United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF DEFENSE, DIA-DEFENSE
DISTRIBUTION REGION -- EAST,
New Cumberland, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 10-1051
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from a February 22, 2010 merit
decision of the Office of Workers’ Compensation Programs concerning schedule award
compensation.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has more than eight percent impairment of his right arm,
for which he received a schedule award.

1

Appellant did not appeal from the Office’s November 4 and October 19, 2009 decisions and the Board will not
review those decisions.

FACTUAL HISTORY
On December 11, 2007 appellant, then a 44-year-old distribution process worker, injured
his lower back and right wrist after pulling carts. The Office initially accepted a lumbar sprain
and right wrist sprain and subsequently accepted a right scapholunate tear. Appellant stopped
work for intermittent periods and returned to work at limited-duty full time.
On November 10, 2009 appellant filed a claim for a schedule award. In a September 2,
2009 report, Dr. James J. Sullivan, an osteopath and Board-certified physiatrist, reviewed
appellant’s history and treatment and provided findings on examination. He noted that July 29,
2008 wrist x-rays were negative while an October 20, 2008 right wrist magnetic resonance
imaging (MRI) scan showed complete disruption of the scapholunate ligament with widening of
the scapholunate interval, “mild tendinopathy of the ECU tendon” and “mild tenosynovitis of the
ECR tendons.” He diagnosed chronic right wrist pain and decreased function secondary to the
work injury. Appellant had reached maximum medical improvement with seven percent
impairment of the right arm under the standards of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides).
Dr. Sullivan evaluated appellant’s wrist condition under Table 15-3 (Wrist Regional Grid) on
pages 395-97. He found appellant met the criteria for “ruptured muscle/tendon” under Class 1
since he had residual functional loss with normal motion. Under functional history adjustment
for the upper extremities, Dr. Sullivan found the QuickDASH score of 89 corresponded to Grade
Modifier 4 or a “very severe problem” under Table 15-7, page 406. He advised that appellant
had a Grade Modifier 2, which constituted a moderate problem, as he was able to perform
activities of daily living independently with some element of discomfort. Dr. Sullivan indicated
that the Grade Modifier 4 would be disregarded as page 411 of the A.M.A., Guides allows a
grade modifier that is either unreliable or inconsistent to be disregarded and eliminated from the
calculation. Under physical examination adjustment for the upper extremities, he found that
appellant had a Grade Modifier 2 under Table 15-8, page 408 as moderate palpatory findings
were consistently documented and there was 1.5 centimeter atrophy of right forearm and 2
centimeter atrophy of the right upper arm on examination. Under clinical studies adjustment,
Dr. Sullivan found appellant had a Grade Modifier 2 under Table 15-9, page 410, as the clinical
studies identified moderate pathology consistent with the diagnosis of “complete disruption of
the scapholunate ligament” by MRI scan. He applied the net adjustment formula under page
411. Dr. Sullivan found that (Grade modifier for physical examination -- class of diagnosis) +
(Grade modifier for clinical studies -- class of diagnosis) equaled (2-1) + (2-1) which equaled +2.
He noted that the default value (Grade C) for ruptured muscle/tendon of the wrist under Table
15-3, page 395 was five percent impairment and since the net adjustment was + 2, this totaled a
Grade E or seven percent impairment. In an October 16, 2009 addendum, Dr. Sullivan reviewed
additional records and stated his impairment rating and rationale were unchanged.
The Office referred the medical record, to Dr. Craig Uejo, a Board-certified occupational
medicine physician and an Office medical adviser, for evaluation of appellant’s right arm
impairment.
In a February 5, 2010 report, Dr. Uejo reviewed the medical evidence and found that
appellant reached maximum medical improvement on September 1, 2009, the date of
Dr. Sullivan’s evaluation. He found that appellant had eight percent permanent impairment of

2

the right arm under the A.M.A., Guides. Dr. Uejo agreed with Dr. Sullivan’s use of Table 15-3
of the A.M.A., Guides, but disagreed with the diagnosis used. He stated the correct diagnosis
was “wrist sprain,” with an eight percent default rating, as the injury was associated with a
ligament disruption, not a tendon rupture. Dr. Uejo noted that the injury was to the scapholunate
ligament and not the tendon. While tendinopathy was noted, there was no disruption of a tendon
supported on wrist imaging. Dr. Uejo stated that, while Dr. Sullivan did not provide specifics
regarding carpal instability on radiographic reporting, he gave the benefit of doubt, and accorded
a Class 1 rating for “mild” instability at the wrist based on the MRI scan finding of complete
scapholunate ligament disruption. Under functional history adjustment Table 15-7 and section
15.3a on page 406, he agreed with Dr. Sullivan that appellant’s QuickDash score was unreliable,
based on the fact the grade modifier score differed by two or more grades from that defined by
the physical examination and clinical studies. For the physical examination adjustment, Dr. Uejo
found that under Table 15-8, page 408 appellant had a Grade Modifier 1 as the physical
examination revealed “mild” motion loss of the wrist and 1.5 centimeter forearm atrophy. He
excluded the reported upper arm atrophy as the injury involved the wrist. Under clinical studies
adjustment, Dr. Uejo found under Table 15-09, page 410-11 that appellant had a Grade 1
modifier as the diagnostic study used to confirm the diagnosis showed mild pathology since no
specific degree of wrist instability was noted and there was normal range of motion (ROM) in
the wrist. Dr. Uejo found that the adjustment for function history grade modified was not
applicable; there was physical examination adjustment of 1, and clinical studies adjustment of 1.
He stated that the net adjustment compared to Diagnosis Class 1 was zero, which was a Grade C
or eight percent upper extremity impairment. Dr. Uejo noted that a ROM impairment could not
be considered as a stand alone rating since there was no ratable impairment for motion loss when
compared to motion measurements in the opposite or normal left wrist.
By decision dated February 22, 2010, the Office granted appellant a schedule award for
eight percent impairment of the right arm. The award ran for 24.96 weeks from September 1,
2009 to February 22, 2010.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, however, does not specify the manner in which the percentage
loss of a member shall be determined. The method used in making such determination is a
matter which rests in the sound discretion of the Office. For consistent results and to ensure
equal justice, the Board has authorized the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
Office as a standard for evaluation of schedule losses and the Board has concurred in such

2

5 U.S.C. §§ 8101-8193.

3

adoption.3 Effective May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides,4
published in 2008, as the appropriate edition for all awards issued after that date.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).7 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.8
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain, a right wrist sprain and a
right scapholunate tear. On November 10, 2009 appellant filed a claim for a schedule award.
Dr. Sullivan found that appellant had seven percent impairment of the right upper
extremity. Under Table 15-3, page 395, he identified the impairment class of the diagnosed
condition (CDX) as ruptured muscle/tendon.
The Office medical adviser reviewed
Dr. Sullivan’s report and stated that the correct diagnosis was wrist sprain as the injury was
associated with a ligament disruption not a tendon rupture. He explained the injury was to the
scapholunate ligament and not a tendon. The October 20, 2008 right wrist MRI scan showed a
complete disruption of the scapholunate ligament. While a mild tendinopathy was also noted on
MRI scan, no disruption of any tendon was reported. As the medical evidence does not support a
ruptured tendon, the Office medical adviser properly explained his basis for rating impairment
and not relying on that of Dr. Sullivan. The Office medical adviser’s calculation resulted in a
finding of greater impairment than that calculated by Dr. Sullivan.
Based on Dr. Sullivan’s physical examination, an Office medical adviser applied the sixth
edition of the A.M.A., Guides to rate eight percent impairment of the right arm. Under Table
15-3, he identified the impairment class for the diagnosed condition (CDX) as wrist sprain/strain
3

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

FECA Bulletin No. 09-03 (issued March 15, 2009).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
6

