United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-1279
Issued: March 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2011 appellant filed a timely appeal from a March 11, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) concerning a schedule award.
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.2
ISSUE
The issue is whether appellant established that he sustained a ratable bilateral upper
extremity impairment entitling him to schedule awards pursuant to 5 U.S.C. § 8107.
1
2

5 U.S.C. § 8101 et seq.

By decision dated July 18, 2011, OWCP found that appellant was entitled to schedule awards for two percent
impairment of each lower extremity. The Board and OWCP may not have concurrent jurisdiction over the same
issue in a case. Consequently, any decision by OWCP on an issue pending before the Board is null and void.
Douglas E. Billings, 41 ECAB 880 (1990). As OWCP issued the July 18, 2011 decision after appellant’s appeal to
the Board on May 2, 2011 and as it is on the same issue pending before the Board, i.e., entitlement to a schedule
award, it is null and void. See 20 C.F.R. § 501.2(c)(2).

FACTUAL HISTORY
On July 8, 2008 appellant, then a 54-year-old mail handler – equipment operator, filed an
occupational disease claim alleging that on February 1, 2006 he first realized that his left hand
pain was employment related. OWCP accepted the claim for bilateral carpal tunnel syndrome
and left ulnar lesion and authorized left carpal tunnel surgery, which took place on
May 20, 2009.3
On December 27, 20104 appellant filed a claim for a schedule award.
By decision dated February 15, 2011, OWCP denied appellant’s request for a schedule
award as there was no medical evidence to establish that he sustained a permanent impairment.
On February 25, 2011 appellant requested reconsideration and submitted evidence in
support of his request.
On July 9 and November 3, 2009 and January 19, 2010, Dr. Richard S. Levy, a treating
Board-certified orthopedic surgeon, diagnosed right wrist carpal tunnel syndrome and left wrist
carpal tunnel release in the July 9, 2009 report. Diagnoses included bilateral carpal tunnel
release. A physical examination on July 9, 2010 revealed negative Phalen’s and Tinel’s signs in
the left wrist and positive Phalen’s and Tinel’s sign in the right wrist. The physical findings
from the November 3, 2009 and January 19, 2010 examinations revealed no motor or sensory
deficits, good strength and range of motion in the left wrist. Right wrist mild atrophy was also
noted as an orthopedic finding in the January 19, 2010 examination.
By decision dated March 11, 2011, OWCP denied modification of the February 15, 2011
decision. It found that appellant failed to submit any medical evidence that established
permanent impairment of either arm.5
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
3

OWCP noted that it had accepted the conditions of right shoulder rotator cuff and right shoulder sprain as the
result of a May 3, 2005 employment injury under OWCP File No. xxxxxx750.
4

Appellant’s supervisor signed and submitted the form to OWCP on January 5, 2011.

5

The Board notes that, following the March 11, 2011 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009).
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

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and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.9
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and left ulnar
lesion. Appellant filed a claim for a schedule award on December 27, 2010. The issue to be
resolved is whether he suffered any permanent impairment. The Board finds that appellant failed
to provide any probative evidence supporting entitlement to schedule award for his left upper
extremity as a result of his accepted employment injury.
OWCP received reports dated July 9 and November 3, 2009 and January 19, 2010 from
Dr. Levy which showed a negative Phalen’s and Tinel’s signs, no motor or sensory deficits, good
strength and range of motion for the left wrist. They showed mild atrophy and a positive
Phalen’s and Tinel’s sign in the right wrist. Dr. Levy did not address the issue of employmentrelated impairment in any of his reports. The Board finds, therefore, that the reports of Dr. Levy
are of diminished probative value and insufficient to establish appellant’s entitlement to a
schedule award.
Appellant has not submitted sufficient medical evidence to establish that, as a result of
his employment injury, he sustained any permanent impairment to a scheduled member or
function such that he would be entitled to a schedule award. OWCP procedures and the Board
precedent require that the record contain a medical report with a detailed description of the
impairment.10 This description must be in sufficient detail so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations.11 Appellant has the burden of proof to submit the medical evidence necessary to

8

Id.

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

See Peter C. Belkind, 56 ECAB 580 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(c)(1) (January 2010).
11

See Patricia J. Penney-Guzman, 55 ECAB 757 (2004); A.L., Docket No. 08-1730 (issued March 16, 2009).

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support his claim of permanent impairment of a scheduled member or function of the body.12 As
such evidence has not been submitted OWCP properly denied his request for a schedule award.13
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.
CONCLUSION
The Board finds that appellant failed to establish that he sustained any upper extremity
impairment warranting a schedule award pursuant to 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2011 is affirmed.
Issued: March 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See D.H., 58 ECAB 358 (2007); Tammy L. Meehan, 53 ECAB 229 (2001); see also Nathaniel Milton, 37
ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.
13

The Board notes that OWCP did not forward the case to the district medical adviser for review. OWCP’s
procedure manual provides that the claims examiner will ask the district medical adviser to evaluate cases when the
case appears to be in posture for a schedule award determination. As the matter was deemed not to be in posture for
a schedule award determination, OWCP was not required to seek review by the district medical adviser. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZEN & IMMIGRATION SERVICES,
Lincoln, NE, Employer
__________________________________________

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

Docket No. 09-1953
Issued: July 8, 2010

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant filed a timely appeal from the July 14, 2009 merit decision of
the Office of Workers’ Compensation Programs affirming the denial of his claim for a traumatic
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left knee injury on January 12, 2005.
FACTUAL HISTORY
On December 18, 2006 appellant, then a 45-year-old center adjudication officer, filed a
traumatic injury claim alleging a left knee injury at 8:30 a.m. on January 12, 2005 when she
slipped on ice in the employing establishment parking lot. She noted that the lot where she

parked was on an incline. Appellant did not stop work. Her supervisor, Raquel Trevizo, noted
on the CA-1 that notice was received on January 12, 2005.
Appellant submitted a December 18, 2006 statement and noted that she fell in her
employing establishment parking lot on January 12, 2005 at approximately 7:30 a.m. She
indicated that Scott Arfman, a security guard, was in the back parking lot when she fell and
would file a Form 3155 incident report.
By letter dated January 4, 2007, the Office requested additional factual and medical
information as the evidence submitted was insufficient to establish an injury, as alleged.
In a February 5, 2007 decision, the Office denied appellant’s claim finding that the
evidence was insufficient to establish that she experienced the incident at the time, place and in
the manner alleged.
The employer submitted a January 31, 2007 statement from Caroline Pratt, an employing
establishment field office director. On January 12, 2005 appellant did not inform her that she fell
or that she had submitted a CA-1. Ms. Pratt further noted that neither the security guards nor
appellant’s supervisor were aware that appellant fell. In a January 31, 2007 questionnaire,
Ms. Pratt noted that the employing establishment was unaware that appellant sustained an injury
that day and did not receive an incident report from Mr. Arfman. She noted that appellant’s
claim indicated that she fell at 7:30 a.m.; however, appellant’s January 12, 2005 leave slip
requested leave from 7:30 a.m. to 8:30 a.m. due to icy road conditions. The employing
establishment submitted a March 12, 2007 statement from Bob Hennings, a program analyst,
who arrived at the employer’s parking lot at 7:35 a.m. on January 12, 2005. Mr. Hennings
accompanied Mr. Arfman to appellant’s car offering to let her park in the garage. He noted that
appellant never advised him that she fell in the lot and he did not see appellant exit her vehicle in
the parking lot. The employing establishment submitted a March 12, 2007 memorandum from
Kenneth Zarybnicky, appellant’s supervisor, who noted that he never received a CA-1 from
appellant regarding the January 12, 2005 incident and she did not inform him that she fell on that
date. Mr. Zarybnicky noted that he first learned of the incident on December 14, 2006.
On February 8, 2007 appellant requested reconsideration and asserted that she placed the
CA-1 documenting the January 12, 2005 injury on her supervisor’s desk following the incident.
She advised that Ms. Pratt had her sign for the garage door opener on January 12, 2005 and was
therefore aware that she had fallen. Appellant submitted a January 12, 2005 leave slip which
requested leave from 7:30 a.m. to 8:30 a.m. and noted “Icy Road conditions -- no place to park in
parking lot due to asylum applicants.” She submitted the December 14, 2006 deposition
transcript of Frank Heinauer who noted he may have been the person to sign appellant’s CA-1
form but had only a vague recollection and was not aware of the status of her claim. Appellant
submitted e-mails to Christopher Meidt, an agency representative, who advised that he could not
locate the incident report. She submitted a January 22, 2007 attending physician’s report from
Dr. Todd Sekundiak, a Board-certified orthopedic surgeon, who noted that appellant fell in the
parking lot at work on January 12, 2005. Dr. Sekundiak diagnosed tendinitis and ligamentous
strain.
On April 11, 2007 the Office denied modification of the February 5, 2007 decision.

