United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Pine Bluff, AR, Employer
__________________________________________

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

Docket No. 07-1140
Issued: January 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 21, 2007 appellant filed a timely appeal from the February 27, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of his claim. The Board also has jurisdiction to review the November 28, 2006 merit
decision of the Office hearing representative, who affirmed the denial of benefits.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On September 22, 2004 appellant, then a 44-year-old food inspector, filed an
occupational disease claim alleging that his neck pain and numbness was a result of his federal
employment. He attributed his condition to working on new stands, which caused him to
perform his duties with his arms extended far from his body. The pain in his neck would start

about an hour into his work: “Now it has progress[ed] to whenever I am sleeping, standing, or
sitting this sharp pain in my neck would start and my left shoulder, arm and fingers go numb for
about 20 to 30 minutes.” Appellant first became aware of his condition on January 25, 2004. He
stopped work on September 12, 2004.
An October 8, 2004 magnetic resonance imaging (MRI) scan of the cervical spine
showed a prominent posterior disc protrusion at C5-6 resulting in cord compression and left
foraminal stenosis. There was also minimal protrusion noted at C6-7 resulting in minimal cord
deformity but no foraminal stenosis.
In a decision dated January 31, 2005, the Office denied appellant’s claim for lack of
competent medical opinion evidence.
On March 8, 2005 Dr. Ronald N. Williams, a consulting neurosurgeon, noted appellant’s
history: “Since late January 2004 he has had difficulty with numbness and tingling of both arms
worse on the left than the right. That started when he was working daily at a job that required
repetitive motions of his arms outstretched in front of him with weight.” Dr. Williams reported
the MRI scan findings and his findings on physical examination, and he spoke with appellant
about having surgery.
On August 22, 2005 an Office hearing representative reviewed the written record and
found that further development of the medical evidence was warranted. The hearing
representative found that Dr. Williams’ report, while not sufficient to discharge appellant’s
burden of proof, nonetheless raised an uncontroverted inference of causal relationship with an
accurate history of injury that was consistent with appellant’s statements.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Charles E. Schultz, a Board-certified neurologist, for an opinion on causal
relationship. On January 2, 2006 Dr. Schultz reviewed appellant’s history and complaints and
his findings on physical examination. Responding to the questions the Office posed, he reported
no causal relationship between appellant’s physical condition and his federal employment:
“No, there is no evidence the disc findings on MRI [scan] were caus[ed] by
inspecting chickens. Patient’s disc findings appear chronic in nature with a
disc/osteophyte complex. This appears to be more related to degenerative disc
disease and chronic arthritic changes. This finding would not have developed
after an acute injury. This finding was also further noted by Dr. Ronald Williams
in his note from March 8, 2005 in which he describes a small osteophyte
combination at C5-6 with cord compression and left foraminal stenosis. Patient
also has carpal tunnel syndrome involving his left wrist found on today’s EMG
[electromyogram] which patient gives no evidence of occurring on the job. There
appears to be a higher incidence of carpal tunnel syndrome in patients who are
diabetic. Patient has not complain[ed] of symptoms involving his right wrist
which would lean more towards an occupational etiology.”
In a decision dated March 15, 2006, the Office denied appellant’s claim for
compensation. Appellant requested an oral hearing, which was held on October 17, 2006.

2

Following the hearing, appellant submitted a September 26, 2006 report from
Dr. Williams:
“I first saw [appellant] on March 8, 2005. At that time he indicated [that] the
difficulty he was having with the left arm started when he was working daily at a
job that required repetitive motions and weight with his arms outstretched in front
of him. This would be considered accumulative trauma. This history would most
likely represent the proximate cause of his medical care and surgery.”
In a decision dated November 28, 2006, the Office hearing representative affirmed the
denial of appellant’s claim. She found that the weight of the medical evidence rested with
Dr. Schultz, who provided rationale to support his position: “While Dr. Williams has supported
causal relationship, he has provided no medical rationale explaining how the claimant’s cervical
degenerative disc disease was caused or aggravated by the employment activities.”
Appellant submitted a November 7, 2006 report from Dr. Williams:
“[Appellant’s] case manager always seems fairly clear cut to me. He, while at
work, began having neck pain radiating into the left arm. [Appellant] was noted
to have biceps weakness, which was supplied by the nerve root that is actually at
the [C]5-6 level. A[n] MRI [scan] on two occasions show not only cervical
spondylosis, but a combination of herniated discs. At the time of surgery, a
herniated disc was found. I also had EMG and nerve conduction studies done on
him which showed a C6 radiculopathy, which again fits quite nicely with the
diagnosis of having a ruptured disc and foraminal stenosis on the left at C5-6. He
has done pretty well since his surgery. I am not sure why there is any difference
in opinion about treatment since his history, his physical findings and his surgical
findings all fit fairly well for a herniated disc at C5-6.”
In a decision dated February 27, 2007, the Office reviewed the merits of appellant’s case
and denied modification of its prior decision. The Office found that Dr. Williams failed to
provide adequate medical rationale for his opinion regarding causation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.2

1

5 U.S.C. §§ 8101-8193.

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

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Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence means a physician’s reasoned opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion of the physician must be based on a complete factual and medical
background of the claimant,4 must be one of reasonable medical certainty,5 and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.6
ANALYSIS
The opinion offered by Dr. Williams, appellant’s neurosurgeon, is not well reasoned. It
may be that physical findings and surgical findings all fit fairly well into the picture of a
herniated disc at C5-6. But that is not enough to connect the herniated disc to appellant’s
employment as a food inspector. Dr. Williams stated that the history fit fairly well, but he did
not explain how the repetitive motion of appellant’s arms, outstretched in front of him with
weight, aggravated the herniated disc and caused a need for medical care and surgery. He did
not discuss the pathomechanical process, the biomechanics of this aggravation. The only real
connection Dr. Williams made with the employment was that appellant began having neck pain
radiating into the left arm “while at work.” The mere fact that a condition manifests itself or
worsens during a period of federal employment, however, raises no inference of causal relationship
between the two.7
The Board finds that Dr. Williams’ opinion is not sufficiently reasoned to establish the
element of causal relationship.8 The opinion of Dr. Schultz, the second-opinion neurologist,
raises more questions. He found no evidence that the disc findings on MRI scans were caused by
inspecting chickens. Indeed, Dr. Schultz reported that appellant’s disc findings appeared chronic
in nature with a disc/osteophyte complex that appeared more related to degenerative disc disease
and chronic arthritic changes, not an acute injury. The Board will affirm the denial of
compensation.