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

Id. at 494-531 (6th ed. 2008).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

and assigned a Class 1 rating for mild instability at the wrist based on the finding of complete
scapholunate ligament disruption on MRI scan. The Office medical adviser agreed with
Dr. Sullivan that under Table 15-7 and section 15.3 a Grade Modifier 4 for functional history
(GMFH) was unreliable as the grade modifier score differed by two or more grades from that
defined by the physical examination and clinical studies. Under Table 15-9, page 410-11, he
found Grade Modifier 1 for clinical studies (GMCS) as the diagnostic study used to confirm the
diagnosis showed mild pathology as no specific degree of wrist instability was noted and the
wrist had normal ROM. Under Table 15-8, page 408, the Office medical adviser found that a
Grade Modifier 1 for mild loss of motion of the wrist and 1.5 centimeter forearm atrophy on
physical examination (GMPE). He then utilized the net adjustment formula and found that there
was zero net adjustment. Thus, the Office medical adviser properly concluded that appellant had
a Grade C or eight percent upper extremity impairment.
The Board finds that the Office medical adviser’s report establishes that appellant has
eight percent impairment of the right arm. The record does not contain any probative medical
evidence to establish greater impairment under the sixth edition of the A.M.A., Guides. On
appeal, appellant’s attorney argued that the Office medical adviser erred in discounting right
upper arm atrophy as noted by Dr. Sullivan on physical examination. The Board noted that
Dr. Uejo explained that as the injury was to the wrist, the upper arm atrophy was excluded.
There is no evidence of record to support that the right upper arm atrophy was caused or
contributed by the accepted wrist injury. Appellant appears to argue that all impairing conditions
should be combined, the Board has noted that the A.M.A., Guides provide for rating the most
impairing condition and only in rare cases should multiple impairments be combined.9 The
medical evidence establishes eight percent right arm impairment due to the accepted right wrist
injury.
CONCLUSION
The Board finds that appellant has no greater than eight percent right upper extremity
impairment.

9

H.P., 62 ECAB ___ (Docket No. 10-962, issued November 10, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORATAION SECURITY
ADMINISTRATION, St. Augustine, FL,
Employer
__________________________________________

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

Docket No. 15-1682
Issued: December 22, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On August 4, 2015 appellant, through counsel, filed a timely appeal of a February 6,
2015 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was
docketed as No. 15-1682.
The Board has duly considered the matter and finds that the case is not in posture for
decision as the case record submitted to the Board is incomplete. The imaged record forwarded
to the Board contains only the first page of the February 6, 2015 final decision on appeal. This
page indicates that OWCP found an overpayment of $38,389.73 due to an incorrect pay rate, and
waiver of the overpayment was denied. The single page is clearly not the entire decision, as it
refers to an enclosed memorandum providing the “reasons” for the decision. OWCP also
indicated that the overpayment would be recovered “in the manner described in the attached
enclosure.”
A proper review of the case and adjudication of the issues by the Board requires a
complete record of the relevant evidence.1 The record is incomplete as the actual decision on
1

See Terence M. Gore, Docket No. 94-0464 (issued June 26, 1995).

appeal has not been properly imaged, identified, and submitted to the Board as part of the case
record. The case will be remanded to OWCP for proper reconstruction and assemblage of the
record. After such proper assemblage of the record, OWCP should issue a merit decision to
protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2015 is set aside and the case remanded to OWCP for
action consistent with this order of the Board.
Issued: December 22, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Waco, TX, Employer
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___________________________________________ )
J.F., Appellant

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

Docket No. 08-1182
Issued: June 18, 2009

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 January 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs hearing representative’ decision dated December 17, 2007, which
affirmed the Office’s July 30, 2007 decision that terminated her compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether the Office properly terminated appellant’s compensation
benefits effective July 30, 2007.
FACTUAL HISTORY
On February 5, 2003 appellant, then a 57-year-old clerk, filed a traumatic injury claim
alleging that on that same date she fell out of a chair with rollers and injured her right wrist and
arm, in the performance of duty. She did not stop work; however she returned to a modified
position.1 The Office accepted appellant’s claim for lumbar strain, cervical strain, right shoulder
1

File No. xxxxxx571.

strain, right knee strain, left foot contusion and aggravation of carpal tunnel syndrome.
Appellant underwent right shoulder arthroscopy and subacromial decompression on
October 16, 2003. She received appropriate compensation benefits including wage-loss
compensation for periods of disability.2
The record reflects that on February 10, 2005, Dr. Anthony Hicks, a Board-certified
internist, advised that appellant could return to work with restrictions for six hours per day. He
indicated that her conditions remained employment related as Dr. Hicks continued to recommend
modified duty. On April 1, 2005 he placed appellant off work, pending chronic pain
intervention. Appellant was returned to modified duty and accepted a modified position on
October 3, 2005. Dr. Hicks continued to treat appellant and place her on modified restrictions.
The Office continued to develop the claim and by letter dated December 14, 2005,
referred appellant for a second opinion, along with a statement of accepted facts, a set of
questions and the medical record to Dr. Robert Chouteau, an orthopedic surgeon and osteopath
for a second opinion examination. In a report dated on December 27, 2005, Dr. Chouteau noted
appellant’s history of injury and treatment. He opined that appellant was able to return to work
on a full-time basis without restrictions. Dr. Chouteau advised that there were no residuals of the
work-related conditions.
On January 19, 2006 the Office found that Dr. Chouteau’s report created a conflict with
the opinion of appellant’s attending physician, Dr. Hicks on the issues of the nature and extent of
any ongoing residuals of the work injury and appellant’s ability to work.
On February 8, 2006 the Office referred appellant along with a statement of accepted
facts and the medical record to Dr. Robert Holladay, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in medical opinion regarding the resolution
of appellant’s accepted condition and work restrictions.
In a March 3, 2006 report, Dr. Holladay, noted appellant’s history of injury and
treatment. He opined that there were no residuals of the accepted injuries and advised that she
was capable of returning to work for eight hours a day and advised that she had mild limitations
of reaching and working overhead.
In a March 21, 2006 report, Dr. Hicks requested authorization for treatment with
percutaneous neuromodulation therapy.
In an April 3, 2006 report, Dr. Holladay stated that he was asked to clarify his prior report
regarding appellant’s ability to work. He opined that she was able to work for eight hours per
2

On November 27, 2006 appellant filed a claim for a November 16, 2006 traumatic injury where she injured her
right shoulder while lifting a file. The Office accepted the claim for right shoulder and upper arm sprains.
File No. xxxxxx618. It doubled this claim with File No. xxxxxx571 on July 17, 2007 after it issued pretermination
notice on June 26, 2007, with regard to terminating benefits relative to the February 5, 2003 injury, but before it
terminated benefits on July 30, 2007. Consequently, to the extent that the Office intended to terminate benefits for
both the February 5, 2003 and November 16, 2006 injuries, appellant was not afforded pretermination notice
required under Office procedures. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter
2.1400.6 (a) (March 1997). Thus, the Office’s termination decision only pertains to the February 5, 2003 injury.