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On June 13, 2007 appellant requested reconsideration. She asserted that she informed
Ms. Pratt and Mr. Zarybnicky that she fell on January 12, 2005 and that management was
covering up the fact that the parking lot was not properly cleaned or maintained. In a January 13,
2005 report, Dr. Sekundiak treated appellant in follow-up from her left knee compartmental
arthroplasty. He noted that appellant was progressing well postoperatively with postoperative
diffuse pain. Dr. Sekundiak noted x-rays revealed no evidence of wear, loosening or subsidence.
In a report dated May 16, 2007, appellant reported exacerbating her left knee pain after a fall on
January 12, 2005. Dr. Sekundiak diagnosed tendinitis and degeneration in her remaining
compartment. Appellant submitted several statements from coworkers including Douglas Fritz,
Karin Stork and Joshua Point who noted that appellant reported falling at work but they were not
eyewitnesses and were unsure of the date of the incident.
The employing establishment submitted an August 2, 2007 statement from
Mr. Zarybnicky, who advised that he was appellant’s first line supervisor from October 21, 2001
to October 21, 2005 and never received a CA-1 regarding the January 12, 2005 incident and
appellant never informed him that she fell at work. The employing establishment submitted
several statements from other coworkers who were not aware that she fell on ice at work or
sustained a work-related injury. In an August 3, 2007 memorandum, Mr. Heinauer stated that at
some point in time appellant fell or almost fell in the parking lot but he had no recollection of
whether she submitted a claim form.
By decision dated August 10, 2007, the Office denied modification of the prior decision.
On June 14, 2008 appellant requested reconsideration and submitted statements from
coworkers, Mr. Fritz, Ms. Stork and Cassandra A. Bullard, who indicated that appellant reported
falling in the employing establishment parking lot. Also submitted was a September 14, 2007
statement from Mr. Arfman who indicated that appellant informed him that she fell in the back
parking lot; however, he was unsure of the exact date but believed it was in January 2005.
Appellant submitted a handicapped placard, whistleblower information, unfair labor practices
article, weather reports from January 10 to 13, 2005, a picture of an iced parking lot, an award
certificate, an appraisal and a copy of a grievance dated August 22, 2007.
The employing establishment submitted statements dated July 11 and 14, 2008 from
Ms. Pratt who noted none of appellant’s witness statements noted a date of injury or indicated
that they actually witnessed the alleged incident. Also submitted was a July 2, 2008 electronic
mail from Mr. Meidt who noted that he had no direct knowledge that appellant fell and injured
her knee on the employing establishment parking lot and he was unable to locate the incident
report.
In a decision dated September 12, 2008, the Office denied modification of the prior
decision.
On April 11, 2009 appellant requested reconsideration. She submitted additional
statements and materials previously of record. Appellant submitted a January 19, 2009 report
from Dr. Sekundiak who saw her in follow-up after her left knee arthroplasty revision of
September 10, 2008. Dr. Sekundiak noted discussions with appellant regarding an injury
sustained at work in January 2005 which was not documented but confirmed by the physician.

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In an April 11, 2009 statement, appellant asserted that she underwent a second knee replacement
on September 10, 2008, which was determined to be related to the January 12, 2005 fall.
In a decision dated July 14, 2009, the Office denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.”1 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 In some traumatic injury cases this
component can be established by an employee’s uncontroverted statement on the Form CA-1.4
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and her subsequent course of
action.5 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.6
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.7 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great

1

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

2

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

3

Elaine Pendleton, supra note 1.

4

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

5

Rex A. Lenk, 35 ECAB 253, 255 (1983).

6

Id. at 255-56.

7

Dorothy M. Kelsey, 32 ECAB 998 (1981).

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probative value and will stand unless refuted by strong or persuasive evidence,8 an employee has
not met this burden when there are inconsistencies in the evidence such as to cast serious doubt
upon the validity of the claim.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence. 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.10
ANALYSIS
In the present case, appellant filed a claim on December 18, 2006 alleging that she was
injured when she fell on ice at the employing establishment on January 12, 2005. However, she
did not stop work at the time of the alleged injury; she did not immediately seek medical
treatment for the injury and she waited nearly two years to file her claim.
Appellant contended that she did not delay in filing the claim rather she completed a
CA-1 form and placed it on her supervisor’s desk. She stated that Mr. Arfman, the security
guard, witnessed the incident and filed a Form 3155 documenting the fall. However, the record
does not establish appellant’s assertions. Ms. Pratt noted that the employing establishment was
unaware that appellant sustained any injury on January 12, 2005 and did not have a
contemporaneous CA-1 claim form documenting the incident or a form report from Mr. Arfman.
Mr. Hennings provided a statement noting that he saw appellant on the morning of January 12,
2005 but she did not mention that she fell. In statements dated March 12 and August 2, 2007,
appellant’s supervisor, Mr. Zarybnicky, indicated that he never received a claim form from
appellant regarding a January 12, 2005 incident and she never informed him that she fell or had
completed a CA-1 and placed it on his desk. He noted that he first learned of the incident on
December 14, 2006.
The Board also notes that appellant submitted conflicting statements with regard to when
she fell. Appellant noted on a January 12, 2005 leave slip that she sought leave from 7:30 a.m.
to 8:30 a.m. due to “Icy Road conditions -- no place to park in parking lot due to asylum
applicants;” which contradicts her December 18, 2006 statement that she fell at 7:30 a.m. Her
December 18, 2006 claim form stated that the claimed injury occurred at 8:30 a.m. Additionally,
there were no witnesses to the alleged injury or contemporaneous statements from persons
present at the employing establishment to support that the incident occurred as alleged. While an
injury does not have to be confirmed by eyewitnesses in order to establish that an employee
sustained an injury in the performance of duty, the employee’s statement must be consistent with
the surrounding facts and circumstances and her subsequent course of action. Appellant
submitted statements in 2007 from various coworkers who indicated that they remembered
8

Robert A. Gregory, 40 ECAB 478 (1989).

9

Joseph A. Fournier, 35 ECAB 1175 (1984).