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

Steven R. Piper, 39 ECAB 312 (1987). There is a distinction between temporal and causal relationships. The
former may be necessary but not sufficient for the latter.
8

See Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954) (medical
conclusions unsupported by rationale are of little probative value).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty, as alleged. The medical opinion evidence does
not establish the critical element of causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2007 and November 28, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.T., Appellant
and
U.S. POSTAL SERVICE, MIDDLE VILLAGE
POST OFFICE, Staten Island, NY, Employer
__________________________________________

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

Docket No. 17-1642
Issued: January 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 24, 2017 appellant, through counsel, filed a timely appeal from a May 25, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on March 20, 2016 causally related to the accepted November 12, 2015 employment
injury.
FACTUAL HISTORY
On November 12, 2015 appellant, then a 54-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he tripped over a postal container and
sustained an injury to his right side, including injuries to his shoulder, elbow, knee, and hand.
He stopped work on November 13, 2015. On December 15, 2015 OWCP accepted appellant’s
claim for sprain of the right middle finger and contusion of the right knee. Appellant received
continuation of pay benefits and returned to full-duty work on December 10, 2015.
Appellant submitted an unsigned note dated March 7, 2016 indicating that he was
diagnosed with lumbar radiculopathy/spinal stenosis and would be able to return to work fullduty without restrictions on March 14, 2016. A March 14, 2016 unsigned note indicated that
appellant could return to work on March 21, 2016.
In reports dated March 7 and 22, and April 19, 2016, Dr. Vasilios Kountis, a Boardcertified physiatrist, diagnosed radiculopathy and spinal stenosis of the lumbar region. He
treated appellant with a right lumbar epidural steroid injection.
In a March 28, 2016 report, Dr. Yakov Perper, a Board-certified anesthesiologist and pain
management physician, diagnosed radiculopathy in appellant’s lumbar region and spondylosis
without myelopathy or radiculopathy, lumbosacral region.
Appellant filed an occupational disease claim (Form CA-2) on April 4, 2016, alleging
that his lumbar disc bulge from L2-4 and disc herniation from L5-S1 were causally related to
factors of his federal employment.3
On June 22, 2016 appellant filed a claim (Form CA-2a) alleging a recurrence of the
November 12, 2015 employment injury. He indicated that he stopped work on March 20, 2016.
In support of his claim, appellant submitted medical reports from the office of Dr. Nancy
Lavine, a Board-certified internist, dated from March 7 through April 19, 2016, discussing
treatment for low back pain. In the March 7, 2016 note, Dr. Lavine indicated that appellant had
fallen at work in November 2015 and injured his whole right side, that he was initially evaluated
for his right knee, and that some of the pain subsided except for the lower back. Her treatment of
appellant included an L4-5 transforaminal epidural steroid injection given on April 29, 2015.
By letter dated August 18, 2016, OWCP informed appellant that further information was
necessary to support his recurrence claim. Appellant was afforded 30 days to submit this
information.
3

OWCP has not issued a decision regarding this occupational disease claim.

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In response, appellant submitted continuing claims for compensation (Form CA-7). He
also submitted responses to questions propounded by OWCP and discussed the history of his
injury and medical treatment. Finally, appellant submitted a note by Dr. Kountis wherein he
advised that appellant had lumbar radiculopathy and was currently out of work.
By decision dated November 28, 2016, OWCP denied appellant’s claim for a recurrence.
It determined that appellant did not establish a spontaneous change or worsening of his accepted
conditions.
On January 4, 2017 appellant requested a review of the written record by an OWCP
hearing representative.
In a February 5, 2016 electromyogram/nerve conduction velocity (EMG/NCV) study
report, Dr. Florence Shum, an osteopath, found electrophysiologic evidence of a subacute
bilateral L5 and S1 radiculopathy, worse on the left side.
In a February 19, 2016 report of a magnetic resonance imaging (MRI) scan of the lumbar
spine, Dr. Ronald Wagner, a Board-certified radiologist, found L1-2 posterior central left
paracentral disc herniation; L2-3 and L3-4 grade 1 retrolisthesis an L4-5 posterior annular bulge;
L5-S1 posterior disc herniation; and scoliotic curvature of the lumbar spine convex to the left.
On April 19, 2016 Dr. Kountis noted that he administered a transforaminal epidural
steroid injection on April 14, 2016, that appellant reported that he felt significantly better
immediately after the procedure for the next two days, but that numbness in his right leg had
returned along with the pain and numbness in his lower back.
In May 16 and August 23, 2016 reports, Dr. Kountis diagnosed lumbar region
radiculopathy and lumbar region spinal stenosis. He administered multiple lumbar epidural
steroid injections from May 16 to August 23, 2016.
In a December 23, 2016 report, Dr. Daniel Savarino, an osteopath, diagnosed
radiculopathy, lumbar region and spinal stenosis, lumbar region. He noted that appellant was
complaining of a lot of pain in his lower back. Dr. Savarino noted that appellant had stated that
the steroid injections only provided relief for about one week at a time.
In an April 5, 2017 discharge note, Dr. John A. Bendo, a Board-certified orthopedic
surgeon, noted that on April 3, 2017 appellant underwent an L4-5 laminectomy. He indicated
that appellant was evaluated by physical and occupational therapy and his pain was controlled.
Dr. Bendo noted that appellant gave a history of a trip and fall on the job, that he initially had
right leg numbness that progressively worsened, and that in February 2016 his symptoms
worsened to include lower back pain.
By decision dated May 25, 2017, the hearing representative determined that appellant had
not met his burden of proof to establish a recurrence of disability due to his November 12, 2015
employment injury.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness, without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.4
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of its
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.5 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history, as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.6
In the absence of rationale, the medical evidence is of diminished probative value.7 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.8
ANALYSIS
OWCP accepted that as a result of a November 12, 2015 employment injury, appellant
sustained a sprain of the right middle finger and a contusion of the right knee.
On June 22, 2016 appellant filed a claim alleging a recurrence of the November 12, 2015
employment injury commencing March 20, 2016 when he had stopped work.
The Board finds that appellant has not established a recurrence of disability commencing
March 20, 2016 causally related to his November 12, 2015 employment injury.

4

J.F., 58 ECAB 124 (2006).

5

M.C., Docket No. 15-1762 (issued August 26, 2016).

6

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

7

Id., Robert H. St. Onge, 43 ECAB 1169 (1992).

8

Ricky S. Storms, 52 ECAB 349 (2001).

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The Board has found that, when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA.9
The evidence appellant submitted to support a recurrence is found to discuss diagnoses
relative to appellant’s back. However, the Board notes that appellant did not mention any injury
to his back in his original claim form. Furthermore, appellant returned to full-duty work on
December 10, 2015.
The first notation of an injury to appellant’s back is a February 5, 2016 EMG/NCV
report, wherein Dr. Shum found subacute bilateral L5 and S1 radiculopathy, worse on the left
side. This was followed by a lumbar scan conducted on February 19, 2016, wherein Dr. Wagner
found L1-2 posterior central-left paracentral disc herniation, L2-3 and L3-4 grade 1 retrolisthesis,
an L4-5 annual bulge, and L5-S1 posterior disc herniation and scoliotic curvature of the lumbar
spine convex to the left. These diagnostic studies are of limited probative value. Although these
opinions establish a medical diagnosis, they do not address any relationship between these
diagnoses and appellant’s accepted injury of November 12, 2015.10 The issue of whether a
claimant’s disability is related to an accepted condition is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to his or her employment injury and
supports that conclusion with sound medical reasoning.11 As these reports fail to meet that
standard, they are insufficient to establish appellant’s claim.
None of the other physicians of record provided support for a recurrence of disability
related to appellant’s November 12, 2015 accepted employment injury. Although Dr. Kountis
reported that appellant fell at work in November 2015, he never provided a rationalized medical
opinion linking this fall to his diagnoses of radiculopathy and spinal stenosis of the lumbar
region.12
Similarly, Dr. Lavine, although briefly mentioning the November 15, 2015 employment
injury, does not link appellant’s low back pain to the accepted employment injury. Dr. Bendo
also briefly notes the employment injury, but fails to discuss causation. Drs. Perper and Savarino
do not discuss appellant’s employment injury at all. The Board has found that any medical
evidence that does not offer an opinion regarding the cause of the employee’s condition is of
limited value on the issue of causal relationship.13

9

A.M., Docket No. 09-1895 (issued April 23, 2010).

