United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1029
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, f iled a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 49-year-old management assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2018 she experienced stress, anxiety,
nausea, and depression while in the performance of duty when her second-line supervisor informed
her that she was referenced in “graphic sexual harassment material.” She noted that she had also
received a death threat in August 2017. Appellant stopped work on February 14, 2018.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It also requested that she clarify whether she was claiming an occupational disease or
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a March 23, 2018 response, appellant related that, in her position as secretary treasurer
of the local union, she had uncovered questionable financial actions taken by the union. 3 An
outside audit had revealed improprieties and the union had been placed under Trusteeship.
Appellant alleged that, when officials came to assume control over the union, the union president,
R.R., yelled that it was because appellant was “f**king” those higher-ups in rank and “sleeping
around with them.” R.R.’s associates, C.L., B.S., and E.C., agreed with him and began to spread
this rumor throughout the office. Employees who were angry about the audit posted falsified
minutes of union meetings and a photograph of appellant from Facebook on bulletin boards at
work. Appellant also alleged that they vandalized her vehicle at work. Coworkers that appellant
did not know approached her and asked if she was sleeping with the man who took over the union.
Appellant further asserted that on August 17, 2017 someone had placed a death threat on
her office desk threatening her and her family and accusing her of being a “snitch b***h.” Her
home was vandalized with shattered glass bottles. Appellant sold her house quickly at a reduced
price because she was afraid. She further asserted that on February 12, 2018 her second-line
supervisor, S.B., called her into his office and informed her that “some extremely vulgar/graphic
images of pornography” altered to resemble her had been placed in various locations at work.
Appellant’s cellphone number was next to the face on the image with instructions to call the
number for a “good time.”
Appellant related that she had filed an Equal Employment Opportunity (EEO) complaint
after receiving the death threat. The Criminal Investigation Division (CID) and military police
(MP) had investigated the threat. They found that some parts of her claim did not deal with
employing establishment issues.
In a March 29, 2018 statement, appellant advised that her claim was for an occupational
disease rather than a traumatic injury. She attributed her condition to harassment, sexual
3

Appellant also submitted medical evidence in support of her claim.

2

harassment, a hostile work environment, death threats, vandalism, slander, and defamation of
character.
Thereafter, OWCP received a September 14, 2017 closed investigation report from the CID
of the employing establishment. M.L., the investigator, advised that an individual had placed a
letter on appellant’s desk, noting that “snitches get stitches” and threatening her and her family.
The investigator indicated that appellant “believed [that] the letter and other harassing incidents
were due to [appellant’s] reporting the misuse of [u]nion [f]unds,” but did not know who had put
the letter on her desk. Appellant gave M.L. a flyer showing a social media post accusing her of
making false accusations about the union after partying with union members. M.L. noted that the
former union president had been interviewed about the letter, but could not provide any
information. The investigator advised that the investigation was closed as no “logical leads or
suspects have been discovered….”
In a witness statement dated September 28, 2017, L.P. related that, during a union meeting
on July 6, 2017, R.R. had used profanity and accused appellant of sleeping with another individual.
In a February 6, 2018 e-mail, P.K. confirmed that on July 6, 2017 R.R. had used profanity and
vulgarity regarding appellant.
In a January 11, 2018 interrogatory, appellant related that on July 5, 2017 the local union
had been put under trusteeship after she had requested an external audit that found a
misappropriation of funds. Affected individuals had spread lies about her and placed pictures on
a bulletin board on August 10, 2017. Appellant reported the incident to her supervisor, S.S., who
tried to ascertain whether cameras covered the area. The plant manager, C.S., advised her that it
was a union matter and ignored her concerns. On August 14, 2017 an employee appellant did not
know yelled at her and asked if she was “f**king” the new union leader. On August 17, 2017 at
the start of her work shift, she found a death threat saying that snitches get stitches, that she and
her family would pay, and that she should die because she was a “snitch b***h.” Appellant did
not know who had left the threatening letter on her desk. She immediately reported the incident
to her supervisors.
On February 13, 2018 M.P., the employing establishment commanding officer, partially
dismissed appellant’s September 28, 2017 discrimination complaint. He found that the employing
establishment was not the proper agency for the incidents that had occurred at union meetings on
July 6 and 18, 2017 as well as an August 8, 2017 occurrence when a union vice president had
yelled at her and used profanity outside the workplace as the matters arose out of union concerns.
M.P. also dismissed appellant’s claim that she had to sell her residence on January 10, 2018 due
to vandalism as she had not shown damages by the employing establishment. He noted that an
investigation was pending into the February 12, 2018 placement of a pornographic flyer at work
with her name and cellphone number.
In an undated statement received on April 2, 2018, appellant related that, when she started
work in 2010, G.S., a coworker, had spread rumors that she had worked as a stripper and was a
kind of prostitute of the former manager. G.S. and C.H. had complained about what she wore to
work and her supervisor sent her home to change clothes. In 2012, appellant had undergone
treatment for cancer and G.S. had asserted that she was disgusting and leaving hair in the restroom.
G.S. made a hurtful comment after the death of her brother. On May 3, 2017 appellant requested