10

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

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appellant telling them that she fell on ice in the parking lot; however, none of the individuals
witnessed the incident or remembered when it occurred. Mr. Arfman noted that appellant
informed him that she fell in the back parking lot, however, he was unsure of the date.
Dr. Sekundiak did not mention any history of a work-related fall on January 12, 2005;
rather he indicated that appellant was recovering from left knee surgery on November 8, 2005.
The first mention of a fall at work is in the physician’s January 22, 2007 report, nearly two years
after the alleged incident.
These circumstances of late notification, lack of confirmation of the claimed incident and
inconsistencies about the time of injury cast serious doubt upon the validity of the claim.11
For these reasons, the Board finds that appellant has not established that the claimed
incident occurred as alleged. Consequently, appellant has not met her burden of proof in
establishing her claim.
On appeal, appellant asserts that she earlier filed her claim, the Office relied too much on
evidence from the employing establishment and factors such as her receipt of a garage door
opener to a federal building help establish her claim. She also asserted that the employing
establishment was biased against employees making claims. As noted, however, the record does
not establish that appellant earlier filed a claim. The employing establishment also provided
statements from persons who were present on the claimed date of injury to support that no injury
was reported by appellant. While appellant also submitted statements, these were less specific
regarding whether the claimed injury on January 12, 2005 occurred as alleged. The evidence
also does not support that receipt of a garage door opener from the employing establishment
shows that the January 12, 2005 incident occurred as alleged. Appellant’s general assertion of
bias by the employing establishment is not supported by specific evidence indicating that the
employing establishment sought to prejudice her claim. She has the burden of proof to establish
her claim. For the reasons noted, appellant has not met her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury on
January 12, 2005 in the performance of duty, causally related to factors of her federal
employment.

11

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence;
see Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2009 and September 12, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 8, 2010
Washington, DC

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

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

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

7


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

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

Docket No. 13-441
Issued: June 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2012 appellant filed a timely appeal from a December 6, 2012 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective July 1, 2012 on the grounds that she no longer had any residuals
or disability causally related to her March 13, 1990 employment-related injury.
FACTUAL HISTORY
OWCP accepted that on March 13, 1990 appellant, then a 43-year-old city carrier, twisted
her back when the corner of a mail cart she was pushing up a ramp caught the wall and caused
1

5 U.S.C. § 8101 et seq.

her to suddenly stop. Her claim was accepted for thoracolumbar strain and sciatica.2 Appellant
stopped work and was placed on the periodic rolls.
Appellant underwent vocational rehabilitation services. On July 15, 2000 she returned to
modified duty. In a decision dated July 25, 2001, OWCP reduced appellant’s monetary
compensation benefits based on her actual earnings as a modified distribution clerk. It
determined that the position of modified distribution clerk fairly and reasonably represented her
wage-earning capacity. Appellant continued to receive wage-loss compensation benefits.
Effective September 17, 2010, the modified position was withdrawn by the employing
establishment under the National Reassessment Program (NRP).After appropriate analysis,
OWCP modified the July 25, 2001 loss of wage-earning capacity decision finding that the job
offer on which the decision was based was not permanent. It further determined that the medical
evidence established that appellant was still unable to perform the duties of her original position.
Appellant was paid compensation and again placed on the periodic rolls.
In a June 16, 2011 report, Dr. Jeffrey T. Newfield, an osteopath, stated that appellant’s
symptoms had increased even though she was not working or performing the activities that
normally created her symptoms. He stated that her diagnoses and issues that were present in
2008 were still accurate. Dr. Newfield diagnosed disc protrusion, degenerative disc disease of
the lumbar spine and bilateral carpal tunnel syndrome. He explained that appellant’s conditions
were chronic and that they were not going to miraculously disappear. Dr. Newfield reported that
she had a series of work restrictions that had been consistent over a number of years and that
those same restrictions applied, whether it was work for the postal service or any other
circumstance. He authorized appellant to work a six-hour workday with a sedentary
classification but stated that she was not to do any activity for no more than two hours at a time.
On June 8, 2011 OWCP referred appellant, together with a statement of accepted facts
(SOAF) and the medical record, to Dr. Jonathan Black, a Board-certified orthopedic surgeon, for
a secondopinion examination to determine the extent of hercontinuing employment-related
residuals and disability. The SOAF stated that her claim was accepted for thoracolumbar strain,
sciatica and aggravation of a herniated disc at C3-4 and C6-7. In a July 12, 2011 report,
Dr. Black accurately described the March 13, 1990 employment injury and reviewed appellant’s
records, including the SOAF. He noted that a December 14, 1999 magnetic resonance imaging
(MRI) scan of the cervical spine suggested a small, central disc protrusion and a December 6,
1999 MRI scan of the lumbar spine revealed desiccation of the L5-S1 disc with no evidence of
disc herniation or stenosis. Dr. Black reported that an April 2002 electromyography and nerve
conduction study was suggestive of bilateral carpal tunnel syndrome. Upon examination of the
lumbar spine, he observed no step-off or bruising and neutral sagittal and coronal balance.
Lumbar alignment was normal. Dr. Black noted hypersensitivity to palpation at the lumbosacral
junction with exaggerated pain response and decreased range of motion in the flexion and
2

Appellant has two additional accepted claims. OWCP accepted that she sustained an aggravation of preexisting
herniated discs at C3-4 and C6-7 as a result of bending, twisting and leaning forward while performing sedentary
duties (File No. xxxxxx933). On June 7, 2002 it also accepted that appellant developed bilateral carpal tunnel due to
repetitive work duties and use of a cane on the right hand (File No. xxxxxx742).

2

extension of the lumbar spine. Straight leg raise testing was negative. Examination of the
cervical spine revealed no step-off or bruising. Cervical alignment was normal. Dr. Black noted
tenderness to palpation at the cervicothoracic junction with exaggerated pain response and
decreased range of motion on flexion, extension and rotation of the cervical spine. Spurling’s
sign was negative bilaterally. Dr. Black reported that there were no objective medical findings
suggesting that appellant’s work-related conditions of aggravation of a herniated disc and
sciatica were currently active other than the fact that she exhibited hypersensitivity to palpation
at the base of the neck and lumbar spine. Appellant was completely neurologically intact.
Dr. Black found that she was capable of sedentary work as defined by the dictionary of
occupational titles. He noted that appellant had been able to perform duties within these
limitations until September 17, 2010.
In a July 12, 2011 work capacity evaluation form, Dr. Black noted that appellant was not
able to perform her usual job but could work eighthours a day with full-time restrictions. He
limited her to two hours of walking and standing and three hours of lifting no more than 10
pounds.
On August 21, 2011 OWCP requested Dr. Black clarify his secondopinion examination
report regarding whether appellant’s thoracolumbar strain and sciatica conditions had resolved
and the physical work restrictions. It enclosed a revised statement of accepted facts, which noted
that appellant’s conditions were accepted for thoracolumbar strain and sciatica.
In a September 2, 2011 report, Dr. Black provided a history of injury and presented
findings on examination that were identical to the July 12, 2011 report. He opined that
appellant’s conditions of thoracolumbar strain and sciatica were no longer active.
In a November 28, 2011 report, Dr. Newfield noted that appellant had retired since he last
examined her and related that the intensity of her discomfort, except for a current bout of
sciatica, was significantly better since she was not working.
On February 13, 2012 OWCP issued a notice of proposed termination of appellant’s
disability compensation and medical benefits based on Dr. Black’s July 12 and September 2,
2011 medical reports. Appellant was advised that she had 30 days to submit additional relevant
evidence or argument if she disagreed with the proposed action.
In a February 21, 2012 statement, appellant disagreed with the proposed termination of
benefits. She disagreed with Dr. Black’s review of Dr. Gregory Lower’s September 28, 2000
report because she filed ethical charges against him shortly after his evaluation of her. Appellant
also contested the fact that Dr. Black selected MRI scan reports that were 13 years old and met
her for only 10 minutes. She noted that, although Dr. Black concluded that her work-related
injuries had resolved, she still had restrictions from walking, standing and lifting.
Appellant submitted reports dated from 1997 to 2011 regarding her medical treatment for
thoracolumbar strain, sciatica and bilateral carpal tunnel syndrome.
In a February 17, 2012 report, Dr. Newfield stated that although appellant’s symptoms
had diminished because she had been out of work she was still actively being treated for