10

See G.M., Docket No. 14-2057 (issued May 12, 2015).

11

See L.M., Docket No. 17-0159 (issued September 27, 2017).

12

Id.

13

L.L., Docket No. 17-0908 (issued September 11, 2017).

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OWCP also received an unsigned report discussing appellant’s lumbar condition. The
Board, however, has found that unsigned reports are insufficient to meet appellant’s burden of
proof because they lack identification and cannot be considered probative medical evidence.14
To establish that a claimed recurrence of a condition was caused by the accepted
employment injury, medical evidence of bridging symptoms between the present condition and
the accepted injury must support a physician’s conclusion of causal relationship.15 Appellant
submitted no such evidence in this case and has, therefore, failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability on March 20, 2016 causally related to the accepted November 12, 2015 employment
injury.

14

P.C., Docket No. 17-0880 (issued October 13, 2017).

15

H.D., Docket No. 17-1165 (issued September 8, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2017 is affirmed.
Issued: January 17, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, Norfolk, VA, Employer
__________________________________________

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

Docket No. 14-200
Issued: April 7, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant filed a timely appeal from an October 21, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
foot injury as a result of a May 23, 2013 employment incident.

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2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the October 21, 2013 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On September 17, 2013 appellant, then a 27-year-old engineer, filed a traumatic injury
claim alleging that on May 23, 2013 he sustained a knot on his left foot and ankle when a door
slammed on his foot in the performance of duty. He stated that the condition worsened over time
to the point that he required surgery. Appellant stopped work on October 1, 2013.3
By letter dated September 18, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional evidence to establish that he
sustained a diagnosed condition as a result of the alleged May 23, 2013 employment incident.
Appellant submitted an October 10, 2013 request for authorization for diagnostic testing
and office visit report from Dr. William Grant, a podiatrist, who diagnosed tenosynovitis of the
foot and ankle, nontraumatic rupture of other tendons of the foot, talipes calcaneovalgus and
contusion of the foot. Dr. Grant recommended that appellant undergo a magnetic resonance
imaging (MRI) scan.
In a decision dated October 21, 2013, OWCP denied appellant’s traumatic injury claim.
It accepted that the May 23, 2013 incident occurred as alleged but found that the medical
evidence failed to establish a left foot or ankle condition causally related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the

3

The record reveals that appellant filed a previous traumatic injury claim (File No. xxxxxx574) for an August 10,
2013 incident.
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

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

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

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employment incident caused a personal injury.9 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.13
ANALYSIS
Appellant alleged that on May 23, 2013 he sustained an injury to his left foot as a result
of a door slamming on his foot. By decision dated October 21, 2013, OWCP denied his claim
finding insufficient medical evidence to establish that he sustained a left foot condition causally
related to the accepted May 23, 2013 employment incident. The Board finds that appellant did
not meet his burden of proof to establish that he sustained a diagnosed condition as a result of the
May 23, 2013 incident.
To support his traumatic injury claim, appellant submitted an October 10, 2013 report
from Dr. Grant, a podiatrist. While Dr. Grant diagnosed several left foot conditions, he provided
no history of injury or any medical opinion as to how the May 23, 2013 incident caused or
contributed to the diagnosed conditions. The issue of causal relationship is a medical question
that must be established by probative medical opinion from a physician.14 Appellant did not
submit sufficient medical evidence from a physician to support his claim that his left foot
conditions were caused by his employment. Therefore, the Board finds that OWCP properly
denied appellant’s traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 9.

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left foot injury causally related to the May 23, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2013 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: April 7, 2014
Washington, DC

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

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

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

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

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

Docket No. 07-885
Issued: June 24, 2008

Case Submitted on the Record

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

JURISDICTION
On February 12, 2007 appellant filed a timely appeal from the merit decision of the
Office of Workers’ Compensation Programs dated October 26, 2006 denying his request for a
schedule award of greater than 41 percent. He also filed a timely appeal of the January 12, 2007
nonmerit decision denying the request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction to review the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant has established that he has greater than 44 percent
of his right upper extremity, for which he received schedule awards; and (2) whether the Office
properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On July 30, 2002 appellant, then a 42-year-old flat sorting machine clerk, filed an
occupational disease claim alleging that he sustained an injury to his right shoulder as a result of
loading mail and lifting and pulling all-purpose containers, hampers and Tub-packs as part of his

federal employment. He indicated that he first became aware of the disease or illness on
June 17, 2002. By letter dated October 23, 2002, the Office accepted appellant’s claim for right
shoulder tendinitis, joint impingement and carpal tunnel syndrome. On November 12, 2002
appellant underwent a decompression of transverse carpal ligament for right carpal tunnel
syndrome. On April 1, 2003 appellant underwent an arthroscopy on the right shoulder. The
Office paid appropriate compensation and medical benefits.
On July 7, 2003 appellant filed a claim for a schedule award. By letter dated August 6,
2003, the Office stated that appellant was not entitled to a schedule award at that time as he was
currently under the care of a physician and had not yet reached maximum medical improvement.
In a report dated June 17, 2003, Dr. D.A. Minnis, a chiropractor, diagnosed postsurgical
release of right carpal tunnel syndrome with permanent residuals and applying the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),
determined that appellant had a 40 percent impairment of the right upper extremity. He reached
the same assessment in a report dated October 20, 2003.
In a medical note dated September 16, 2003, Dr. J. Michael Morgenstern indicated that
appellant had reached maximum medical improvement and was scheduled to return to his regular
work duties. The Office referred appellant’s case to the Office medical adviser, who by note
dated October 6, 2003 indicated that he had an impairment of the right upper extremity of
41 percent. He noted as follows:
“Drs. Morgenstern and Minnis have submitted reports to the medical record for
review. [Appellant] continues to complain of intermittent pain in the distribution
of the scar on the right wrist that radiates into the right thumb. Physical
examination demonstrated increased two-point discrimination in the right median
nerve innervated digits awarding 25 percent RUE PPI [right upper extremity
permanent partial impairment] for [G]rade 2 sensory deficit in the distribution of
the median nerve according to [T]ables 16-15, p[age] 492 and [T]able 16-10,
p[age] 482 of the [A.M.A., Guides, (5th ed.)]. Pinch strength measured 7.5 dg in
the right hand which is normal according to [T]able 16-33, p[age] 509 of the
A.M.A., Guides. Grip strength measured 18.2 kg [kilograms] which awards an
additional 20 percent RUE PPI according to [T]ables 16-31 and 16-34, p[age] 509
of the A.M.A., Guide[s].
“Regarding to the [right] shoulder, [appellant] continues to complain of
intermittent discomfort in the right shoulder especially with overhead activity
allowing two PPI for [G]rade 3 in the distribution of the suprascapular nerve
according [to] p[age] 492 and [T]able 16-10, p[age] 482 of the [A.M.A., Guides].
Physical examination demonstrated normal range of motion and strength in the
right upper extremity.
“Use of the [C]ombined [V]alues [C]hart on p[age] 604 gives a right upper
extremity of 41 percent. Date of MMI [maximum medical improvement] is
estimated to have occurred as of September 16, 2003 when he was released from
Dr. Morgenstern’s care.