3

her supervisor’s help processing a document. When she returned to the office, G.S. and others
thought that it was unfair that she was being trained to process documents accurately.
In an April 27, 2018 letter, OWCP advised appellant that it was adjudicating her claim as
an occupational disease claim. It again requested that she provide the evidence necessary to
establish her claim as set forth in its February 23, 2018 development letter.
In a June 12, 2018 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of appellant’s
allegations and statements from the individuals referenced in the allegations, including G.S., R.R.,
C.L., B.S., and E.C. It further requested that it clarify whether she was on official time for the
July 6, 2017 union meeting or any of the other dates that involved union matters.
In a June 27, 2018 response, the employing establishment maintained that appellant’s
issues had begun over union matters and, thus, it had no authority to take corrective measures. It
noted that it was unaware of the findings of the CID, but that “no person was culpable in any
wrong-doing based on her allegations.” The employing establishment enclosed statements with
its response.
In a June 25, 2018 statement, C.L. advised that she was not at the July 6, 2017 union
meeting and had no knowledge of false union minutes posted on a bulletin board.
R.R. submitted a June 21, 2018 statement denying he was at the July 6, 2017 meeting and
advising that he had no knowledge of anyone placing union information on a bulletin board at
work. He indicated that he did not know whether appellant had used official time for the July 6,
2017 union meeting or other union activity.
In an undated statement, B.S. asserted that R.R. had not raised his voice or accused her of
sexual impropriety. He denied that anyone had posting false minutes of union meetings on the
bulletin board. B.S. also denied using vulgarity in reference to appellant.
In a June 28, 2018 statement, R.V. advised that on July 10, 2017 appellant had notified her
that “somebody had posted something bad about [appellant] on the bulletin board” and that R.R.
had stated inappropriate things about her at a union meeting. She did not want to file a complaint.
R.V. advised her to contact C.S., the plant manager. C.S. had informed her that he could
investigate who posted something on a bulletin board if she provided names, but that he had no
control over things that took place in union meetings. Appellant did not want to give the
individuals’ names.
By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable employment factors.
On July 21, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an incident report dated September 18, 2018, appellant related that her coworker’s car,
which she had driven to work, had been vandalized in the parking lot. The officer noted that the