3

diagnoses associated with her cervical spine, carpal tunnel syndrome, lumbar spine and sciatica.
He noted that she was examined by a third party and disagreed that just because her symptoms
were not active did not mean that her treatment should be terminated. Dr. Newfield explained
that the fact that appellant’s symptoms were diminished did not mean that she had no disability
or residuals from these issues.
In a decision dated June 7, 2012, OWCP finalized the termination of appellant’s
compensation benefits effective July 1, 2012. It found that Dr. Black’s report represented the
weight of the medical evidence in establishing that her accepted conditions had ceased and that
she no longer had any residuals or disability causally related to her accepted employment
injuries.
On July 26, 2012 appellant submitted a request for reconsideration. She submitted a
description of letter carrier duties. In a June 28, 2012 report, Dr. Newfield stated that he did not
understand how Dr. Black could opine that appellant’s conditions had resolved since previous
documents and diagnostic studies still revealed symptoms of carpal tunnel syndrome. He also
noted that nerve conduction studies indicated an L4-5 radiculopathy within her lumbar spine.
Dr. Newfield explained that, although there were no updated studies, appellant continued to
exhibit soft tissue changes associated with the lumbar spine and lower extremity that were
consistent with this diagnosis. He also alleged that the ignorance to his qualifications
disassembled the case workers’ logic and raised questions of violation of law.
OWCP determined that a conflict in medical opinion existed between Dr. Black and
Dr. Newfield as to whether appellant had any continuing residuals or disability due to her
accepted employment injuries. On October 16, 2012 it referred her, together with a statement of
accepted facts and the medical record, to Dr. Robert Hatch, a Board-certified orthopedic surgeon,
for an impartial medical examination.
In a November 18, 2012 report, Dr. Hatch provided an accurate history of injury and
complaints of back problems since the March 13, 1990 employment incident. He noted that
appellant was able to return to light duty but had not worked since September 2010. Appellant
stated that therapy and other treatment modalities helped but seemed to be more “maintenance
than cure.” Dr. Hatch related her current complaints of low back pain that sometimes radiated to
the left leg. He reported that the pain interfered with strenuous activity but was disabling at
times and that general activities such as standing, walking, bending and twisting increased the
symptoms. Upon examination, Dr. Hatch observed that appellant went from a standing position
to a sitting position without hesitation and also rose from a sitting position without apparent
difficulty. Evaluation of the head, neck, thoracolumbar region, upper extremities, upper pelvis
and lower extremities showed no swelling. Dr. Hatch noted that appellant ambulated with a cane
in hand and that her gait was best described as mild left and antalgic. Examination of the
thoracolumbar spine revealed no significant tenderness, significant guarding, true spasm or
masses. Straight leg raise testing was negative. Dr. Hatch observed tenderness in the left thigh,
superior gluteal region and adjoining tenderness when palpating the mid-gluteal region. He
diagnosed mild symptomatic spondylosis with a stable cervical spine, history of bilateral carpal
tunnel syndrome and history of low back pain without associated clinical neuropathy or muscular
atrophy.

4

Dr. Hatch stated that appellant’s neck symptoms and upper extremity symptoms,
including her accepted cervical disc conditions, had largely resolved or were being managed to a
point where there was no significant deficit. He however concluded that she was capable of
sedentary work, given her current findings.
Regarding appellant’s lower back symptoms, Dr. Hatch noted that the medical records
were controversial since some practitioners reported that it was permanent and others reported no
injury whatsoever. He opined that there were still some residual symptoms of low back pain and
that the question of whether appellant still had sciatica or even significant low back pain was still
an unsettled question. Dr. Hatch reported that there was no strong objective evidence for
significant thoracolumbar pathology and that her low back concern was almost entirely a
subjective concern. He opined that appellant’s subjective complaints did not outweigh the
objective findings, but that her complaints and few objective findings were correspondingly
weak. Dr. Hatch reported that, according to his physical examination and her testimony, her
conditions of the cervical spine, bilateral carpal tunnel and low back were all stable and there
was no strong case for appellant’s inability to perform at age-appropriate levels. Heagreed with
Dr. Black’s September 2, 2011 opinion that there were no objective medical findings suggesting
that appellant’s work-related conditions of aggravation of a herniated disc and lumbar
spondylosis with sciatica were currently active other than hypersensitivity to palpation and
concluded that she was capable of sedentary work. Dr. Hatch stated that she was able to work
under the restrictions of modified clerk which included lifting under 10 pounds intermittently for
two to six hours, sitting with ergonomic chair with arms for four to sixhours, standing and
comfort measures as needed for four to sixhours and simple grasping intermittently for three to
five hours a day.
In a November 20, 2012 work capacity evaluation, Dr. Hatch noted appellant’s accepted
conditions of thoracolumbar strain and sciatica. He indicated that she was capable of working a
light, sedentary job. Dr. Hatch restricted appellant to walking for three hours a day.
In a decision dated December 6, 2012, OWCP denied modification of the June 7, 2012
termination decision. It found that the weight of the medical evidence rested with Dr. Hatch’s
impartial medical examination.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.3 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.4 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
If there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.8
ANALYSIS
OWCP accepted that on March 13, 1990 appellant sustained a thoracolumbar strain and
sciatica in the performance of duty. Appellant stopped work and returned to modified duty. On
September 17, 2010 the modified position was withdrawn under NRP. Appellant stopped work
and was placed on the periodic rolls.
OWCP found that a conflict in medical opinion existed between appellant’s physician,
Dr. Newfield, who found that appellant continued to suffer residuals of her work-related injuries
and Dr. Black, the secondopinion examiner, who found that she work-related injuries had
resolved. It referred appellant to Dr. Hatch for an impartial medical examination to resolve the
conflict in medical opinion. In a November 18, 2012 report, Dr. Hatch agreed with Dr. Black’s
opinion that there were no objective medical findings suggesting that her work-related conditions
of aggravation of a herniated disc and lumbar spondylosis with sciatica were currently active.
OWCP determined that Dr. Hatch’s opinion constituted the weight of the evidence and thereafter
terminated appellant’s entitlement to disability compensation.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
disability compensation and medical benefits because the medical evidence does not establish
that her work-related injuries had resolved.
OWCP terminated appellant’s compensation benefits based on Dr. Hatch’s November 18,
2012 report. Dr. Hatch provided an accurate history of injury and conducted an examination.
He diagnosed mild symptomatic spondylosis with a stable cervical spine, history of bilateral
carpal tunnel syndrome and history of low back pain without associated clinical neuropathy or
muscular atrophy. Dr. Hatch stated that appellant’s neck symptoms and upper extremity
symptoms, including her accepted cervical disc conditions, had largely resolved or were being
managed to a point where there was no significant deficit. He concluded that she was capable of
sedentary work, given her current findings. The Board finds that as appellant was employed as a
city carrier on the date ofinjury, a medical opinion that she could return to sedentary work does
not establish that disability has ceased. Dr. Hatch opined that appellant’s accepted conditions
6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
7
8

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.
5 U.S.C. § 8123; 20 C.F.R. § 10.321(b); see also Darlene R. Kennedy, 57 ECAB 414 (2006).