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On October 6, 2003 appellant filed another claim for a schedule award. On January 8,
2004 the Office issued a schedule award in this case for a 41 percent impairment to the right
upper extremity. Furthermore, in a decision dated September 22, 2004, the Office issued a
schedule award to appellant for an additional three percent impairment to his right upper
extremity in a different case. Accordingly, appellant has received a total schedule award for 44
percent impairment of his right upper extremity.
Appellant requested an oral hearing and by decision dated August 26, 2004, the Office
hearing representative remanded the case for referral of him to a second opinion physician as he
found that there was no report in the record that accurately reflected appellant’s degree of
impairment. He noted that the report of Dr. Minnis was insufficient to establish degree of
impairment as Dr. Minnis was a chiropractor and is not considered a physician under the Federal
Employees’ Compensation Act as he was not treating a subluxation of the spine as demonstrated
by x-ray. She further noted that Dr. Morgenstern had not provided a sufficient description of
impairment to the shoulder upon which to base a schedule award.
On November 24, 2004 appellant filed a claim for an additional schedule award. In
support thereof, he submitted a medical report dated November 20, 2004 wherein
Dr. Jacob Salomon gave the results of his physical examination, which included range of motion
measurements and muscle strength testing. Dr. Salomon stated:
“I shall utilize the [A.M.A. Guides] and give the [appellant] a rating and feel the
rating could best be attributed to the muscle strength weakness to best evaluate his
impairment due to the fact that we have done it a few times [three] to [four] times
and it was done by [two physicians] with the same results. We will utilize [T]able
16-35, page 510, [G]rade 4 for muscle weakness. So for flexion at [G]rade 4,
[appellant] would be 6 percent, abduction at [G]rade 4 would be 3 percent and
internal rotation at [G]rade 4 would be 2 percent to obtain 11 percent impairment
rating due to muscle strength weakness of the right shoulder, this would then be
combined by the 10 percent for the arthroscopic surgery on [T]able 16-7 of
resection arthroplasty. Using the combined charts in the back of the book to
obtain a total of 20 percent right shoulder impairment, then to obtain the total
right PPI by combining all the other conditions. The carpal tunnel did not change
so that was at 33 percent that will be 46 percent impairment that will combine by
the previous impairment for the right elbow of 9 percent using the combined
charts of the back of the book, to obtain a total right PPI of 54 percent. He stated
that there was a previous rating given to him of 41 percent. If indeed this is tru[e]
41 percent would be subtracted from the above with the remainder being the
current impairment rating that was not accounted for.”
By letter dated January 13, 2005, the Office referred appellant for a second opinion
evaluation. In a medical report dated April 14, 2005, Dr. Edward S. Forman listed his
impressions as status post right shoulder arthroscopic subacromial decompression and status post

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right carpal tunnel release. He found that appellant had a 33 percent permanent impairment of
the right upper extremity. Dr. Forman stated:
“According to [the] [A.M.A., Guides] [T]able 16-10 diminished light touch is
broken into different grades. At this time it is felt that [appellant] had a [G]rade 4
sensory deficit. This translates to 0 to 25 percent according to the [A.M.A.,
Guides]. In addition, [T]able 16-15 also in the [A.M.A., Guides], documents that
the maximum upper extremity (in layman’s term arm) impairment is due to one
side sensory deficit of the median nerve below the mid-forearm (the median nerve
extending down below the elbow) is 39 percent. In calculating these percentages
out the severity of the sensory deficit (25 percent) has been multiplied by the
maximum allowable upper extremity impairment (the amount of impairment
allowed for the arm) being 39 percent. An upper extremity impairment thus was
obtained of 10 percent. Grip strength which was also tested at this time is then
measured against [T]ables 16-31, 16-32 and 16-34 in the [f]ifth [e]dition of the
[A.M.A., Guides] to the right grip strength deficit. These values were 49 kg
minus 37 kg. This is divided by 49 kg equaling 24 percent of the strength loss.
Using additional tables in the [A.M.A., Guides] on the [C]ombined [V]alues
[C]hart on [p]age 604 corresponds to a partial permanent impairment for right
carpal tunnel syndrome of 32 percent. In regard to [appellant’s] [right] shoulder
the PPI determination based on [his] complaint of persistent pain even though he
does have full functional range of motion. According to [F]igures 15-40, 15-41,
15-43 and 15-46 document in the [A.M.A., Guides] there is no motor functional
deficit or impairment. According to [T]able 16-2 also of the [f]ifth [e]dition of
the [A.M.A., Guides] the suprascapular nerve corresponds with the supraspinatus
(a large nerve in the shoulder which corresponds with the supraspinatus one of the
four rotator cuff muscles) is consistent with a sensory deficit or pain of up to
[five] percent maximum examination impairment. In addition in determining the
impairment of the upper extremity (arm in layman’s term) due to sensory deficit
or pain according to [T]able 16-10, again in the [A.M.A., Guides, appellant] is a
[G]rade 4 with 25 percent sensory deficit. Multiplying this by the [five] percent
of the maximum upper extremity (arm) for impairment correlates with a [one]
percent upper extremity partial permanent impairment for the shoulder. Thus,
again using the [C]ombined [V]alues [C]hart on [p]age 604 of the [A.M.A.,
Guides, appellant] has been noted to have a 33 percent [PPI] of the right upper
extremity.”
On May 31, 2005 the Office found that appellant is not entitled to a greater schedule
award to the right upper extremity.
On September 19, 2006 appellant filed a claim for an additional schedule award.1

1

This claim references a date of injury of May 11, 2004, which would indicate that it was in reference to a
different claim by appellant for an injury to his left upper extremity. However, the file number assigned by the
Office was the file number for appellant’s June 17, 2002 injury i.e., file number 10-2013028.

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By letter dated October 5, 2006, the Office asked the Office medical adviser to determine
the extent of permanent impairment of the upper extremities pursuant to the A.M.A., Guides.
The Office medical adviser noted that appellant already had received an award for a 44 percent
permanent impairment to the right upper extremity. In a report dated October 9, 2006, the Office
medical adviser opined:
“From my review of the medical records, [appellant] has been generously
awarded 41 RUE PPI primarily based on a sensory deficit and grip weakness as
residua from his carpal tunnel surgery. While determining that PPI is often more
art than science, I do not find substantive objective data to support any increase in
this PPI after review of all the additional medical data….
“Therefore, there is no objective evidence to support any increase in the 41
percent RUE PPI already awarded. Date of MMI remains September 16, 2003.”
By decision dated October 26, 2006, the Office denied appellant’s claim for an additional
schedule award to the right upper extremity.
In a form dated December 2, 2006 and postmarked December 8, 2006, appellant
requested an oral hearing. By decision dated January 12, 2007, the Office denied appellant’s
request for an oral hearing as it was not timely filed. The Office further reviewed appellant’s
request under its discretionary powers and determined that the issue could equally well be
addressed by requesting reconsideration from the Office and submitting evidence not previously
considered.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations,3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, the Office has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.4 Office procedures direct the use of
the fifth edition of the A.M.A., Guides, issued in 2001, for all decisions made after
February 1, 2007.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

