representative’s
December 21, 2011 decision denying appellant’s emotional condition claim. Appellant had one
year or until December 21, 2012 to deliver a reconsideration request to OWCP. She and her
representative dated the request on December 20, 2012, but OWCP did not receive it until
December 31, 2012. The request was therefore untimely.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011).

6

Id. at Chapter 2.1602.5.b.

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Nonetheless, appellant may obtain a merit review of her case by presenting clear
evidence of error on the part of OWCP in its December 21, 2011 decision. This is intended as a
difficult standard. The application must establish, on its face, that OWCP’s December 21, 2011
decision was erroneous.
The Board finds that appellant’s reconsideration request does not show, on its face, that
the OWCP hearing representative’s December 21, 2011 decision was erroneous. Appellant
submitted additional evidence to support her claim. The Board addressed a compensable factor
of employment and that touched on the issue of causal relationship. The author of the April 24,
2012 report, Dr. Bereanu, is a neurologist. The hearing representative explained, however, that
causal relationship must be addressed by a psychiatrist or licensed clinical psychologist.
Dr. Bereanu indicated that she performed a neuropsychiatric evaluation; nonetheless, her
qualifications remain unclear for addressing appellant’s emotional condition.
Dr. Bereanu offered no medical rationale to support her opinion. She made clear that she
believed appellant’s diagnoses stemmed from the stressful condition that she encountered at
during her work at the employing establishment, culminating with the incident on August 31,
2010 pertaining to the unopened safe. Dr. Bereanu did not explain how, from a psychiatric
perspective, not having access to the office safe for a few days caused or contributed to the
diagnosed conditions. It is important in this regard not to mingle compensable and
noncompensable factors. Causal relationship must be addressed in regard to a factor of
employment established as compensable. Dr. Bereanu considered the August 31, 2010 incident
just the culmination of cumulative circumstances at work.
The Board finds that Dr. Bereanu’s opinion does not show clear evidence error on the
part of OWCP in its December 21, 2011 decision. The standard for obtaining a merit review
here is a difficult one, particularly when the issue depends on a physician’s exercise of medical
judgment and adherence to evidentiary standards. As Dr. Bereanu’s opinion does not, on its
face, cure the deficiency found in appellant’s claim, the Board finds that OWCP properly denied
appellant’s reconsideration request. The Board will, therefore, affirm OWCP’s January 24, 2013
nonmerit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.

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ORDER
IT IS HEREBY ORDERED THAT the January 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2013
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

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