6

were currently being properly managed but he did not adequately explain why further medical
care was no longer necessary.
Regarding appellant’s lower back conditions, Dr. Hatch noted that the question of
whether she still had sciatica or even significant low back pain was an “unsettled question.”The
Board finds that he did not offer an affirmative opinion that her thoracolumbar strain and sciatica
had resolved. Instead, Dr. Hatch reports that appellant had residuals of low back pain and that it
was an “unsettled question” whether she still suffered from sciatica and significant low back
pain. His opinionis inconclusive. The Board has held that medical opinions that are speculative
or equivocal in character and not based on reasonable medical certainty lack probative value.9
Dr. Hatch also stated that appellant’s subjective complaints did not outweigh the objective
findings and that her complaints and few objective findings were correspondingly weak. He did
not however explain what those objective findings were. Dr. Hatch did not reference any
specific diagnostic imaging or MRI scan tests to demonstrate his opinion that the objective
evidence was weak. The Board has found that medical conclusions unsupported by medical
rationale are of little probative value.10 Because Dr. Hatch does not affirmatively conclude that
appellant’s work-related back injury had resolved and does not support his opinion with medical
rationale his report is insufficient to justify termination of her medical benefits.
In assessing medical evidence, the weight of medical evidence is determined by its
reliability, its probative value and its convincing quality. Factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.11 In this case, the medical evidence and rationale supporting Dr. Hatch’s opinion is
lacking. Accordingly, his opinion has diminished probative value and is not entitled to special
weight in resolving the conflict between Drs. Newfield and Black. As that conflict remains
unresolved, the Board will reverse OWCP’s December 6, 2012 decision and will remand the case
for a proper reinstatement of compensation benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s disability compensation and medical benefits.

9

See S.B., Docket No. 12-1144 (issued November 5, 2012); Beverly R. Jones, 55 ECAB 411 (2004).

10

A.D., 58 ECAB 149 (2006); Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB
968 (1949).
11

Anna M. Delaney, 53 ECAB 384 (2002).

7

ORDER
IT IS HEREBY ORDERED THATthe December 6, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE ARMY, ALABAMA
NATIONAL GUARD, Enterprise, AL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-989
Issued: November 23, 2011

Case Submitted on the Record

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

JURISDICTION
On March 4, 2011 appellant, through his attorney, filed a timely appeal from a
September 13, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
regarding an overpayment of 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.2
ISSUES
The issues are: (1) whether OWCP properly found an $81,989.83 overpayment of
compensation from January 22, 2002 to February 16, 2004, due to payment of a duplicate
schedule award; and (2) whether OWCP properly determined that appellant was at fault in
creating the overpayment and therefore it was not subject to waiver.
1
2

5 U.S.C. § 8101 et seq.

Accompanying his request for appeal, counsel submitted new evidence. The Board may not consider evidence
for the first time on appeal that was not before OWCP at the time it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). The new evidence may be submitted to OWCP pursuant to a valid request for reconsideration.

On appeal, counsel does not contest the fact or amount of the overpayment. He asserts
that appellant was not at fault as he did not understand how schedule awards were paid. Counsel
also contended that recovery of the overpaid compensation would cause financial hardship.
FACTUAL HISTORY
OWCP accepted that on or before February 1, 1988 appellant, then a 41-year-old
automotive mechanic, sustained bilateral high frequency hearing loss due to hazardous noise
exposure at work. On January 4, 1991 it issued a schedule award for a 43 percent binaural
hearing loss under File No. xxxxxx621, paid from August 26, 1997 to December 14, 1998. On
December 4, 1997 OWCP issued a schedule award for an additional 34 percent binaural hearing
loss, paid from May 22, 1990 to January 11, 1992. Appellant continued working at the
employing establishment through 2002 and onward. He continued to be exposed to hazardous
noise.
On February 21, 2002 appellant filed a third schedule award claim for hearing loss.
OWCP conducted medical development demonstrating that he had a 54 percent binaural hearing
loss. On April 18, 2002 it granted appellant a schedule award for a 54 percent binaural hearing
loss. The period of the award ran 108 weeks, from January 22, 2002 through February 16, 2004.
OWCP advised appellant that following an initial payment of $9,545.50 for the period
January 22 to April 20, 2002, he would receive $3,003.08 each four weeks. Appellant completed
an electronic funds transfer authorization form on October 8, 2002.
In a June 30, 2005 letter, appellant advised OWCP that he filed the 2002 schedule award
claim as he needed new hearing aids.
On December 16, 2005 OWCP doubled appellant’s hearing loss claims under File Nos.
xxxxxx621, xxxxxx159, xxxxxx398 and xxxxxx369 under File No. xxxxxx462.
In a May 27, 2010 letter, the employing establishment advised OWCP that the April 18,
2002 schedule award appeared to be a duplicate of the two prior schedule awards, as appellant
had received compensation for a 131 percent hearing loss or more than a 100 percent loss.
By notice dated July 26, 2010, OWCP advised appellant of its preliminary determination
that an $81,989.83 overpayment of compensation occurred in his case as he received a duplicate
schedule award from January 22, 2002 to February 16, 2004. It found that it had issued a
schedule award on January 4, 1991 for a 43 percent bilateral hearing loss under File No.
xxxxxx621, paid from May 22, 1990 to January 11, 1992 and a second award on December 4,
1997 for an additional 34 percent hearing loss, paid from August 26, 1997 to
December 14, 1998. There was no medical evidence to establish that appellant sustained more
than the 77 percent bilateral hearing loss. However, OWCP issued the April 18, 2002 schedule
award under File No. xxxxxx898 for an additional 54 percent hearing loss, to total 131 percent
impairment. It found appellant at fault in creation of the overpayment as he knew or should have
known that he was not entitled to the additional schedule award because there was no medical

2

evidence establishing a greater percentage of impairment than the 77 percent previously
awarded.3
By decision dated September 13, 2010, OWCP finalized its preliminary determination,
finding an $81.989.83 overpayment of compensation for the period January 22, 2002 to
February 16, 2004. It further found that the overpayment was not subject to waiver as appellant
was at fault in its creation. OWCP directed recovery of the overpayment at the rate of $1,000.00
a month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 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.”5 OWCP’s procedure manual
identifies various situations when overpayments of compensation may occur, including when a
schedule award expires but compensation continued to be paid.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $81,989.83 from January 22, 2002 to February 16, 2004. The April 18, 2002 schedule award
for a 54 percent binaural hearing loss duplicated the 77 percent previously awarded, 43 percent
on January 4, 1991 and 34 percent on December 4, 1997. There is no medical evidence of record
indicating that appellant sustained greater than the 77 percent binaural hearing loss. Therefore,
the April 18, 2002 schedule award was duplicative and erroneous. The $81,989.83 paid under
that award constitutes an overpayment of compensation.
There is no contrary evidence regarding the fact and the amount of the overpayment.
Also, appellant does not contest the fact or amount of the overpayment. The Board finds that he
received an overpayment of $81,989.83 for the period January 22, 2002 to February 16, 2004.

3

In response to OWCP’s July 26, 2010 request, appellant submitted financial information regarding his income,
assets and expenses. He listed $4,177.95 in savings, $5,376.85 in monthly household income and $2,956.39 in
ordinary and necessary living expenses.
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).