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The standards for evaluation of the permanent impairment of an extremity under the A.M.A.,
Guides are based on loss of range of motion, together with all factors that prevent a limb from
functioning normally, such as pain, sensory deficit and loss of strength. All of the factors should
be considered together in evaluating the degree of impairment.6 Chapter 16 of the fifth edition of
the A.M.A., Guides provides a detailed grading scheme and procedures for determining
impairments of the upper extremities due to pain, discomfort restricted motion, loss of sensation
or loss of strength.7 Chapter 16 specifies that flexion, extension, abduction, adduction, internal
rotation and external rotation are all to be considered in evaluating impairments of shoulder
motion.8 The A.M.A., Guides provides specific grading schemes for rating upper extremity
impairments due to restricted motion, including a lack of flexion and extension of the shoulder.9
Section 8123 of the Act provides that, if there is 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.10
ANALYSIS
Appellant has already received two schedule awards for impairment to his right upper
extremity. On January 8, 2004 the Office issued a schedule award in this case for a 41 percent
impairment of the right upper extremity. Furthermore, in a decision dated September 22, 2004,
the Office issued a schedule award for an additional 3 percent impairment to the right upper
extremity, for a total of 44 percent.
Dr. Minnis, appellant’s chiropractor, determined that appellant was entitled to a
40 percent impairment of the right upper extremity, which is less than the amount he was
awarded. At any rate, the Office properly determined that this report was not medical evidence
as Dr. Minnis, a chiropractor, is not considered a physician under the Act.11
However, the Board finds that a conflict in medical opinion arose between the opinion of
Dr. Salomon, appellant’s physician, who opined that appellant had a 54 percent impairment of
his right upper extremity and that of the second opinion physician, Dr. Forman, who found a
33 percent impairment of the right upper extremity.
6

See Paul A. Toms, 28 ECAB 403 (1987).

7

A.M.A., Guides, Chapter 16, The Upper Extremities, pages 433-521 (5th ed. 2001).

8

Id. at page 474, paragraph 16.4i, Shoulder Motion Impairment.

9

Figure 16-40, page 476 of the A.M.A., Guides is entitled Pie Chart of Upper Extremity Motion Impairments
Due to Lack of Flexion and Extension of Shoulder. Figure 16-43, page 477 of the A.M.A., Guides is entitled Pie
Chart of Upper Extremity Motion Impairments Due to Lack of Abduction and Adduction of Shoulder. Figure
16-46, page 479 of the A.M.A., Guides is entitled Pie Chart of the Upper Extremity Motion Impairments Due to
Lack of Internal and External Rotation of Shoulder.
10

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

11

In the absence of a diagnosis of spinal subluxation, a chiropractor is not considered a physician and the report is
of no probative value. Thomas R. Horsfall, 48 ECAB 180 (1996).

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In determining that appellant had a 54 percent impairment of his right upper extremity,
Dr. Salomon noted that, in the last impairment rating of appellant, he had a 33 percent
impairment rating for carpal tunnel syndrome and that this rating had not deteriorated. He also
noted that appellant’s right elbow remained at 9 percent impairment. Dr. Salomon then found an
11 percent impairment based on a Grade 4 impairment to appellant’s right shoulder; specifically
noting 6 percent for flexion, 3 percent for abduction and 2 percent for internal rotation. He then
noted a 10 percent impairment for arthroscopic surgery. Using the combined values tables, he
indicated that this yielded a 20 percent right shoulder impairment. When Dr. Salomon combined
this finding with the prior 33 percent impairment due to carpal tunnel syndrome he found a
46 percent impairment. He then combined the 9 percent impairment due to the right elbow and
found that this yielded a 54 percent impairment.12 Dr. Forman, however, found that appellant
established a 33 percent impairment of his right upper extremity based on a 1 percent upper
extremity impairment for the shoulder and a right carpal tunnel syndrome impairment of
32 percent. He then noted no motor functional deficit or impairment.13 Finally, the Office
medical adviser determined that there was no objective evidence to support an increase above the
41 percent schedule award for the right upper extremity previously awarded. Accordingly, there
is an unresolved conflict between appellant’s physician, Dr. Salomon, and the second opinion
physician, Dr. Forman. The case must be remanded to the Office for referral to an impartial
medical examiner for resolution of the conflict.
CONCLUSION
The case is not in posture for decision.14

12

For support thereof, Dr. Salomon specifically mentions utilizing the A.M.A., Guides, Figures 16-46, page 510
and Table 16-7.
13

Dr. Forman utilized the A.M.A., Guides, Figures 15-40, 15-41, 15-43 and 15-46 for determining no motor
functional deficit or impairment. He utilized Table 16-10 to determine that appellant had a sensory deficit of
1 percent upper extremity impairment for the shoulder.
14

In light of the resolution of this issue, the issue with regard to oral hearing is moot.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 26, 2006 and January 12, 2007 are vacated and this case
is remanded to the Office for further consideration consistent with this opinion.15
Issued: June 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

15

By decision dated February 15, 2007, the Office denied appellant’s request for reconsideration. As appellant
filed his appeal before this Board on February 12, 2007 and the Office and the Board cannot have jurisdiction over
the same issue at the same time, this decision is null and void. Therefore, any decision issued during the pendency
of appellant’s appeal before this Board is null and void. Douglas E. Billings, 41 ECAB 880, 895 (1990).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SACRAMENTO VETERANS
ADMINISTRATION MEDICAL CENTER,
Mather, CA, Employer
__________________________________________

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

Docket No. 12-741
Issued: December 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 15, 2012 appellant filed a timely appeal of the December 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contends that she was set up and used as a pawn in a power struggle
between two services. She was not given an opportunity to defend herself because her service
chief, Liz Bloom, failed to conduct an investigation.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 14, 2011 appellant, then a 45-year-old supervisory program support
assistant, filed a traumatic injury claim alleging that on August 17, 2011 she developed a severe
headache, mental confusion, dizziness and inability to walk after being notified by e-mail that
she was not selected for a nonsupervisory position. She further alleged that after working one
year under a very stressful condition she felt trapped and had a mental breakdown. Appellant
stopped work on the date of injury.
By letter dated September 21, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the factual and medical evidence she needed
to submit to establish her claim. Also, OWCP requested that the employing establishment
submit medical evidence in response to appellant’s claim.
In a September 30, 2011 letter, appellant stated that she did not file a grievance because
she was a supervisor. She described her work duties which primarily included providing staff to
administratively support several outpatient clinics under her supervision. Appellant was in the
midst of performing these work duties when she received a very troubling and disturbing e-mail
regarding a new position in her service area.
In medical reports dated August 30 through October 20, 2011, Dr. Connie L. Kimble, an
attending Board-certified internist, obtained a history that appellant had been overwhelmed and
felt hopeless since the denial of her transfer application. She shared an anonymous extremely
disparaging letter addressing problems employees had with her. Dr. Kimble advised appellant to
seek legal counsel as the letter appeared to be slanderous. She noted that appellant was removed
from her supervisory position, but was transferred to a specialty clinic that operated under the
same management. Appellant was essentially stripped of her previous responsibilities. She was
no longer a part of departmental meetings. Appellant received good reviews, but it was only the
hope of transferring that kept her going. She did not know how she would survive in the same
environment. Appellant had a panic attack when she received an e-mail denying her request for
a transfer. She had another attack while getting ready for work. Dr. Kimble advised that
appellant had anxiety state not otherwise specified and depressive disorder not elsewhere
classified resulting in her temporary total disability for work commencing August 17, 2011. She
opined that her condition was work related. Dr. Kimble observed appellant become
progressively depressed after she received the letter. She had become essentially nonfunctional
and at times catatonic.
In an August 17, 2010 emergency room discharge report, Dr. Gary A. Roberts, Boardcertified in emergency medicine, noted that appellant was treated for dizziness.
Appellant submitted a document with her name captioned from an unknown author. The
document contained several unsigned narrative statements, presumably from coworkers,
describing her unprofessional behavior towards her staff commencing July 2, 2010 which
rendered her an ineffective supervisor.
By letter dated November 2, 2011, OWCP requested that appellant submit additional
factual evidence explaining her nonselection for a nonsupervisory position, identifying the author