2

day with some overhead and reaching restrictions. Dr. Holladay advised that appellant’s
restrictions were not from her employment injury but were due to “her current disease of life
conditions.” The Office proposed to terminate appellant’s benefits on April 6, 2006.
By letter dated April 21, 2006, the Office advised appellant that a telephone call was
made to Dr. Holladay requesting clarification with regard to appellant’s work restrictions in view
of the physician’s opinion that work-related injury had resolved.
By decision dated May 9, 2006, the Office terminated appellant’s compensation and
medical benefits effective May 13, 2006. It found that, based on the weight of medical evidence,
appellant was capable of working eight hours a day without restrictions.
In a report dated May 2, 2006, Dr. Hicks disagreed with Dr. Chouteau and opined that
appellant suffered from significant physical pain complaints and significant physical limitations.
Appellant requested a hearing that was held on January 25, 2007. She questioned the
validity of Dr. Choteau and Dr. Holladay’s reports. Appellant alleged that they had several
actions taken against them. In a letter dated February 7, 2007, she informed the Office that she
believed that Dr. Holladay’s report should not be utilized because the Office contacted him by
telephone to clarify his opinion and persuaded him to change his report.
By decision dated March 14, 2007, the Office hearing representative vacated the Office’s
May 9, 2006 decision. She found that the Office did not follow its procedures when it
improperly requested clarification from the impartial medical examiner by telephone and
determined that the report of Dr. Holladay should be disqualified. The Office hearing
representative remanded the case to the Office with instructions to reinstate appellant’s
compensation and benefits and to arrange for a new impartial examination to resolve the conflict.
In an April 13, 2007 report, Dr. Hicks continued to recommend restrictions for work. He
continued to treat appellant and submit reports in which he advised continued restrictions.
On May 7, 2007 the Office referred appellant along with a statement of accepted facts
and the medical record to Dr John Sklar, Board-certified in physical medicine and rehabilitation,
for an impartial medical evaluation to resolve the conflict in opinion between Dr. Choteau and
Dr. Hicks.
In a June 19, 2007 report, Dr. Sklar noted appellant’s history of injury and treatment. He
examined appellant and reported findings which included widespread generalized tenderness to
palpation, which was severe in the bilateral shoulder girdles, trapezeii, posterior cervical region,
right shoulder and right lateral forearm with mild to moderate tenderness in those areas on the
left. Dr. Sklar also noted that appellant’s shoulder range of motion was decreased in a
symmetrical pattern bilaterally with 145 degrees of abduction on the right and left and deep
tendon reflexes which were intact and symmetrical. He noted that the physical examination was
consistent with the diagnosis of fibromyalgia with predominant right shoulder and upper
extremity symptoms. Dr. Sklar explained that appellant had generalized loss of motion
involving both shoulders not just her injured right shoulder and opined that this “suggests that
the previous right shoulder injury has now resolved and that her ongoing complaints are due to
generalized chronic myofascial pain which is not a result of her compensable injuries.” He
3

opined that appellant’s current complaints were not due to her alleged compensable injuries
which had resolved. Dr. Sklar explained that the current complaints were due to “fibromyalgia
which is a disease of life not the effects of her compensable injuries. As such, then, in relation to
[appellant’s] compensable injuries I find no reason why she is not currently working on full duty
without restrictions.” He further noted that appellant’s employment injury had resolved that her
current condition would not preclude her working on full duty without restrictions.
On June 26, 2007 the Office proposed to terminate appellant’s compensation benefits on
the basis that the weight of the medical evidence, as represented by the report of Dr. Sklar,
established that the residuals of the February 5, 2003 work injury had ceased.
On July 22, 2007 appellant questioned Dr. Sklar’s findings and alleged that the Office
had a “vendetta” to terminate her benefits. She also questioned the diagnosis of fibromyalgia
and alleged that, if she did have fibromyalgia, her physician would have diagnosed her.
Appellant asserted that, if she had fibromyalgia, it was caused by the February 5, 2003 traumatic
injury. The Office also received a December 12, 2006 magnetic resonance imaging (MRI) scan
of the right shoulder read by Dr. Howard Klaskin, a Board-certified diagnostic radiologist, which
revealed rotator cuff tendinopathy without convincing evidence for tear and anterior cruciate
acromioclavicular joint arthritic changes and Type III acromion. A June 19, 2007 MRI scan of
the cervical spine read by Dr. James Remkus, a Board-certified diagnostic radiologist, revealed
findings to include a diffuse disc bulge at C4-5 and foraminal narrowing and an annual disc
bulge without foraminal encroachment at C6-7. In a February 13, 2007 report, Dr. Linden Dillin,
a foot and ankle surgeon, diagnosed right cervical radiculopathy and right shoulder impingement,
possible rotator cuff tear. He advised that appellant was on limited duty. The Office also
received reports from Dr. Hicks, dated June 22 and July 13, 2007, wherein he continued to place
appellant on limited duty.
By decision dated July 30, 2007, the Office terminated appellant’s compensation benefits
effective July 30, 2007.
On August 21, 2007 appellant requested an examination of the written record. The
Office also continued to receive reports from Dr. Hicks, wherein he continued to advise
restricted duty. In his August 10, 2007 report, Dr. Hicks repeated his previous restrictions and
which included no lifting over 10 pounds and opined that appellant was on permanent modified
duty.
By decision dated December 17, 2007, the Office hearing representative affirmed the
Office’s July 30, 2007 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation

3

Curtis Hall, 45 ECAB 316 (1994).

4

without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The Federal Employees’ Compensation Act5 provides that if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.6 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.7
ANALYSIS
The Office determined that a conflict of medical opinion existed regarding the resolution
of appellant’s accepted condition and her work restrictions based on the opinions of Dr. Hicks,
her physician, who supported an ongoing employment-related condition and disability and
Dr. Choteau, an Office referral physician, who opined that the employment-related condition had
resolved. Therefore, it properly referred appellant to Dr. Sklar, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict.8
In his June 19, 2007 report, Dr. Sklar noted examining appellant and reported findings
which included widespread generalized tenderness to palpation, which was severe in the bilateral
shoulder girdles, trapezeii, posterior cervical region, right shoulder and right lateral forearm with
mild to moderate tenderness in those areas on the left. He concluded that appellant’s findings
were consistent with fibromyalgia in the right shoulder and upper extremity. Dr. Sklar explained
that because appellant had generalized loss of motion effecting both shoulders and not just her
injured right shoulder, this supported that her right shoulder injury had resolved and that her
ongoing complaints were “due to generalized chronic myofascial pain which is not a result of her
compensable injuries.” He opined that appellant’s current complaints were due to “fibromyalgia
which is a disease of life not the effects of her compensable injuries.” Dr. Sklar concluded that
there was “no reason why she is not currently working on full duty without restrictions.” He
further noted that appellant’s employment injury had resolved. The Board finds that Dr. Sklar
analyzed the case record and provided his own findings on examination to support his conclusion

4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

5 U.S.C. §§ 8101-8193, 8123(a).

6

Id. at § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

7

Gary R. Sieber, 46 ECAB 215, 225 (1994).

8

Appellant was initially referred to Dr. Holladay. However, Dr. Holladay’s opinion was properly excluded as the
Office had an improper oral communication with him regarding a disputed issue, clarification of his opinion that
work-related residuals had resolved. Samuel Theriault, 45 ECAB 586 (1994) (the Office is only required to exclude
medical reports where the Office has had telephone contact with the impartial physician); see Carlton L. Owens,
36 ECAB 608 (1985) (oral communications between the Office and the impartial medical specialist on disputed
issues should not occur, as it undermines the appearance of impartiality).

5

regarding appellant’s accepted conditions.9 He also addressed, in detail, whether appellant’s
disability and residuals from her right shoulder condition had resolved. Dr. Sklar also explained
that appellant’s current complaints were not from her accepted injuries. The Board finds that
Dr. Sklar’s opinion is sufficiently well rationalized and based upon a proper factual background
such that it is entitled to special weight10 and establishes that there were no ongoing residuals of
appellant’s work injury of February 5, 2003.
In these circumstances, the Office properly accorded special weight to the impartial
medical examiner’s June 19, 2007 findings.
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Sklar’s opinion or create a new conflict. She submitted additional reports from Dr. Hicks,
who continued to opine that she had restrictions and was limited in her ability to work.
However, Dr. Hicks essentially reiterated previously stated findings and conclusions regarding
appellant’s condition. As this physician was on one side of the conflict that had been resolved,
the additional reports, in the absence of any new findings or rationale, were insufficient to
overcome the weight accorded to the report of the impartial medical examiner or to create a new
conflict.11
The record also contains diagnostic reports dated December 12, 2006 and June 19, 2007
and a February 13, 2007 report from Dr. Dillin. However, these reports do not specifically
support that appellant had a continuing work-related condition. Consequently, these reports are
of limited probative value.
Consequently, the weight of the medical evidence rests with Dr. Sklar and establishes
that appellant had no continued disability or residuals due to her accepted conditions from the
February 5, 2003 injury and, therefore, the Office met its burden of proof to terminate her
compensation benefits.12
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective July 30, 2007.