3

LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of FECA and the implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.7 Section 10.433 of the implementing regulations specifically provide that
OWCP may consider waving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.8 The regulations further provide that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper.9 Under the regulations, a recipient will
be found to be at fault with respect to creating an overpayment if the recipient on the issue of
fault, section 10.433 of OWCP’s regulations, provide that an individual will be found at fault if
he or she has done any of the following: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.10
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment under the third
standard noted above, because he accepted payments from April 20, 2002 to February 16, 2004
that he knew or should have known were incorrect. In order for it to establish that he was at fault
in creating the overpayment of compensation, OWCP must establish that, at the time he received
the compensation payments in question, he knew or should have known that the payments were
incorrect.11
The April 18, 2002 schedule award decision stated on its face that it was for a 54 percent
binaural hearing loss. Appellant knew or should have known that he had already received a
January 4, 1991 schedule award for a 43 percent binaural hearing loss and a December 4, 1997
schedule award for an additional 34 percent binaural hearing loss or a total of 77 percent. The 54
percent awarded on April 18, 2002 represented total schedule award compensation of 131
percent. Appellant knew or should have known that it was impossible to have more than a 100
percent loss of hearing. He did not assert and the medical evidence does not support, that he had
a total loss of hearing, indicating that the correct percentage of loss was less than 100 percent.
OWCP correctly found appellant at fault in creation of the overpayment from January 22, 2002
through February 16, 2004.

7

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

8

20 C.F.R. § 10.433(a).

9

Id.

10

Id. at § 10.433(a)(3).

11

Diana L. Booth, 52 ECAB 370, 373 (2001).

4

The Board notes that, with respect to the recovery of the overpayment of compensation,
the Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery from
continuing compensation benefits under FECA.12 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.13
On appeal, counsel stated that appellant was not at fault as he did not understand how
schedule awards were paid. As stated, the April 18, 2002 schedule award clearly stated the
percentage and period of the award. Counsel also contended that recovery of the overpaid
compensation caused severe financial hardship. As noted, the Board does not have jurisdiction
over the recovery of compensation in this case as appellant is not in receipt of continuing
compensation benefits.
CONCLUSION
The Board finds that OWCP properly found an $81,989.83 overpayment of compensation
from January 22, 2002 to February 16, 2004 due to payment of a duplicate schedule award. The
Board further finds that OWCP properly determined that appellant was at fault in creating the
overpayment and therefore it was not subject to waiver.

12

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

13

Cheryl Thomas, id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2010 is affirmed.
Issued: November 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dublin, GA, Employer
__________________________________________

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

Docket No. 09-2032
Issued: August 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 4, 2009 appellant, through his attorney, filed a timely appeal from an
October 1, 2008 merit decision of the Office of Workers’ Compensation Programs denying his
traumatic injury claim and a July 13, 2009 decision denying further merit review. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.1
ISSUES
The issues are: (1) whether appellant established that he sustained an injury in the
performance of duty on January 2, 2008; and (2) whether the Office properly denied
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An
appeal of Office decisions issued on and after November 19, 2008 must be filed within 180 days of the decision.
20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On January 15, 2008 appellant, then a 49-year-old program support assistant, filed a
traumatic injury claim alleging that on January 2, 2008 he experienced a pop in his left knee. He
claimed that at 11:30 a.m., after assisting a veteran to the compensation and pension office, he
noticed the post office was open. Appellant stated that he rushed to his vehicle, cutting across
the grass, and lost his footing. The employing establishment controverted the claim on the
grounds that there were different accounts regarding the circumstances of the injury. It noted
that appellant’s regular-duty hours were from 8:00 a.m. to 4:30 p.m.
By letter dated January 18, 2008, the Office notified appellant of the deficiencies in his
claim and requested he provide additional factual and medical evidence.
In a January 2, 2008 medical record, Chris May, a physician’s assistant, relayed that,
while at work, appellant went outside to get his jacket from his vehicle and his right knee
suddenly popped.
On January 29, 2008 appellant stated that his regular-duty hours were from 7:00 a.m. to
4:30 p.m. and that he was allotted a 30-minute break and two 15-minute breaks. He noted that at
the time of his injury, he was on the employing establishment’s premises. Appellant was
returning to his vehicle to pick up his work head set that he had accidentally worn home the night
prior and left in his vehicle. He questioned whether he was required to request a break to
retrieve a headset from his vehicle and whether he was on official duty if he returned to his
vehicle to mail a letter after assisting a veteran to the front door.
In an undated statement, the employing establishment relayed appellant’s statement that
he had taken a veteran to the compensation and pension office and then returned to his vehicle to
retrieve something when he felt his knee pop while walking on the grass. Appellant stated that
he was going to the post office, which was located near the compensation and pension office.
The employing establishment contended that appellant was not on break or lunch when the
incident occurred.
By decision dated February 25, 2008, the Office denied appellant’s claim on the grounds
that he did not submit sufficient factual evidence to establish that the claimed incident occurred
as alleged. It found inconsistent accounts as to the circumstances surrounding the incident.
On March 12, 2008 appellant, through his attorney, requested an oral hearing before an
Office hearing representative that took place on July 15, 2008. Appellant stated that on
January 2, 2008 he was called to assist a veteran with issues relating to pension and
compensation. While waiting for the veteran’s appointment, he ran to his vehicle, cutting across
the grass, to retrieve a personal envelope when he felt his right leg give way. Appellant also
grabbed his identification badge, which he saw hanging in his vehicle. He returned to the
building, provided the veteran with information and went back upstairs to his office. During this
time, he felt a pinching in his right knee, which he immediately reported to a coworker and then
a supervisor. He sought treatment that day.

2

In a March 26, 2008 statement, William Curtis Clark stated that on January 2, 2008 he
had an appointment in the compensation and pension office at the employing establishment
medical center. He arrived for his appointment early and contacted appellant, who was his
previous military coworker, for assistance in locating information. Appellant met him at front
and subsequently went somewhere and returned with employment documents. Mr. Clark stated
that he was not aware of when or where the alleged injury occurred.
On March 12, 2008 Mr. May, the physician’s assistant, stated that appellant advised him
that his prior statement, that appellant had injured himself while getting his jacket from the
vehicle, was incorrect. Rather, appellant stated that he was going to his vehicle to get his
identification card after going to the post office when the injury occurred. Mr. May claimed that
he did not know why he thought that appellant was returning to his vehicle to retrieve his jacket
and that the nurse’s notes on that date did not mention a jacket.
On August 8, 2008 appellant’s supervisor stated that appellant’s duties did not include
working directly with veterans or addressing compensation and pension inquiries. She advised
that he did not notify her of an injury on January 2, 2008.
In an August 12, 2008 letter, the employing establishment stated that appellant’s duties
did not include compensation and pension issues. Appellant’s supervisor was under the
impression that appellant was being courteous in assisting a veteran he met on the way to the
post office located within the facility. The employing establishment pointed to several
inconsistencies in the factual evidence and noted that appellant initially filed a claim for a left
knee injury, as opposed to the subsequently diagnosed right knee injury.
In a September 8, 2008 brief, appellant, through his attorney, argued that he was
performing his duties when his injury occurred. He was assisting a fellow veteran and during the
course of assistance, realized he had left his identification badge, communication headset and an
item of personal correspondence in his vehicle. Appellant contended that he was reasonably
engaged in employment-related activities when the injury occurred. In the alternative, he argued
that the time he spent assisting Mr. Clark would be considered an authorized break reasonably
incidental to his employment resulting in a compensable injury. Appellant contended that the
factual discrepancies of record were immaterial to the claim as he was on the job and in the
course of his employment at all times.
Appellant provided a time line of events from January 2 through February 10, 2008. On
January 2, 2008 he received a call regarding a veteran he knew personally who requested
assistance. He went downstairs to speak with the veteran regarding employment at the
employing establishment. Appellant went upstairs to collect some information and noticed the
post office was open. He remembered he had some letters to mail and jogged over to his vehicle.
Appellant cut across the grass because it was cold outside and he was not wearing a coat; he
slipped, but did not fall, and experienced a pop from his right knee with some slight pain.
Appellant retrieved the letters from his vehicle and grabbed his identification badge, which was
hanging in his rear-view mirror. He jogged back to the building, gave some information to the
veteran and then dropped off his letters at the post office before returning to his office. He
informed a coworker of the injury, who called his supervisor, and went to the health clinic where
he was examined by Mr. May.