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of the captioned document and describing specific work activities that caused her stress and the
contents of the e-mail mentioned in her prior statement.
In a November 10, 2011 letter, appellant contended that she was the only certified
candidate who applied for a nonsupervisory position for which she was not selected. She hoped
that the position would allow her to get away from the false, unjust and negative cloud that
followed her. Appellant attributed her extreme stress to not being either notified about meetings
or invited to them. Her supervisor, an assistant chief and chief of service allowed her staff and
staff from other services to by-pass her about concerns that should have been redirected to her as
the first-line supervisor. Such actions made appellant’s job extremely difficult. She often
indirectly or by happenstance and rumor mill obtained information related to the meetings after
the fact. Because appellant was in disbelief about employees’ complaints about her, Assistant
Chief John Miller gave her a partial copy of their complaints which was produced by Dr. Eule,
chief of the primary care clinic. She contended that Chief Miller wanted her and another
supervisor to switch positions so that she could leave the primary care clinic. Appellant
contended that the primary care clinic was in the midst of reorganization and Dr. Eule used her
as a political and expendable pawn to gain an upper hand over Chief Bloom. He wanted to
handpick the new administration supervisor. Appellant contended that, although Dr. Eule got rid
of her, he did not get the person he wanted. Marlene Lewis, a human resource employee
relations specialist, reviewed the partial document given to appellant and disapproved of it. She
advised her to leave the primary care clinic. Appellant stated that moving out of the clinic did
not help her because the slanderous document was circulated throughout work.
In a November 10, 2011 letter, Robert E. Smith, a church deacon, stated that he had
known appellant for 11 years and was in awe of her Christian attitude and willingness to help
those in need. He noted that approximately eight months ago she appeared to be shutting down
and withdrawn. Appellant did not answer his telephone calls and she missed meetings. During a
September 30, 2011 meeting, Deacon Smith noticed that her appearance had changed as she was
not impeccably dressed as usual. Also, appellant was constantly in tears. Deacon Smith stated
that attempts to reach out to her were to no avail. He contended that the treatment appellant
received from coworkers affected her condition.
In a November 14, 2011 letter, Wayne Sheppard, a church member, stated that he had
known appellant for approximately 12 years. Appellant always performed exceptional work in
the church and her community. She was always upbeat, high spirited and attentive to her roles
and responsibilities. Appellant also used kind words and was overtly friendly and courteous
towards others. Approximately 12 months ago, Mr. Sheppard noticed an overall change in
appellant’s demeanor. Appellant had a melancholy deposition. Initially, she was reluctant to
discuss her situation with Mr. Sheppard. Eventually, appellant told him that she was having
issues and challenges at work that caused her to feel depressed and oppressed. She cried stating
that her work situation had worsened. Appellant’s depressive and oppressive state worsened as
she was no longer sociable, cheerful or upbeat. Mr. Sheppard stated that appellant stopped
coming to church. His wife, who was a registered nurse, informed him that appellant was in a
deep depression and perhaps on the verge of a nervous breakdown. Appellant stated that in a
meeting that she was under attack and scrutiny by her employer and coworkers for committing
unfair labor practices.

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In a November 16, 2011 letter, Loreen Gunn, an employee, related that when appellant
was removed from her work area in August 2010, she felt that she was not given a chance to
defend the allegations against her. Her demeanor changed as she became untrusting of everyone
in their department. Ms. Gunn stated that appellant’s demeanor was further exasperated by not
being selected for a nonsupervisory position in 2011.
In an August 15, 2011 letter, the employing establishment advised appellant that the
program specialist position she had applied for was given to another candidate.
Performance appraisals dated October 30, 2008 and October 27, 2010 indicated that
appellant received an excellent rating. An October 11, 2011 performance appraisal indicated that
she was rated as fully successful.
In a December 12, 2011 decision, OWCP denied appellant’s claim on the grounds that
she failed to establish any compensable employment factors.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.2 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially

2

Pamela R. Rice, 38 ECAB 838 (1987).

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

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

5

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

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assigned work duties of the employee and are not covered under FECA6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
ANALYSIS
Appellant alleged that she sustained an emotional condition due to several incidents at the
employing establishment. Primarily, she alleged instances of harassment and unfair treatment by
her supervisor, Chief Bloom, Assistant Chief Miller, Dr. Eule and her coworkers. OWCP denied
appellant’s emotional condition claim on the grounds that she did not establish any compensable
employment factors. The Board must, therefore, initially review whether these alleged incidents
and conditions of employment are covered employment factors under the terms of FECA.
Appellant contended that her supervisor, Chief Bloom, and Assistant Chief Miller created
a stressful work environment by failing to notify and include her in meetings. She stated that
they also allowed her staff and staff from other services to by-pass her about concerns that she
should have handled as a first-line supervisor. Appellant alleged that her coworkers wrote
slanderous statements about her supervisory actions. To the extent that disputes and incidents
alleged as constituting harassment by supervisors and coworkers are established as occurring and
arising from her performance of her regular duties, these could constitute a compensable
employment factor.11 However, for harassment and discrimination to give rise to a compensable
disability under FECA, there must be evidence that harassment or discrimination did in fact
6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

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

10

Id.

11

Charles D. Edwards, 55 ECAB 258 (2004).

5

occur. Mere perceptions of harassment or discrimination are not compensable under FECA.12
To establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.13 Appellant has not
submitted sufficient probative factual evidence to support her allegations of harassment. She
stated that she did not file a grievance against management for its actions. The statements from
Deacon Smith and Mr. Sheppard attributed the change in appellant’s physical appearance and
emotional condition to being attacked and scrutinized by her employer and coworkers regarding
unfair labor practices. However, the Board finds that these statements are general in nature and
do not describe any specific incidents of harassment by the employing establishment or
appellant’s coworkers. Appellant submitted statements from coworkers, which she deemed
slanderous regarding her supervisory actions. However, the Board notes that these statements
are not signed. The Board finds that this unsigned evidence is of diminished probative value as it
lacks proper identification.14 Based on the statements from Deacon Smith, Mr. Sheppard and
appellant’s coworkers, the Board finds that appellant has not established a factual basis for her
allegation that she was harassed. Therefore, she has failed to establish a compensable factor of
employment in this regard.
Appellant attributed her emotional condition to not being selected for the nonsupervisory
program specialist position and being transferred to another clinic. She contended that she was
transferred out of the primary care clinic because Dr. Eule used her as a political pawn to gain an
upper hand over Chief Bloom. The granting or denial of a request for a transfer15 and the
assignment of work16 are administrative functions that are not a compensable factor of
employment under FECA, absent error or abuse, as they do not involve her ability to perform her
regular or specially assigned work duties but rather constitute her desire to work in a different
position. Appellant did not submit sufficient evidence to establish that her employer acted
abusively or in error with regard to her position. Ms. Gunn stated that appellant’s demeanor
changed after she was removed from her work area in August 2010 without an opportunity to
defend the allegations against her and was not selected for the nonsupervisory position.
However, her statement does not establish error or abuse on the part of the employing
establishment in transferring appellant out of the primary care clinic and in not selecting her for
the position. The Board finds, therefore, that appellant has not established a compensable factor
of employment with respect to her transfer and nonselection.
Since appellant has not established a compensable work factor, the Board will not address
the medical evidence.17
12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
13

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

14

See Eugene J. Anderson, 40 ECAB 452 (1989).