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coworker believed that it had been vandalized because appellant had been driving it as she had
previously received threats due to whistleblowing in connection with union activity.
On December 7, 2018 appellant submitted a time and attendance screenshot, which she
asserted showed that she was in regular work status and not on leave or on official time on
August 17, 2017 and February 12, 2018.
A telephonic hearing was held on December 14, 2018. Appellant’s representative asserted
that she had experienced retaliation after reporting misconduct. He noted that on February 10,
2018 her supervisor told her that material “offensive to any person” had been found and distributed
to multiple locations throughout the base. Appellant also received death threats and had her car
vandalized. He related that she was at work and was not conducting union matters or on official
time when the harassment, death threat, and car vandalism had occurred. Appellant testified that,
on August 17, 2017 S.S., her first-line supervisor, had called security about the death threat. The
MPs arrived and turned the case over to the CID because it involved a death threat. Appellant had
not experienced problems prior to reporting the misappropriation of funds, so she believed that the
incidents were connected. The union vice-president made inappropriate comments to her on
August 8, 2017 after work hours, but on the premises of the employing establishment. Coworkers
heard rumors that appellant was sleeping around. A coworker’s car was vandalized in
August 2018 on base after she drove the vehicle. G.S., a coworker, spread rumors that appellant
had been a former manager’s private stripper. Appellant related that she saw R.R., the former
union president, every day because he worked in a nearby cubicle. She asserted that, when she
returned to work after being off due to stress, the pictures of her were still being passed around the
office.
Following the hearing, appellant submitted a copy of the threatening letter and the
pornographic photographs. She also submitted an August 17, 2017 e-mail from R.S.,4 the plant
manager, advising that on that date a note had been left on an employee’s computer threatening
the employee and family, and that information about the employee had also been placed on an
official bulletin board in violation of rules and policy. R.S. advised that an investigation was
currently being conducted to find the person or persons responsible.
On August 17, 2017 S.S. advised that on that date appellant had showed her a paper that
contained “clearly a written threat of harassment stating harm to [appellant] and her family.” She
had called the MPs and also emergency personnel because appellant required medical attention.
The MPs had contacted CID because the threat was “above what he is allowed to process.” The
CID agent had possession of a picture of appellant with a harassing caption from the union bulletin
board.
In a February 13, 2018 e-mail to the employing establishment, R.S. advised that
pornographic images of an employee had been placed at multiple locations throughout the
workstation. He indicated that the conduct would not be tolerated and was being investigated.

4

R.S. is also referred to in the record by his nickname, C.S.

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By decision dated May 10, 2019, OWCP’s hearing representative affirmed the July 12,
2018 decision, finding that the events that appellant had established as factually occurring
pertained to union matters unrelated to the performance of her federal work duties.
On December 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 12, 2020, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, 6 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability f or work for which he or she
claims compensation is causally related to that employment injury. 7 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.8
To establish an emotional condition in the performance of duty, a claimant must submit:
“(1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical
evidence establishing that he or she has a diagnosed emotional o r psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the
accepted compensable employment factors are causally related to the diagnosed
emotional condition.”9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’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
compensable. 10 However, disability is not compensable when it results from factors such as an

5

Supra note 2.

6

S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59
ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
7

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

8

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

9

See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).

10

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

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employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur. 12
Mere perceptions of harassment are not compensable under FECA. 13
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 14 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 15
However, the Board has recognized an exception to this general rule when employees
performing representational functions, which entitle them to official time, are injured when in the
performance of duty. 16 The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.17 OWCP’s procedures indicate that representational functions include authorized
activities undertaken by employees on behalf of other employees pursuant to such employees’
right to representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.18
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 19 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a

11

Lillian Cutler, id.

12

S.L., Docket No. 19-0387 (issued October 1, 2019); S.B., Docket No. 18-1113 (issued February 21, 2019).

13

Id.

14

R.L., Docket No. 18-1375 (issued May 1, 2019); Jimmy E. Norred, 36 ECAB 726 (1985).

15

R.L., id; J.G., Docket No. 17-1948 (issued September 13, 2018).

16

J.G., id.; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing activities
related to the internal business of a labor organization such as soliciting new members or collecting dues are not
considered to be in the performance of duty. The singular fact that one is on paid official time for union representation
is not enough to establish that every interaction during such official time is within the performance of duty).
17

J.G., id.; Marie Boylan, 45 ECAB 338 (1994).

18

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

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 6.