9

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the physician’s opinion are factors which enter into the weight of an
evaluation).
10

See Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008) (when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight).
11

See Jaja K. Asaramo, 55 ECAB 200 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

12

Appellant submitted additional evidence on appeal. However, the Board may not consider this evidence as its
review of the case is limited to the evidence of record which was before the Office at the time of its final decision.
See 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: June 18, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1783
Issued: September 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 25, 2015 appellant, through her representative, filed a timely appeal from an
August 3, 2015 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 the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.

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)(2014). 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 (2006). 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.

FACTUAL HISTORY
On July 18, 2014 appellant, then a 51-year-old mail handler (forklift operator), filed a
traumatic injury claim (Form CA-1) for depression and anxiety, which she attributed to an
alleged May 30, 2014 employment incident. She stopped work on June 5, 2014. Appellant
attached a June 18, 2014 statement/e-mail to her Form CA-1 describing a series of events
between May 30 and June 4, 2014 that ostensibly caused her claimed emotional condition.
Appellant indicated that on Friday, May 30, 2014 at approximately 10:00 p.m., she was
sitting on her forklift writing a few things down when she heard her name shouted out from
behind. She turned to see who called her and from a distance she observed a “[huge white dildo
with balls]” being waved from side to side. However, appellant could not see who was waving
the dildo. She then turned back around and finished what she was doing. A few minutes later,
appellant drove her forklift to the location where she observed the item being waved.3 In route,
she passed a supervisor of distribution operations (SDO), J.W., who was headed in the opposite
direction. They did not speak. Appellant then saw coworker, J.C., a custodian who was
sweeping. She asked J.C. if he had called her name, and he replied “No, just [T.A.] over there
having fun with a [d]ildo.” Appellant observed another coworker, E.D., standing nearby and
drove over to him and asked if he had called her name. E.D., a mail handler, told her “No” and
motioned towards T.A., another mail handler. Appellant then drove over to T.A. and asked if he
had called her name. He was reportedly laughing at the time and told her “no, I called [J.W.].”
Appellant then asked him who had waved the dildo. T.A. admitted to doing it. Appellant then
told him he could get into a lot of trouble doing something like that. She noted that T.A. again
denied calling her name, and instead claimed to have “called out [J.W.’s] name.” At that point,
appellant reportedly “left it alone.” She also stated that throughout the night she heard a couple
of the guys snickering and laughing as she drove by on a number of occasions.4
When appellant returned to work the following Monday (June 2, 2014) afternoon, she
encountered a coworker, J.K., waiting by the time clock. J.K. reportedly glanced in her direction
and gave her a “sneer, laugh.”5 Approximately a half hour later (3:25 p.m.), appellant
approached J.W. to inform him about what was going on. J.W. reportedly asked appellant if she
wanted to report what had happened, and she replied “not at this time.” Appellant also stated
that later in the evening as she approached T.A., he first chuckled at her with a big grin, but then
made a serious face as she drove by. When she passed him another time, appellant stated that
she just shook her head “like no.” About five minutes afterwards, appellant passed T.A. once
more and he reportedly motioned for her to come over and talk to him. After dropping off her
mail, appellant returned to see what T.A. wanted. She stated that he asked her what she meant
by that. Appellant assumed he was referring to her previous head shaking. She indicated that
she told T.A. that she did not believe his story about calling J.W.’s name, but he continued to
deny having called her name. According to appellant, T.A. told her that he did not know her that
way to do something of that nature. She also indicated that during their conversation, T.A. stated
that he did not think it was right for one of the other guys to show the dildo to one of the ladies
3

Appellant described her initial location as automated package processing system (APPS) 2, side 1. The incident
she observed occurred at APPS 2, side 2.
4

Appellant identified the individuals as H.S. and J.B.

5

J.K. was off duty on Friday, May 30, 2014.

2

on the semi-auto, but apparently “he’s got it like that.” Later on, J.K. reportedly walked by and
motioned for T.A. to leave because the two had been commuting together.
Appellant was off work on June 3, 2014, and when she resumed work on June 4, 2014,
she reportedly encountered T.A. and J.K. in the front parking lot around 2:45 p.m. She stated
that she was walking to the building’s front entrance when she heard an engine roaring behind
her. Appellant turned her head and observed J.K. driving his truck, with T.A. in the passenger
seat. As the truck passed her, J.K. reportedly turned his head towards her and revved the engine
and laughed. Appellant also reportedly observed T.A. laughing hysterically. At that point, she
decided she had had enough, and was not going to be taunted anymore. Appellant awaited
J.W.’s arrival and then informed him that she wanted to file a complaint and speak with R.M.,
the distributions operations manager.
As part of the employing establishment’s internal harassment investigation, appellant and
several of her coworkers provided statements regarding the May 30, 2014 incident. In a June 4,
2014 statement, T.A. indicated that on May 30, 2014 he was culling on APPS 2, side 2 when a
dildo fell out of the mail onto the belt. T.A. stated he took the item and called “[J.W.] out [and]
put it up in the air.” J.W. subsequently came over and took the dildo. And soon afterwards,
appellant came around and asked T.A. if he had something to show her. In response, T.A. asked
appellant what she was talking about. He then told her there was a dildo in the mail, that J.W.
took it, and now it was gone. T.A. indicated that appellant proceeded to tell him that all the guys
stated he had called her name. When he asked appellant who told her that, she reportedly
refused to identify the individual(s). Additionally, T.A. stated that he started to tell appellant that
he would not call her over to look at a dildo. He also reiterated that appellant would not tell him
who stated that he had called her name, and she reportedly told him not to worry about it because
they were just going to squash it. However, appellant brought the incident up again a few days
later.
According to T.A., the following Monday, June 2, 2014, appellant told him that she did
not believe him. T.A. indicated that she showed him where she had been parked on the forklift
when she thought she heard her name, and then looked back to see the dildo up in the air. He
stated that he asked her if he had ever been disrespectful to her before, to which she replied “no.”
T.A. then asked if they had ever had this type of conversation before, which appellant also
replied “no.” However, she reportedly told T.A. that it was too coincidental to turn around, see
the dildo up in the air, and then come around the machine (APPS) and hear everyone laughing.
T.A. stated that, while appellant believed it was directed at her, another coworker, E.T., was
there the entire time when he -- T.A. -- called J.W. to retrieve the dildo.
E.T. also provided a statement dated June 4, 2014. He recalled the incident with the
dildo, but identified a different date -- Thursday, May 29, 2014. E.T. indicated that T.A. called
him over after a dildo had fallen out of a package. He noted that T.A. was culling at the time and
had the dildo in a flat tub. T.A. further indicated that he was on a tow-motor at the time. He also
stated that as the machine was ending, T.A. stood up on a bulk mail container (BMC) and yelled
to J.W. E.T. reiterated that “[T.A.] yelled J.W.’s name.” Afterwards, E.T. drove off on his towmotor. Although he observed appellant and T.A. talking, E.T. stated he did not know what the
conversation was about. He specifically denied seeing or hearing any incident between the two
of them.