3

By decision dated October 1, 2008, an Office hearing representative affirmed the
February 25, 2008 decision, finding that appellant did not sustain an injury in the performance of
duty. She determined that appellant left his work area for a purely personal reason, to retrieve
something from his vehicle, which removed him from the performance of his duties. The
hearing representative noted that appellant later contended that he also retrieved an identification
badge, but found that his earlier statements were more accurate and truthful.
On July 6, 2009 appellant requested reconsideration. He stated that he was misled by the
employing establishment and his coworkers regarding the handling of his claim. Appellant
alleged that his claim was initially granted but later denied after the employing establishment
realized that his right knee required surgery. He paid for the surgery, contending he was injured
while at work serving his fellow veterans.
By decision dated July 13, 2009, the Office denied appellant’s request for reconsideration
on the grounds that he did not show that the Office erroneously applied or interpreted a specific
point of law; advance a previously unconsidered legal argument or submit new and relevant
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 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.6
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. It is not
sufficient under general principles of workers’ compensation law to predicate liability merely
upon the existence of an employee-employer relationship.7

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 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 ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

George A. Fenske, 11 ECAB 471 (1960).

4

Congress has provided for the payment of compensation for disability or death resulting
from personal injury sustained while in the performance of duty.8 The Board has interpreted the
phrase “while in the performance of duty” to be the equivalent of the commonly found
prerequisite in workers’ compensation law of “arising out of and in the course of employment.”9
The phrase, “in the course of employment” deals with the work setting, the locale and the time of
injury. “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.10
In the compensation field, it is generally held that an injury arises out of and in the course
of employment when it takes place: (a) within the period of employment; (b) at a place where
the employee may reasonably be expected to be in connection with the employment; (c) while he
is reasonably fulfilling the duties of the employment or engaged in doing something incidental
thereto; and (d) when it is the result of a risk involved in the employment, or the risk is incidental
to the employment or the conditions under which the employment is performed.11
ANALYSIS -- ISSUE 1
The issue is whether appellant established that he sustained a right knee injury on
January 2, 2008 while in the performance of duty.
The evidence of record is relatively consistent regarding the basic facts surrounding
appellant’s alleged right knee injury. The employing establishment did not dispute that the
January 2, 2008 incident occurred during appellant’s working hours, while he was on the
premises of the employing establishment. Further, the statements by appellant, the employing
establishment and other witnesses are consistent in alleging that at the time of the incident,
appellant had left his office to personally assist a previous military coworker, Mr. Clark. He
noticed the post office was open and subsequently rushed to his vehicle to retrieve an item of
personal correspondence when he slipped on the grass.
The mere fact that appellant was on the premises and on duty at the time of injury is not
sufficient to establish entitlement to compensation benefits. It must also be established that
appellant was engaged in activities which may be described as incidental to his employment, i.e.,
that he was engaged in activities which fulfilled his employment duties or responsibilities
thereto.12

8

5 U.S.C. § 8102(a).

9

See Timothy K. Burns, 44 ECAB 291 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990); Christine Lawrence,
36 ECAB 422 (1985).
10

See Larry J. Thomas, 44 ECAB 291 (1992).

11

Mary Beth Smith, 47 ECAB 747 (1996).

12

See Barbara D. Heavener, 53 ECAB 142 (2001).

5

In the case of Barbara D. Heavener,13 the Board found an employee’s fall while on the
premises of the employing establishment was not in the performance of duty. The employee left
her office building to retrieve an address book from her vehicle. The Board found that she was
engaged in a personal mission unrelated to her employment and not activities reasonably
incidental to her employment. Similarly, appellant’s injury occurred while on the way to his
vehicle to retrieve personal items.14 His action was personal in nature and not related to the
employing establishment’s business or reasonably incidental to his employment.15 The Board
finds that appellant’s activities cannot be likened to incidental acts, such as using a toilet
facility,16 drinking coffee or similar beverages17 or eating a snack during a recognized break in
the daily work hours,18 which are generally recognized as personal ministrations that do not take
the employee out of the course of his employment.19 The departure of appellant from his
workstation to retrieve personal items is not considered an activity necessary for personal
comfort or ministration or incidental to his employment.20
The Board notes that appellant testified at the July 15, 2008 oral hearing that while
returning to his vehicle to retrieve a piece of mail, he noticed his identification badge hanging in
his vehicle. This was the first time appellant mentioned retrieving his identification badge.21
The Board notes that this fact is not sufficient to find that his activities arose out of his
employment. Appellant’s motive for returning to his vehicle was purely personal in nature, to
retrieve an item of personal correspondence. That he incidentally found his identification badge
in his vehicle after the alleged injury and during the course of his personal mission is not
13

Id.

14

The Board notes that appellant’s injury occurred while he was rushing out to his vehicle and not while he was
aiding his former military coworker. Therefore, the issue of whether appellant’s providing of assistance to
Mr. Clark was in the scope of his employment is not relevant to the analysis in this case.
15

Id. See also Valerie C. Boward, 50 ECAB 126 (1998) (where the Board found that an injury arising out of an
employee’s washing her car windows while on the employing establishment’s premises did not occur in the
performance of duty because she was engaging in a personal activity unrelated to her employment); Mary Beth
Smith, 47 ECAB 747 (1996) (where the employee’s injury on the employer’s premise while picking up her child
from day care did not occur in the performance of duty as her activity was purely personal in nature.)
16

See V.O., 59 ECAB ___ (Docket No. 07-1684, issued May 2, 2008); Frank M. Escalante, 13 ECAB
160 (1961).
17

See Helen L. Gunderson, 7 ECAB 707 (1955).

18

See Mary Kokich, 52 ECAB 239 (2001).

19

See Mary M. Martin, 34 ECAB 525 (where the Board held that taking a walk was not an activity closely related
to personal ministrations.)
20

See Robert A. Pszczolkowski, Docket No. 01-1645 (issued April 11, 2002) (where an employee fell on the
employing establishment’s premises while retrieving personal mail from his vehicle; the Board found that the
employee’s actions constituted a personal mission unrelated to his employment duties; the Board also found that his
actions did not fall under the exception for activities undertaken for an employee’s personal comfort or
ministration).
21

The employee’s statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. See generally, Irene St. John, 50 ECAB 521 (1999).