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compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 20
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not attributed her condition to the performance of her regularly or specially
assigned duties under Cutler.21 Instead, she maintained that she experienced harassment at work
after she had reported financial impropriety by the union in her role as union secretary and
treasurer.
There is no dispute that on August 17, 2018 someone placed a threatening letter on
appellant’s work desk. Appellant’s supervisor confirmed that appellant had received the
threatening letter and called the MPs, who contacted the CID. The Board has held that verbal and
written threats, when sufficiently detailed by the claimant and suppo rted by evidence, may
constitute compensable employment factors. 22 Appellant has established with corroborating
evidence that she received written threats made against her and her family. The Board has
recognized the compensability of threats when the factual aspects of such claimed threats are
established. 23 The Board finds that the letter left on appellant’s desk, which threatened her with
death and also threatened her family, rises to the level of a credible bodily threat. 24 Consequently,
the Board finds that she has established a compensable employment factor with regard to the death
threat.25
Appellant also attributed her condition to the placement of pornographic pictures
purporting to be of her, noting her cellphone number, in multiple locations around her worksite on
February 12, 2018. Harassment and discrimination by supervisors and coworkers, if established
as occurring and arising from the performance of work duties, can constitute a compensable work
factor.26 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence. 27
Appellant maintained that on February 12, 2018 her second-line supervisor, S.B., told her
that vulgar and graphic images altered to resemble her had been placed throughout the work
20

Id.

21

Supra note 11.

22

J.W., Docket No. 17-0999 (issued September 4, 2018).

23

See K.W., Docket No. 20-1504 (issued July 30, 2021); Z.S., Docket No. 16-1783 (issued August 16, 2018).

24

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
25

See J.Z., Docket No. 19-1156 (issued July 28, 2020).

26

See M.S., Docket No. 19-1589 (issued October 7, 2020).

27

See A.F., Docket No. 29-0525 (issued September 14, 2020); Robert Breeden, 57 ECAB 622 (2006).

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location. In a February 13, 2018 e-mail to the employing establishment, R.S., the plant manager,
advised that pornographic pictures had been placed throughout work and asserted that the conduct
would not be tolerated. While appellant expressed her belief that the images were placed around
work as retaliation for union whistleblowing activities, there is no evide nce of record from the
employing establishment identifying the perpetrator. The incident occurred while appellant was
performing her employment duties rather than union activities and the images were placed
throughout the work location. The evidence factually supports that a coworker placed graphic and
vulgar images of a sexual nature purporting to be of appellant around her work location and, thus,
she has established a compensable work factor. 28
Appellant further attributed her condition to R.R. yelling at her and accusing her of sleeping
with the new union head at a July 6, 2017 union meeting. She related that she had uncovered
financial irregularities and had called for an outside audit of the union and , as a result, the union
had been placed under Trusteeship. When officials arrived to take control of the union, R.R. yelled
at her and used profanity. Appellant maintained that on August 10, 2017 union members angry
about the audit had posted false union minutes and photographs of her on the bulletin board at
work. She advised that R.R.’s friends spread rumors about her around the office. Appellant has
not alleged that she was performing representational functions or was on official union time at the
time of these incidents. As there is no connection between these incidents and her employment,
the actions taken by the union members in reaction to the investigation and audit did not occur in
the performance of duty and are not compensable under FECA. 29
Appellant maintained that on July 18, 2017 her car was scratched and that on
September 18, 2018 a coworker’s car that she had driven was vandalized. She also asserted that
her home was vandalized. Appellant, however, has not submitted any evidence establishing that
these incidents occurred as part of her employment duties or evidence that the vandalism was the
result of harassment by coworkers. 30 Thus, she has not established a compensable work factor.
Appellant also maintained that a coworker had approached her and asked her about rumors
of a sexual nature circulating about her and that after work on August 8, 2017 B.S. called her a
whore and liar. She further alleged that a coworker, G.S., had accused her of being a stripper, told
others that the hair in the restroom was from her and that she was disgusting, attacked her for
speaking with her supervisor for guidance, complained about her work clothes, and made an
unkind comment when her brother passed away. Appellant, however, has not provided any
evidence such as witness statements supporting her allegations of harassment by either of the
unknown coworkers, B.S. or G.S.31 Consequently, she has not established a compensable work
factor with respect to these allegations. 32

28

See I.D., Docket No. 16-0581 (issued December 12, 2016).

29

Id.