3

In an August 13, 2014 statement, J.W. indicated that on May 30, 2014 he was working on
side one of APPS 2 when T.A. called for his attention from side two of APPS 2. He noted that
T.A. was standing near the culling belt when he held up a sex toy in the air, which had
apparently fallen out of the mail. J.W. further indicated that he immediately went to side two
and confiscated the sex toy along with the packaging, and proceeded to place the item in patchup. According to him, that was the extent of his involvement.
E.D. also provided a statement dated June 4, 2014. He recalled the May 30, 2014
incident and noted that he was loading at APPS 2, side 2 and T.A. was culling. He further stated
that T.A. insisted on waving it around, and toying with it.6 ED. also indicated that another
manager, K.C., came around and reportedly knew about the object. Additionally, he noted that
appellant came by and told T.A. that he could get in a lot of trouble with that thing. E.D.
observed the two having a conversation, but he could not hear what else was stated. He
indicated that appellant did not look happy. E.D. further commented that T.A. treated the matter
as a joke, but should have just put the item in patch-up.
In his June 4, 2014 statement, J.K. noted that he had been off Friday (May 30, 2014) and
knew nothing of the incident. He also stated that he heard “today” that T.A. found a dildo in the
mail on Friday.
In an August 21, 2014 development letter, OWCP requested additional factual
information, as well as a comprehensive medical report regarding appellant’s claimed emotional
condition, including an opinion on causal relationship. Specifically, it asked appellant to provide
signed witness statements from anyone who could verify her allegations regarding the alleged
May 30, 2014 incident and subsequent taunting. OWCP also solicited information about any
related grievance and/or Equal Employment Opportunity (EEO) complaint she may have filed.
OWCP afforded appellant at least 30 days to submit the requested factual and medical
information.
Apart from the above-noted witness statements, OWCP did not receive any additional
factual information regarding the alleged employment incident(s).
Following the May 30, 2014 incident, Dr. Arthur first saw appellant on June 4, 2014, at
which time he prescribed medications. He noted she was unable to return to work because the
depression and post-traumatic symptoms affected her ability to concentrate, attend to tasks, relate
to others, and keep regular attendance. Appellant had a history of migraine headaches and a
previous depressive episode in 2012, which had resolved. Dr. Arthur diagnosed major
depressive disorder with aspects of post-traumatic stress disorder (PTSD) and generalized
anxiety disorder. He explained that the inappropriate and sexually harassing incident at work on
May 30, 2014 directly precipitated appellant’s depression and anxiety, as well as many of the
symptoms of acute PTSD. Dr. Arthur further noted that there had been no other stressors in
appellant’s life and she was previously quite stable. However, now she was in active treatment,
and totally disabled for any work at the employing establishment dating back to June 5, 2014.

6

In his June 4, 2014 statement, E.D. did not specifically mention a dildo, sex toy, or otherwise describe the
item/object T.A. reportedly waved around and toyed with.

4

A July 18, 2014 report from Dr. Gary K. Arthur, a Board-certified psychiatrist, noted that
appellant was a forklift operator who had worked for the employing establishment for 27 years.
Dr. Arthur also indicated that he had reviewed appellant’s Form CA-1. In his medical report, he
described a May 30, 2014 employment incident where appellant reportedly heard her name
called from behind her forklift, and as she turned she saw a male coworker waving a large dildo
with testicles at her. Dr. Arthur further noted that appellant immediately became shocked,
anxious, and embarrassed. He also reported that appellant observed other male coworkers who
laughed and smiled at appellant for the remainder of the day. Additionally, he reported a history
of similar behavior directed toward another female at the same postal facility. Dr. Arthur noted
that the male coworkers were supportive of the person waving the dildo and ignored appellant’s
distress. That same evening, appellant reportedly became increasingly depressed about the
incident and how belittling and embarrassing it was. He noted that she began having intrusive
memories about it, being hypervigilant and easily startled. Dr. Arthur also reported that
appellant feared further repercussions from other employees and/or supervisors if she filed a
complaint.
In a September 11, 2014 follow-up report, Dr. Arthur noted that he continued to treat
appellant and there had not yet been any improvement.
By decision dated September 23, 2014, OWCP denied appellant’s claim because she
failed to establish a compensable employment factor as the reputed cause of her claimed
emotional condition. In essence, OWCP found that while T.A. waved a dildo in the air on
May 30, 2014, he did not specifically direct it towards appellant. T.A. stated that he called out
the supervisor’s name -- J.W., -- not appellant’s. Additionally, appellant did not provide any
evidence to substantiate her claim that on May 30, 2014 T.A. intentionally called out her name to
show her the dildo. OWCP further found that appellant failed to establish the alleged incidents
of snickering/laughing and/or taunting on May 30, June 2 and 4, 2014. Consequently, OWCP
denied appellant’s emotional condition claim without having reviewed the medical evidence of
record.
Appellant timely requested a hearing, which was held before an OWCP hearing
representative on May 18, 2015. At the hearing, she indicated that she filed both a grievance and
an EEO complaint. Appellant also provided transcripts from two recent depositions regarding
the EEO complaint.7
E.D. was deposed on March 12, 2015 and testified that both he and appellant were about
the same distance (25 feet) from T.A. at the time of the May 30, 2014 incident. He was
operating a tow-motor and noted that T.A. picked up the dildo and waved it. E.D. did not
specifically recall T.A. saying anything. He described T.A. as a 30-year-old child, and noted that
he was never quiet. But again, E.D. did not remember if T.A. shouted at the supervisor or
appellant. He recalled that appellant came over and spoke to T.A., and he heard her say to T.A.
that he could get in trouble for that. But E.D. reportedly did not hear the rest of the conversation.
OWCP also received an October 29, 2014 statement from J.C., as well as a transcript of
his March 13, 2015 EEO deposition testimony. In his October 29, 2014 statement, J.C. indicated
7

However, the record does not include information regarding the final disposition of either the grievance or
appellant’s EEO complaint.

5

that his recollection of the May 30, 2014 incident was “sketchy at best.” He noted that the
incident occurred at APPS 2, side 2, and that T.A. was culling off the dumpers while he, J.C.,
was cleaning on the other side under the belts. He stated he did not see the dildo when it was
pulled from the mail. J.C. first noticed it on the upright behind T.A. Additionally, He indicated
that he heard T.A. call out to both J.W. and appellant, but he did not recall in which order. J.C.
also stated that all interactions from those calls occurred on the other side of the dumpers out of
his line of sight and well out of his hearing range. Appellant reportedly approached J.C. later,
but he did not recall their actual conversation. J.C. noted that appellant was upset, and believed
he even told appellant to file a grievance if she was that upset over the incident. He also stated
that he and appellant never had any further discussions on the subject.
In his March 13, 2015 EEO deposition, J.C. reiterated that he heard T.A. call out to both
appellant and J.W. At first he did not recall the order, but later on in the deposition J.C. stated
that T.A. first shouted the first name of J.W. and then shouted out appellant’s first name. He also
noted that T.A. shouted loud enough to be heard over the machinery. Afterwards, T.A.
reportedly walked to the other side of the dumpers, which was out of J.C.’s line of sight. He also
indicated that E.T. was there at the time loading dumpers. J.C. did not see K.C. in the vicinity.
He also stated that several hours passed before appellant came to talk to him.
In a May 27, 2015 follow-up report, Dr. Arthur noted that he continued to treat appellant
on a monthly basis since her injury. He reported ongoing signs of depression with low
motivation, easy fatigue, and loss of self-confidence and self-esteem. Dr. Arthur continued to
diagnose employment-related depression and generalized anxiety disorder, and noted that
appellant remained disabled. He also questioned whether appellant would be able to return to
her prior work location.
In an August 3, 2015 decision, the hearing representative affirmed OWCP’s
September 23, 2014 denial. She found there was insufficient evidence to establish that T.A.’s
actions were directed at appellant. The hearing representative acknowledged that J.C.’s account
of the incident supported appellant’s assertion that T.A. called out her name while waving the
dildo. However, she noted that T.A. denied appellant’s accusation, and several other witnesses
did not support her account of the incident. Consequently, the hearing representative found that
the May 30, 2014 dildo waving incident was not a compensable employment factor. She also
found that there was no evidence to substantiate appellant’s account of coworker harassment or
inappropriate action, including laughing and snickering at her on May 30 and June 2, 2014.
Additionally, there was also no evidence of appellant having been harassed and/or bothered in
the parking lot on June 4, 2014. Given that appellant had not established a compensable factor
of employment, the hearing representative affirmed the denial of her emotional condition claim
without reviewing the medical evidence of record.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed

6

compensable.8 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.9
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.10
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.11 Although related to the employment, administrative and personnel
matters are functions of the employing establishment rather than the regular or specially assigned
duties of the employee.12 However, to the extent the evidence demonstrates that the employing
establishment either erred or acted abusively in discharging its administrative or personnel
responsibilities, such action will be considered a compensable employment factor.13
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with
probative and reliable evidence.14 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, OWCP must base its
decision on an analysis of the medical evidence.15
ANALYSIS
On May 30, 2014 while taking notes during some “down time,” appellant reportedly
heard her first name called out from behind her. She turned around and saw someone at a
distance waving a dildo in the air. At the time, appellant did not know the identity of the
individual waving the dildo, but later learned that it was T.A. She also came to believe that he
was the one who called out her name. However, T.A. denied calling out appellant’s name, and
instead claimed to have called out the supervisor’s first name. The above-described incident, as

8

Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

9

Lillian Cutler, id.