15

See also Peter D. Butt, Jr., 56 ECAB 117 (2004); see Richard J. Dube, 42 ECAB 916, 920 (1991).

16

James W. Griffin, 45 ECAB 774 (1994).

17

Karen K. Levene, 54 ECAB 671 (2003).

6

On appeal, appellant contended that she was set up and used as a pawn in a power
struggle between two services. She was not given an opportunity to defend herself because
Chief Bloom failed to conduct an investigation. For reasons noted, the Board finds that appellant
did not establish a compensable factor of her employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish she sustained an emotional
condition in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greenville, MI, Employer
_________________________________________

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

Docket No. 13-70
Issued: May 20, 2013

Case Submitted on the Record

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

JURISDICTION
On October 10, 2012 appellant, through her attorney, filed a timely appeal from a
September 13, 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 appellant has established an injury in the performance of duty on
November 21, 2009.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated February 24, 2011,
the Board affirmed OWCP’s decisions dated January 15 and April 9, 2010.2 The Board found
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-1574 (issued February 24, 2011).

the medical evidence of record was insufficient to establish an injury causally related to the
November 21, 2009 employment incident of stacking and rearranging mail. The history of the
case as set forth in the February 24, 2011 decision is incorporated herein by reference.
By letter dated April 18, 2012, appellant requested reconsideration and submitted a
February 29, 2012 report from Dr. Kevin L. Trangle, a Board-certified internist, who provided a
review of the November 21, 2009 incident and the medical evidence and noted the compensation
proceedings. Dr. Trangle noted that appellant was not seen or examined. He opined that
appellant sustained injuries while working on November 21, 2009 noting that appellant had
immediate pain in the right shoulder and arm which supported causal relationship between the
duties performed and his symptoms. Dr. Trangle stated that the December 9, 2009 magnetic
resonance imaging scan showed a superior glenoid labral tear, and given the mechanism of
injury, the tear most likely occurred via direct causation. According to him, the same mechanism
of injury likely substantially aggravated the supraspinatus and infraspinatus tendinopathy and
acromioclavicular (AC) joint arthrosis. Dr. Trangle stated that the repetitive work activities
involved constant motion of the shoulder and caused impingement on the right side. As to the
neck, he opined that the employment injury most likely caused a substantial aggravation of C3-4
and C5-6 intervertebral discs with radiculopathy.
By decision dated September 13, 2012, OWCP reviewed the case on its merits and denied
modification. It found that the report of Dr. Trangle was insufficient to warrant modification of
the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that he or she
sustained an injury while in the performance of duty.3 In order to determine whether an
employee actually sustained an injury in the performance of duty, OWCP 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. The second component is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.4
Rationalized medical opinion evidence is medical evidence based on a complete factual
and medical background of reasonable medical certainty and supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5

3

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

4

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

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

2

ANALYSIS
In the present case, appellant submitted a February 29, 2012 report from Dr. Trangle,
who listed a history of the November 21, 2009 incident and reviewed medical evidence.
Dr. Trangle did not, however, examine appellant or provide results on physical examination.
The lack of any results on examination to support the opinion offered reduces the probative value
of the medical report.6
Dr. Trangle provided a speculative opinion on causal relationship without providing
medical rationale to support his stated conclusions. He listed a number of diagnoses, including
superior glenoid labral tear, and aggravation of supraspinatus and infraspinatus tendinopathy and
AC joint arthrosis, as well as aggravation of C3-4 and C5-6 intervertebral discs with
radiculopathy. Dr. Trangle did not clearly address how the work activity on November 21, 2009
“likely” contributed to each of these conditions. Medical opinions that are speculative and not
supported by adequate medical rationale are of diminished probative value and are insufficient to
meet appellant’s burden of proof.7
It is appellant’s burden of proof to establish an injury in the performance of duty on
November 21, 2009. The Board finds Dr. Trangle’s report is of diminished probative value on
the issue of causal relation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty on November 21, 2009.

6

See Dorothy M. Evans, 36 ECAB 212 (1984).

7

Carolyn F. Allen, 47 ECAB 240 (1995).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2012 is affirmed.
Issued: May 20, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, KELLY AIR FORCE
BASE, San Antonio, TX, Employer
__________________________________________

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

Docket No. 21-0216
Issued: December 3, 2021

Case Submitted on the Record

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

JURISDICTION
On December 3, 2020 appellant filed a timely appeal from a July 17, 2020 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. 2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $26,479.89, for the period October 1, 2010 through August 17, 2019 for which appellant
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 17, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

was without fault, because he concurrently received Social Security Administration (SSA) agerelated retirement benefits and FECA wage-loss compensation without an appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $ 334.07 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On December 21, 1993 appellant, then a 45-year-old delivery driver, filed a traumatic
injury claim (Form CA-1) alleging that on December 7, 1993 he sustained a back condition while
in the performance of duty. OWCP accepted the claim for displacement of lumbar intervertebral
disc without myelopathy and other intervertebral disc displacement. The record reflects that
OWCP paid appellant wage-loss compensation on the supplemental rolls as of June 3, 1995 and
on the periodic rolls as of June 16, 2002.
On September 20, 2018 OWCP provided SSA with a Federal Employees Retirement
System (FERS)/SSA dual benefits calculation form.
On November 5, 2018 OWCP received from SSA an October 17, 2018 form, which
showed SSA benefit rates with a FERS offset and without a FERS offset, from October 2010.
Beginning October 2010, the SSA rate was $999.00 with FERS and $905.00 without FERS,
beginning December 2010, the SSA rate was $999.00 with FERS and $905.00 without FERS,
beginning December 2011, the SSA rate was $1,035.00 with FERS and $938.00 without FERS,
beginning December 2012, the SSA rate was $1,053.00 with FERS and $954.30 without FERS,
beginning December 2013, the SSA rate was $1,417.00 with FERS and $968.00 without FERS,
beginning December 2014, the SSA rate was $1,441.00 with FERS and $985.00 without FERS,
beginning December 2015, the SSA rate was $1,441.00 with FERS and $985.00 without FERS,
beginning December 2016, the SSA rate was $1,445.00 with FERS and $988.00 without FERS,
and beginning December 2017, the SSA rate was $1,474.00 with FERS and $1,007.70 without
FERS.
On April 10, 2019 OWCP provided the SSA with another FERS/SSA dual benefits
calculation form.3
On May 6, 2019 OWCP received the completed form from SSA, which showed SSA
benefit rates with a FERS offset and without a FERS offset from October 10, 2010 to
December 2018. It was noted that, from May 1998 to October 10, 2010 and from September 2013
to September 2014, appellant received disability benefits. Beginning October 2010, the SSA rate
was $999.50 with FERS and $697.60 without FERS, beginning December 2010, the SSA rate was
$999.50 with FERS and $697.60 without FERS, beginning December 2011, the SSA rate was
$1,035.50 with FERS and $722.70 without FERS, beginning December 2012, the SSA rate was
$1,053.10 with FERS and $735.00 without FERS, beginning September 2014, the SSA rate was
$1,417.30 with FERS and $989.20 without FERS, beginning December 2014, the SSA rate was
$1,441.30 with FERS and $1,006.00 without FERS, beginning December 2015, the SSA rate was
$1,441.30 with FERS and $1,006.00 without FERS, beginning December 2016, the SSA rate was
3

SSA noted that disability was payable for the period January 1999 through September 2010.