6

sufficient to find that the errand was related or incidental to the fulfillment of his employment
duties.
Therefore, the Board finds that the January 2, 2008 incident did not occur within the
performance of duty.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act22 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.23 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).24
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,25 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.26 To be entitled to
a merit review of an Office 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.27 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.28
ANALYSIS -- ISSUE 2
Appellant did not submit any additional evidence with his request for reconsideration.
Therefore, the issue is whether he advanced a previously unconsidered legal argument or showed
that the Office erroneously applied or interpreted a specific point of law.
In a July 6, 2009 statement, appellant claimed that the employing establishment and his
coworkers lied to him regarding the handling of his claim. He further alleged that his claim was
only denied after the employing establishment realized that his injury required surgery and that
he was required to pay for his right knee surgery himself, despite the fact that he was injured
while at work serving his fellow veterans.
22

5 U.S.C. §§ 8101-8193.

23

Id. at § 8128(a).

24

Annette Louise, 54 ECAB 783, 789-90 (2003).

25

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
26

20 C.F.R. § 10.606(b)(2).

27

Id. at § 10.607(a).

28

Id. at § 10.608(b).

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Appellant did not provide any evidence to support his contentions that his case was
mishandled by the employing establishment or that he was provided false information during the
development of his case. While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required, as in the present case, where
the legal contention does not have a reasonable color of validity.29
The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent new evidence not previously considered by the
Office. Accordingly, the Office properly denied merit review of appellant’s claim.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty on January 2, 2008. The Board also finds that the Office denied his request
for reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2009 and October 1, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

29

See Elaine M. Borghini, 57 ECAB 549 (2006).

8


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

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

Docket No. 17-0066
Issued: March 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 19, 2016 appellant filed a timely appeal from an August 16, 2016 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
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on July 2, 2016.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 16, 2016 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On July 2, 2016 appellant, then a 35-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he sustained an umbilical hernia due to
lifting a parcel from the delivery vehicle. He stopped work on July 2, 2016 and has not returned
to work.
In a July 2, 2016 narrative statement, appellant related that the July 2, 2016 injury
occurred as he was attempting to deliver a parcel which weighed 10 to 15 pounds. He explained
that when he reached down to retrieve the parcel from the back of his vehicle, he felt an intense
burning sensation from his navel to groin area. Appellant saw a small bulge around his navel
area. After delivering the parcel, he returned to his vehicle and drove a short distance before
contacting his supervisor.
In a July 2, 2016 statement, K.A., acting supervisor customer service, related that
appellant informed her that he felt a burning sensation in his navel while bending to pick up a
parcel for delivery. He informed her that he noticed a golf ball sized knot in his navel area after
standing up. K.A. related that appellant stated that he had prior hernia problems and that he
believed his hernia had popped out.
In an undated narrative statement, J.R., a coworker, related that appellant told him that he
had previously been treated for hernia, which is how he recognized his current condition as a
hernia.
The record contains one page of an authorization for examination and/or treatment (Form
CA-16) signed by K.A. K.A. noted by checkmark that there was doubt as to whether the
employee’s condition was employment related.
A July 2, 2016 duty status form (Form CA-17) contained a diagnosis of umbilical hernia
and lifting/carrying restrictions of no more than 10 pounds. No history of injury was provided
and the physician’s signature was illegible.
By correspondence dated July 13, 2016, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. Appellant was afforded 30 days to submit
additional factual and medical evidence.
OWCP received additional evidence on July 25, 2016. In a July 2, 2016 emergency room
report, Christopher C. Thomas, a physician assistant, diagnosed umbilical hernia and abdominal
pain. He related that appellant was seen for a burning pain and pull in his abdomen which
occurred after he bent down to pick up a parcel at work. Appellant’s physical examination
revealed a one centimeter mass near the umbilicus. In a July 4, 2016 addendum, Dr. Dewitt A.
Pittman, a specialist in emergency medicine, noted that appellant had history of umbilical hernia
and that he experienced swelling and pain at work after lifting a box.
In a report dated July 8, 2016, Dr. Whitney L. Webb, Board-certified in general surgery,
noted that appellant was seen for complaints of pain and mid abdomen bulge. Under history of
present illness, he reported that appellant was diagnosed with a traumatic ventral hernia in
July 2014 following a motor vehicle collision while working for the employing establishment.
2

According to appellant the hernia was much smaller until July 2, 2016 when he lifted a heavy
object. Appellant related that following the lifting of the heavy object, he experienced pain and a
mid-abdomen bulge. A physical examination revealed a six centimeter bulge mid abdomen
below the umbilicus, which was consistent with a ventral hernia.
In a July 8, 2016 disability note, Dr. Webb indicated that appellant would be able to
return to work on July 11, 2016 with work restrictions and noted that surgery was scheduled for
August 9, 2016.
On July 28, 2016 appellant provided responses to questions posed by OWCP. He stated
that, prior to the July 2, 2016 incident, he had not been treated or diagnosed with a hernia. While
a treating physician informed appellant that he had symptoms of hernia, he had not previously
been diagnosed with a hernia. He also related that he had lifted several packages weighing more
than 11 pounds on the day in question. Appellant denied telling J.R. that he had previously been
diagnosed with a hernia. He related at the time of the July 2, 2016 incident he was performing
the duties of his position by delivering parcels and that prior to the incident he had delivered
several large parcels.
By decision dated August 16, 2016, OWCP denied appellant’s claim. It found the
evidence of record failed to establish that the incident occurred as alleged. OWCP found that
appellant supplied conflicting descriptions regarding how the injury occurred. It noted that his
various descriptions of reaching down, lifting, standing up, and bending down suggested more
than one cause of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
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.7 Second, the employee must

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

3

submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden of proof to establish the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.10
ANALYSIS
On July 2, 2016 appellant stopped work and filed a traumatic injury claim alleging that,
on that date, he sustained an umbilical hernia due to lifting parcels from his delivery vehicle.
OWCP by decision dated August 16, 2016 denied appellant’s claim, finding that he had failed to
establish that the July 2, 2016 incident occurred as alleged due to inconsistencies in the factual
evidence.
The Board finds that appellant has established the factual aspect of his alleged injury.
Statements from a supervisor and a coworker are supportive of appellant’s description of how the
July 2, 2016 incident occurred. The Board finds that the July 2, 2016 emergency room report
and addendum by Dr. Pittman describing the July 2, 2016 incident does not vary from
appellant’s description that appellant bent down to pick up a parcel and felt pain and a pull in his
abdomen. The emergency room report and Dr. Pittman described the incident as occurring after
appellant bent over to pick up a parcel at work, which is consistent with appellant’s statement on
his CA-1 form and statements from his supervisor and coworker. There is no contradictory
evidence of record that this incident did not occur at the time, place, and in the manner alleged.
Thus, contrary to OWCP’s finding in its August 16, 2016 decision, the Board finds that appellant
has established an employment incident during his scheduled work shift on July 2, 2016.11
Whether or not this incident caused the diagnosed hernia condition is a separate
component of fact of injury.12 Causal relationship is a medical issue, which must be determined
by review of the medical evidence.13 Appellant has established that a work incident occurred on
8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

See 20 C.F.R. § 501.2(c)(1).

10

Betty J. Smith, 54 ECAB 174 (2002).

11

Thelma Rogers, 42 ECAB 866 (1991).

12

See S.H., Docket No. 12-1776 (issued August 5, 2013).

13

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

July 2, 2016 in the performance of duty. The evidence of record supports that he felt pain while
lifting a parcel from the back of his delivery vehicle on July 2, 2016. OWCP has not however
evaluated the medical evidence of record to determine whether this incident caused an injury.
The case shall be remanded to OWCP to consider whether the record establishes a medical
condition causally related to the accepted incident. After this further development, OWCP shall
issue a de novo decision regarding appellant’s claimed July 2, 2016 work incident.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16, 2016 is set aside and the case is remanded to OWCP
for proceedings consistent with this decision of the Board.
Issued: March 24, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 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

3