10

See Kathleen D. Walker, 42 ECAB 603 (1991).

11

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

12

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

13

Id.

14

Supra note 8.

15

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).

7

well as some alleged taunting afterwards, reportedly caused or contributed to appellant’s
diagnosed major depressive disorder and generalized anxiety disorder.
Initially, the Board finds there are no Cutler allegations.16 Appellant did not specifically
attribute her claimed emotional condition to regular or specially assigned work duties or a
requirement imposed by the employment. The May 30, 2014 incident occurred during what
appellant described as “down time.” She did not attribute her claimed emotional condition to her
specific duties as a mail handler (forklift operator). Just prior to the incident appellant was
sitting on her forklift writing a few things down. And after observing the dildo being waved in
the air, appellant immediately turned back around and finished what she had been doing during
her “down time.” Based on her own description of the events, the Board finds that the May 30,
2014 incident did not involve appellant’s regular or specially assigned work duties or a
requirement imposed by the employment.
The essence of appellant’s complaint is that T.A. intentionally harassed her by calling out
her name and waiving a dildo in the air for her to see. She claimed to have been embarrassed
and ashamed that it was directed towards her. To the extent that incidents alleged as constituting
harassment or a hostile work environment are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.17 For
harassment to give rise to a compensable disability under FECA there must be evidence that
harassment did in fact occur.18 Allegations of harassment must be substantiated by reliable and
probative evidence.19 Mere perceptions of harassment are not compensable.20
The record establishes that T.A. waved a dildo in the air on May 30, 2014. The record
also supports that T.A. called out to the supervisor who then walked over to APPS 2, side 2 and
retrieved the dildo. However, the weight of the evidence does not support appellant’s claim that
T.A. waved the dildo for her benefit and called out her name. Apart from appellant, J.C. was the
only witness to have reportedly heard T.A. call out her first name. He stated that T.A. called out
both first names, the supervisor first and appellant second. But as previously noted, T.A.
repeatedly denied calling out appellant’s name. He indicated that the only name he called was
her supervisor’s. While appellant claims to have heard her name, she did not mention having
also heard her supervisor’s name. J.W. heard his name, but did not mention hearing appellant’s
name or any other names. Additionally, E.T. indicated that T.A. stood up on a BMC and yelled
his supervisor’s first name. Again, there was no mention of T.A. also yelling appellant’s name.
E.D., who was also in the vicinity, did not recall hearing T.A. call out any names.
Although J.C. substantiated appellant’s allegation, the Board finds that his October 29,
2014 statement and March 13, 2015 EEO deposition testimony are of limited probative value.
First, J.C. provided a statement some five months after the May 30, 2014 incident, and he
16

See supra note 9.

17

P.T., Docket No. 14-2011 (issued February 5, 2015); see also David W. Shirey, 42 ECAB 783, 795-96 (1991);
Kathleen D. Walker, supra note 10 at 603, 608.
18

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

19

Joel Parker Sr., 43 ECAB 220, 225 (1991).

20

Supra note 18.

8

described his recollections as “sketchy at best.”21 In his October 29, 2014 statement, J.C. could
not recall which order T.A. called out the two names. However, during his subsequent EEO
deposition, J.C. testified that he heard the supervisor’s name first, followed by appellant. It is
unclear how J.C. was able to recall additional details of the May 30, 2014 incident as it became
more remote in time.
Second, there is at least one other important detail that calls into question the accuracy
and reliability of J.C.’s witness statement(s). Appellant reported that he was the first person to
whom she had spoken following the May 30, 2014 incident. She claimed to have talked to him
within minutes of the incident, and before having spoken to T.A. In his October 29, 2014
statement, J.C. noted that appellant “approached [him] later” and he did not recall their actual
conversation. In his March 13, 2015 deposition, J.C. represented that appellant approached him
several hours later. In contrast, appellant stated that a few minutes after the incident as she was
headed to APPS 2, side 2, she saw J.C. and asked him if he had called her name. According to
her, J.C. replied “No, just T.A. over there having fun with a [d]ildo.” As evidence by his
statements, J.C. apparently did not recall this earlier encounter with appellant. Admittedly, his
October 29, 2014 recollection of the May 30, 2014 incident was “sketchy at best.”
The timing of J.C.’s statement and the above-noted inconsistencies with appellant’s
version of events calls into question the reliability of his statement that T.A. called out her name
on May 30, 2014. Consequently, the Board finds that the weight of the evidence does not
support appellant’s claim that T.A. called out her name and intentionally waved the dildo in the
air for her to see. The Board further notes that the mere fact that appellant filed an EEO
compliant and a grievance does not establish that she was subjected to workplace harassment or
that unfair treatment occurred.22
With respect to the alleged May 30, 2014 harassment by H.S. and J.B., appellant
provided nothing to substantiate her claim that they were snickering and laughing as she drove
by on a number of occasions. She also failed to substantiate her claim that on June 2, 2014, J.K.
glanced in her direction and gave her a “sneer, laugh” while standing by the time clock.
Appellant believed that this encounter was related to the May 30, 2014 incident. But according
to J.K.’s June 4, 2014 statement, he was not on duty May 30, 2014, and it was not until “today”
(June 4, 2014) that he learned T.A. had found a dildo in the mail that previous Friday. Lastly,
appellant failed to substantiate her claim that J.K. revved his engine as he passed her in the
parking lot on June 4, 2014. This reportedly occurred while T.A. was in the passenger seat
laughing hysterically. As noted, allegations of harassment must be substantiated by reliable and
probative evidence.23 Mere perceptions of harassment are not compensable.24 The Board finds
that appellant failed to establish the above-noted incidents of alleged harassment on May 30,
June 2, and June 4, 2014.

21

The Board also notes that the J.C.’s October 29, 2014 statement post-dated OWCP’s initial denial of the claim,
which was based in large part on appellant’s failure to establish that T.A. had called out her name.
22

Charles D. Edwards, 55 ECAB 258, 266 (2004); see supra note 7.

23

Supra note 19.

24

Supra note 18.

9

As the above analysis demonstrates, appellant has not established any compensable
employment factors. Moreover, she did not specifically implicate her regular or specially
assigned duties as a factor in her claimed emotional condition. Because appellant failed to
establish a compensable factor of employment, OWCP properly denied her claim without
addressing the medical evidence of record.25
CONCLUSION
Appellant has not established an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

25

Garry M. Carlo, supra note 15.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
T.B., Appellant

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

Docket No. 20-0158
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 28, 2019 appellant filed a timely appeal from an August 22, 2019 merit
decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). 1 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. 3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted so that he will have an
opportunity to establish his claim. The Board, in exercising its discretion, denies appellant’s request for oral argument
because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral
argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the
oral argument request is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 10, 2019 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.