2

$1,445.60 with FERS and $1,009.00 without FERS, beginning December 2017, the SSA rate was
$1,474.50 with FERS and $1,029.10 without FERS, and beginning December 2018, the SSA rate
was $1,515.70 with FERS and $1,057.90 without FERS.
On February 10, 2020 OWCP issued a preliminary overpayment determination that
appellant received an overpayment of compensation in the amount of $26,479.89 , because he
received FECA wage-loss compensation benefits concurrently with SSA age-related retirement
benefits from October 1, 2010 through August 17, 2019, without an appropriate offset. It provided
a calculation of the overpayment and found appellant without fault in the creation of the
overpayment because he was not aware, nor could he reasonably have been expected to know, that
it had paid compensation incorrectly. OWCP requested that appellant submit a completed
overpayment recovery questionnaire (Form OWCP-20) to determine a fair repayment method. It
also noted that he could request waiver of recovery of the overpayment, provided him with an
overpayment action request form containing appeal rights, and afforded 30 days for a response.
OWCP related in the preliminary notice that effective October 1, 2010 appellant’s SSA
rate was $999.00 with FERS and $905.00 without FERS, effective December 1, 2011 the SSA rate
was $1,035.00 with FERS and $938.00 without FERS, effective December 1, 2012 the SSA rate
was $1,053.00 with FERS and $954.30 without FERS, effective September 1, 2014 the SSA rate
was $1,417.00 with FERS and $989.20 without FERS, effective December 1, 2014 the SSA rate
was $1,441.30 with FERS and $1,006.00 without FERS, effective December 1, 2016 the SSA rate
was $1,145.60 with FERS and $1,009.10 without FERS, effective December 1, 2017 the SSA rate
was $1,474.50 with FERS and $1,029.10 without FERS, and effective December 1, 2019 the SSA
rate was $1,515.70 with FERS and $1,057.90 without FERS.
The FERS Offset Overpayment memorandum showed the overpayments that appellant
received from October 1, 2010 to August 17, 2019. From October 1 through November 30, 2010,
appellant received an overpayment of $189.03, from December 1 2010 through November 30,
2011, he received an overpayment of $1,131.10, from December 1 2011 through November 30,
2012, he received an overpayment of $1,170.40, from December 1 through 31, 2012, he received
an overpayment of $1,288.52, from September 1 through November 30, 2014, he received an
overpayment of $1,283.40, from December 1, 2014 through November 30, 2015, he received an
overpayment of $5,237.95, from December 1, 2015 through November 30, 2016, he received an
overpayment of $5,252.30, from December 1, 2016 through November 30, 2017, he received an
overpayment of $1,643.70, from December 1, 2017 through November 30, 2018, he received an
overpayment of $5,359.48, and from December 1, 2018 through August 17, 2019, he received an
overpayment of $3,924.00, for a total overpayment of $26,479.89.
On March 3, 2020 appellant completed the Form OWCP-20 and provided supporting
financial documentation. He listed his monthly income as $1,380.00 in SSA benefits. Appellant
listed monthly expenses totaling $2,381.31. He listed total liquid assets of $40,857.34
By final overpayment decision dated July 17, 2020, OWCP determined that appellant had
received an overpayment of compensation in the amount of $26,479.89, because a portion of his
SSA age-related retirement benefits was based on credits earned while working in the Federal
Government and that this portion of his SSA benefits was a prohibited dual benefit. It further
found that he was not at fault in the creation of the overpayment, but denied waiver of recovery of

3

the overpayment. OWCP noted that appellant responded to the preliminary overpayment
determination and found that he had monthly income of $1,380.00 from SSA and $1,336.28 from
FECA, for a total monthly income of $2,716.28. It further found that he had monthly expenses of
$2,381.31, which resulted in an excess of monthly income over expenses in the amount of $354.97.
OWCP explained that the overpayment could not be waived because there was no evidence to
substantiate that adjustment or recovery would defeat the purpose of FECA or be against equity or
good conscience. It required recovery of the overpayment by deducting $334.07 every 28 days
from appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment has been made to an
individual 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 the indiv idual is entitled.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation.
As noted, a claimant cannot receive both wage-loss compensation benefits under FECA
and SSA age-related retirement benefits attributable to federal service for the same period. The
concurrent receipt of FECA benefits and SSA age-related retirement benefits is a prohibited dual

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997). See F.F., Docket No. 19-1198 (issued April 19, 2021); N.B., Docket
No. 18-0795 (issued January 4, 2019).

4

benefit.9 In this case, OWCP was notified by SSA that appellant had concurrently received FECA
benefits and SSA age-related retirement benefits attributable to his federal service, without an
appropriate offset. Consequently, the fact of overpayment has been established.
Although the Board finds that the fact of overpayment has been established, the Board
further finds that the case is not in posture for decision with respect to the period(s) and amount of
the overpayment. On November 5, 2018 OWCP received a completed FERS/SSA dual benefits
calculation form that contained monthly SSA benefits rates beginning December 2010 with and
without FERS contributions. However, on May 6, 2019, OWCP received another completed
FERS/SSA dual benefits calculation form, which contained different amounts. OWCP’s FERS
Offset Calculation Worksheet contained SSA rates with and without FERS that did not exactly
match either of the rates as reported on the forms received from SSA on November 5, 2018 or
May 6, 2019. Furthermore, the Board notes that SSA indicated that appellant had received
disability benefits during the period September 2013 to September 2014. It remains unclear
whether OWCP accounted for his receipt of disability benefits in its overpayment calculation. The
Board has held that, in overpayment cases, it is essential that OWCP provide the recipient of
compensation with a clear statement showing how the overpayment was calculated. 10 Therefore,
the Board finds that the case is not in posture for decision regarding the period(s) and amount of
the overpayment.
Accordingly, the case shall be remanded for OWCP to determine the proper period(s) and
amount of the overpayment of compensation based on the correct SSA age-related retirement
benefit rates for the period(s) during which the overpayment occurred. It shall then issue a new
preliminary overpayment determination, with an overpayment action request form, Form OWCP20, and instructions for appellant to provide supporting financial information. After this, and other
such further development as deemed necessary, OWCP shall issue a de novo decision.11
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits without an appropriate offset. The Board further finds that the case is
not in posture for decision with respect to the period(s) and amount of the overpayment.

9

FECA Bulletin No. 97-09 (February 3, 1997); see also A.V., Docket No. 20-0774 (issued June 10, 2021); see also
N.B., id.
10

See A.V., id.; see A.P., Docket No. 19-1671 (issued February 22, 2021); J.M., Docket No. 18-1505 (issued
June 21, 2019); Teresa A. Ripley, 56 ECAB 528 (2005).
11

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot. See C.C., Docket No. 16-1190
(issued May 12, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: December 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6