ISSUES
The issues are: (1) whether appellant has established a permanent impairment of a
scheduled member or function of the body warranting a schedule award; and (2) whether OWCP
properly denied appellant’s request for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 7, 2017 appellant, then a 51-year-old inspector, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2017 he sustained a lacerated lower lip when he fell
while in the performance of duty. He stopped work on January 30, 2017.
On January 30, 2019 OWCP accepted the claim for laceration without foreign body of
lip, initial encounter.
On March 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a March 12, 2019 development letter, OWCP advised appellant that FECA provided a
schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if
such disfigurement was likely to handicap an individual in securing or maintaining employment.
It further provided instructions for submitting photographs of the claimed disfigurement. OWCP
requested that appellant complete an attached disfigurement award application form, and that he
arrange for an attending physician to complete and submit the f orm. No further response was
received.
By decision dated August 22, 2019, OWCP denied appellant’s claim for a schedule award
finding that the evidence of record failed to establish permanent impairment of a scheduled
member or function of the body.
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated October 10, 2019, OWCP denied appellant’s request for an oral hearing
as untimely filed. The decision noted that his request dated September 26, 2019, was not made
within 30 days of OWCP’s August 22, 2019 decision. As such, appellant was not entitled to a
hearing as a matter of right. OWCP considered a discretionary hearing, but declined to grant a
hearing, noting that he could instead file for reconsideration and submit new evidence establishing
an employment-related impairment due to his accepted January 30, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.4 To support a schedule award,
the file must contain competent medical evidence which shows that the impairment has reached a
4

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

2

permanent and fixed state and indicates the date on which this occurred, describes the impairment
in sufficient detail so that it can be visualized on review, and computes the percentage of
impairment in accordance with the A.M.A., Guides.5
Section 8107(c)(21) of FECA provides that payment of compensation not to exceed
$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap
the claimant in securing or maintaining employment. 6 OWCP procedures further provide that a
district medical adviser (DMA) will be asked to review such claims and to evaluate the employee’s
disfigurement. If the DMA finds that maximum medical improvement (MMI) has occurred, he or
she will review the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether MMI has occurred. If
the DMA finds MMI has occurred, the concurrence of the district director or assistant district
director must be obtained. Following the file review, the district director or assistant district
director will also write a memorandum which contains a description of the disfigurement. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award.
As noted above, section 8107(c)(21) of FECA provides that payment of compensation not
to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to
handicap the claimant in securing or maintaining employment. 8 The Board finds that OWCP
properly followed its procedures in determining that appellant was not entitle d to an award for
facial disfigurement. 9
In a development letter dated March 12, 2019, OWCP advised appellant of the
requirements for a schedule award. However, appellant did not submit medical evidence in

5

B.J., Docket No. 19-0960 (issued October 7, 2019).

6

5 U.S.C. § 8107(c)(21).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see J.S.,
Docket No. 19-1226 (issued December 23, 2019); see L.J., Docket No. 13-0104 (issued October 21, 2013).
8

5 U.S.C. § 8107(c)(21).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).

3

support of his claim for a schedule award. The Board thus finds that he has not met his burden of
proof.
Appellant may request a schedule award or increased schedule award for his facial
disfigurement at any time based on new medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary. 10 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion. 13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s September 26, 2019 request for
an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review; however, this was more than 30 days after OWCP’s
August 22, 2019 decision. 14 Section 8124(b)(1) is unequivocal on the time limitation for
requesting a hearing.15 As such, the request was untimely and appellant was not entitled to an oral
hearing as a matter of right.
The Board further finds that OWCP, in its October 10, 2019 decision, properly exercised
its discretionary authority by noting that it had considered the matter and denied appellant’s request

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. §§ 10.616, 10.617, and 10.618.

12

Id. at § 10.616(a).

13

J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).
14

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is illegible, the request will
be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
15

See M.M., Docket No. 19-1171 (issued October 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

4

for an oral hearing as his claim could be equally well addressed through a reconsideration
application.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts. 16 The Board finds that the evidence of record does not establish that OWCP
abused its discretion in denying appellant’s request for an oral hearing before an OWCP hearing
representative.17
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award. The Board further finds that OWCP
properly denied his September 26, 2019 request for an oral hearing as untimely filed pursuant to 5
U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 22, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

T.G., Docket No. 19-0904 (issued November 25, 2019); see Daniel J. Perea, 42 ECAB 214, 221 (1990).

17

J.G., Docket No. 19-0555 (issued March 14, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BORDER & CUSTOMS PROTECTION,
Richford, VT, Employer
__________________________________________

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

Docket No. 12-1661
Issued: January 2, 2013

Case Submitted on the Record

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

JURISDICTION
On August 1, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated July 13, 2012. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $1,962.08 for the period January 1 to 14, 2012 because she
received dual compensation benefits from the Office of Personnel Management (OPM) and from
OWCP; and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and ineligible for waiver of recovery.
FACTUAL HISTORY
Appellant, a 57-year-old border patrol officer, injured her right knee, right upper back,
shoulder and neck when she slipped on a patch of ice on January 30, 2008. She filed a claim for
benefits on January 31, 2008, which OWCP accepted for right brachial plexus contusion, upper-

back contusion, cervical strain and right cervical nerve root irritation. It paid compensation for
total disability and placed appellant on the periodic rolls.
On December 10, 2011 appellant elected to receive benefits from OPM, effective
January 1, 2012.
In a Form CA-1032 dated December 10, 2011, appellant notified OWCP that she was not
receiving any other federal benefits or payments, including OPM benefits.
In a notice of proposed termination dated December 28, 2011, OWCP informed appellant
that it was terminating her compensation because the medical evidence established that she no
longer had any residuals or disability stemming from her work injury.
A January 30, 2012 OWCP worksheet determined that appellant had incurred an
overpayment in the amount of $1,962.08 for the period January 1 to 14, 2012.
In a decision dated May 15, 2012, OWCP terminated appellant’s compensation benefits.
On May 16, 2012 OWCP made a preliminary determination that appellant received an
overpayment in the amount of $1,962.08 for the period January 1 to 14, 2012 due to her receipt
of dual benefits from OPM and under FECA. It found that she was at fault in the creation of the
overpayment. OWCP stated that appellant was aware or should have reasonably been aware that
she was in receipt of compensation benefits while recovering OPM benefits. Appellant was
advised that she could request a telephone conference, a final decision based on the written
evidence only or a hearing within 30 days if she disagreed that the overpayment occurred, with
the amount of the overpayment or if she believed that recovery of the overpayment should be
waived. OWCP requested that she complete an accompanying overpayment recovery
questionnaire (Form OWCP-20) and submit financial documents in support thereof within 30
days.
By letter dated June 12, 2012, appellant contended that she was not responsible for the
overpayment because the December 28, 2011 proposed termination notice indicated that she had
30 days to respond. She stated that because she received OPM benefits within this period, at a
time when she believed she was having her compensation terminated, the overpayment should be
waived.
In a decision dated July 13, 2012, OWCP finalized the overpayment of $1,962.08. It
found that she was at fault in the creation of the overpayment in the amount of $1,962.08 for the
period January 1 through 14, 2012. It directed recovery under the Debt Collection Act.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of FECA states that, while an employee is receiving workers’
compensation, he or she may not receive salary, pay or remuneration of any type from the United
States, except in return for services actually performed or for certain payments related to service
in the Armed Forces, including benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death being compensated for

2

under FECA.1 The implementing regulations provide that a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity.2 The beneficiary
must elect the benefit that he or she wishes to receive.3
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,962.08 for the period January 1 through 14, 2012.
Appellant received dual compensation from OPM in addition to wage-loss compensation she had
been receiving under FECA during this period. Consequently, any wage-loss compensation she
received from OWCP for a period beginning on or after January 1, 2012 constitutes an
overpayment of benefits. Appellant is not eligible to receive wage-loss compensation and
disability retirement benefits from OPM for the same time period.4 OWCP calculated the
amount of the overpayment by taking the monthly compensation she was due for the period
December 18, 2011 to January 14, 2012 and dividing it by half, to cover the two weeks she
received the overpayment during January 1 to 14, 2012.
Although appellant argues that OWCP did not finalize the termination of her
compensation benefits until May 15, 2012, this fact does not establish that appellant did not
receive an overpayment of compensation. The overpayment was based upon her election of
OPM benefits and continued acceptance of OWCP benefits during the January 2012 time period.
Appellant was entitled to either OPM retirement benefits or OWCP benefits but not both.
Accordingly, the Board finds that appellant received an overpayment of compensation in
the amount of $1,962.08 for the period January 1 through 14, 2012.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.6

1

5 U.S.C. § 8116(a).

2

20 C.F.R. § 10.421(a).

3

Id.

4

20 C.F.R. § 10.421(a); see Franklin L. Bryan, 56 ECAB 310 (2005).

5

5 U.S.C. § 8129(a)-(b).

6

Bonnye Mathews, 45 ECAB 657 (1994).

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In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
Failed to provide information which the individual knew or should have
known to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.”7
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provide in relevant part:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”8
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment.
OWCP found that appellant was at fault in the creation of the overpayment as she knew
or should have known that FECA benefits she received were incorrect. The record establishes
that on December 10, 2011 she notified OWCP on her Form CA-1032 that she was not in receipt
of any other federal benefits or payments, including OPM benefits. The form specifically
advised appellant to report all other income received, including other agencies of the Federal
Government; appellant checked a box indicating that she was not receiving income from other
federal agencies. On the same date, December 10, 2011, appellant elected to receive retirement
benefits from OPM, effective January 1, 2012. Appellant knew or should have known that her
acceptance of compensation benefits for periods after January 1, 2012 was incorrect, as she had
elected to receive OPM benefits commencing this period. She accepted payments after
January 1, 2012. As appellant accepted compensation benefits from OWCP which covered the
period January 1 through 14, 2012, the Board finds that she was at fault in the creation of the
overpayment and is not entitled to waiver.9
7

20 C.F.R. §10.433(a).

8

Id. at § 10.433(b).

9

Lawrence J. Dubuque, 55 ECAB 667, 673 (2004).

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With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where OWCP seeks recovery from continuing
compensation benefits under FECA.10 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.11
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,962.08 during the period January 1 through 14, 2012 because she received dual
compensation benefits from OPM and under FECA. The Board further finds that OWCP
properly found that appellant was at fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 2, 2013
Washington, DC

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

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

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

10

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

11

Cheryl Thomas, supra note 10.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tomah, WI, Employer
__________________________________________

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

Docket No. 16-1639
Issued: May 8, 2017

Case Submitted on the Record

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

JURISDICTION
On August 9, 2016 appellant filed a timely appeal from a July 15, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss, tinnitus,
and a consequential insomnia condition causally related to factors of his federal employment job
duties.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 10, 2016 appellant, a 38-year-old pharmacist, filed a claim for occupational
disease (Form CA-2), alleging that he developed an insomnia condition which was partly
attributable to work-related tinnitus and hearing loss.
OWCP received on May 11, 2016 a report dated January 13, 2016 from Dr. Christine
Jacobsen, a specialist in family practice. Dr. Christine advised that appellant believed that sitting
near a running air conditioner at work had caused ringing in his ears and hearing loss. She
reported that, because of this situation, appellant had experienced added pressure in his job and
in his home life, causing anxiety and insomnia.
In an October 6, 2015 report, received by OWCP on May 11, 2016, Dr. Jacobsen advised
that appellant was experiencing insomnia. She reported that this condition had been worsening,
and that he recently had panic-type symptoms while driving next to a truck and also had
experienced depression. Dr. Jacobsen asserted that, in light of the fact that his insomnia seemed to
be increasing with his stress load, she would recommend prescribing medication which could also
help depression.
In a November 8, 2015 report, received by OWCP on May 11, 2016, Dr. Jacobsen advised
that appellant had been experiencing insomnia and anxiety problems, but advised that the
medication she prescribed had been helping him sleep; he slept through the night most of the time
and only had occasional awakenings. Dr. Jacobsen noted that appellant believed he was better able
to handle his stressors when he was well rested, but he continued to be anxious and more irritable
then he would prefer.
In a December 11, 2015 report, Dr. Jacobsen advised that appellant was having problems
with his hearing. He reported that he had been seen by an audiologist five months previously and
was informed that he had borderline hearing, although he believed that his hearing had worsened
since then.
On May 16, 2016 OWCP advised appellant that it required additional factual and medical
evidence to determine whether he was eligible for compensation benefits. It asked him to submit
a comprehensive medical report from his treating physician describing his symptoms and the
medical reasons for his condition, and an opinion as to whether his claimed condition was
causally related to his federal employment, and a diagnosis of his claimed condition. OWCP
afforded appellant 30 days to submit the additional evidence.
On May 20, 2016 the employing establishment controverted the claim. It rebutted
appellant’s assertion that he had developed insomnia due to hearing loss brought on by working in
an office near a window air conditioner. Management noted that the window air conditioner was
recently evaluated by environmental health technicians, and the readings were normal. In addition,
the employing establishment noted that appellant was a pharmacist working in an office setting and
was not exposed to loud noises.
In a written statement dated June 13, 2016, appellant asserted that he had advised
Dr. Jacobsen that he experienced insomnia on October 6, 2015, which Dr. Jacobsen believed was

2

caused or worsened by anxiety or depression. He advised that he did not realize that his insomnia
was primarily worsened by tinnitus until January 2016. Appellant asserted that a running air
conditioner at work caused tinnitus from the middle of May until the end of June 2015. He
therefore believed that the air conditioner was an employment-related factor which contributed to
insomnia through tinnitus.
By decision dated July 15, 2016, OWCP denied appellant’s claim, finding that he failed to
submit medical evidence sufficient to establish an insomnia condition in the performance of
duty.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.3
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
Appellant has alleged that he was exposed to loud noise from a window air conditioner in
the building where he worked, which caused the tinnitus/hearing loss condition he believed was the
primary cause of his tinnitus. This assertion, was rebutted by management’s May 20, 2016 letter
indicating that the air conditioner was recently tested by environmental health technicians, which

2

20 C.F.R. § 10.5(q).

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

See Joe T. Williams, 44 ECAB 518, 521 (1993).

5

Id.

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recorded normal readings.6 In addition, appellant failed to submit a probative, rationalized
medical opinion containing a diagnosis causally related to this alleged exposure. The Board
finds that appellant has not submitted medical opinion evidence sufficient to establish a causal
relationship between a diagnosed condition and an accepted employment factor.
Dr. Jacobsen advised in reports dated October 6 and November 8, 2015 that appellant was
experiencing insomnia, which was worsening, in addition to anxiety and depression. She
prescribed medication to help him deal with these problems. In her December 11, 2015 report,
Dr. Jacobsen related that appellant was having problems with his hearing. She noted that he was
seen by an audiologist who told him that, five months previously, he had borderline hearing loss,
but it had become worse since then. Dr. Jacobsen advised in her January 13, 2016 report that
appellant believed that sitting near a running air conditioner at work had caused ringing in his
ears and hearing loss. She advised that, because of this situation, appellant had experienced
added pressure in his job and in his home life, causing anxiety and insomnia.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.7 The reports from Dr. Jacobsen are not sufficient to
meet appellant’s burden of proof as she did not present a rationalized opinion on the causal
relationship between appellant diagnosed condition and an accepted employment exposure. She
did not provide any medical reasoning to explain how and why she believed that appellant’s
exposure to loud noise could have caused or contributed to tinnitus or hearing loss, resulting in
insomnia. The January 13, 2016 report merely asserts that appellant believed that sitting near a
running air conditioner at work had caused ringing in his ears and hearing loss, and that his
conditions were caused by this exposure. Dr. Jacobsen’s opinion on causal relationship is of
limited probative value in that she did not provide adequate medical rationale in support of her
conclusions.8 Thus, the Board finds that appellant failed to meet his burden of proof as he failed
to provide a rationalized, probative medical opinion relating his current condition to factors of
his 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.

6

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

William C. Thomas, 45 ECAB 591 (1994).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed hearing loss, tinnitus, or a consequential insomnia condition causally related to factors
of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5