30

See J.B., Docket No. 070664 (issued September 13, 2007).

31

Id.

32

See L.S., Docket No. 18-1471 (issued February 26, 2020); S.B., Docket No. 11-0766 (issued October 20, 2011).

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The case will, therefore, be remanded for an evaluation of the medical evidence to
determine whether appellant has established an emotional condition causally related to the
compensable employment factors. 33 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proc eedings
consistent with this decision of the Board.
Issued: March 18, 2022
Washington, DC

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

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

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

33

See D.B., Docket No. 19-1310 (issued July 21, 2020).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Rosedale, NY, Employer
__________________________________________

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

Docket No. 16-0063
Issued: June 24, 2016

Case Submitted on the Record

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

JURISDICTION
On October 14, 2015 appellant filed a timely appeal from an April 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $5,168.92 overpayment of compensation
for the period August 1, 2011 to November 15, 2014, for which he was at fault; (2) whether
appellant was at fault in the creation of the overpayment; and (3) whether OWCP properly
recovered the overpayment by withholding $430.00 from appellant’s continuing compensation
payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on July 17, 1997 appellant, then a 51-year-old telecommunications
specialist, sustained cervical and lumbar sprains in a work-related motor vehicle accident.
Appellant returned to light-duty work on August 25, 1997, stopped work on July 13, 1998, and
did not return.
Appellant received compensation on the daily rolls beginning on July 14, 1998.2
Appellant began federal employment in September 1968 as a radar instructor. Appellant
worked as an air traffic controller from September 1973 to August 1981.
On September 25, 1998 OWCP notified appellant that he would receive compensation for
temporary total disability on the periodic rolls beginning September 13, 1998. It informed him
of his obligation to report “any retirement income, disability income, or compensation benefits
from any [f]ederal agency.” Appellant signed the notice on October 4, 1998. He executed a
direct deposit authorization on October 6, 1998.3 Appellant completed affidavits of earnings and
employment (Form EN1032) annually from June 1999 through September 2010.
On September 10, 2011, August 23, 2012, and August 17, 2013 appellant signed a
Form EN1032 indicating that he had not received Social Security Administration (SSA) benefits
as part of an annuity for federal service in the previous 15 months.
On September 24, 2013 OWCP requested information from SSA regarding appellant’s
SSA age-related benefits. It forwarded a form entitled Federal Employees’ Retirement System
(FERS) SSA Dual Benefits Calculation, which requested the effective date of his social security
benefits, as well as separate calculations of SSA rate with FERS and without FERS. SSA
provided the requested information on November 27, 2013, noting the pay rates for the following
periods with and without FERS: August through November 2011, $807.10 with FERS and
$682.70 without; December 2011 through November 2012, $836.10 with FERS and $707.20
without; and December 2012 through November 2013, $850.30 with FERS and $719.20 without.
As of December 2013, the rates were $863.00 with FERS and $729.80 without.
On August 24, 2014 appellant signed a Form EN1032 indicating that he had not received
SSA benefits as part of an annuity for federal service in the previous 15 months.
In a November 6, 2014 memorandum, OWCP calculated that, based on the fiscal
information provided by SSA on November 27, 2013, a $5,168.92 overpayment of compensation
was created in appellant’s case for the period August 1, 2011 to November 15, 2014.4
2

OWCP approved an anterior C5-6 discectomy, performed on October 29, 1998.

3

On July 28, 2003 appellant signed a form electing to continue his postretirement basic life insurance coverage,
with no reduction in benefits, under the Federal Employees’ Group Life Insurance (FEGLI) as a compensationer.
He elected three multiples of Option B, and one unit of Option C.
4

OWCP calculated the overpayment as follows: $500.33 from August 1 to November 30, 2011; $1,555.30 from
December 1, 2011 to November 20, 2012; $1,577.52 from December 1, 2012 to November 30, 2013; $1,535.77
from December 1, 2013 to November 15, 2014.

2

By notice dated November 12, 2014, OWCP advised appellant of its preliminary
determination that he had received a $5,168.92 overpayment of compensation because he
received FECA benefits simultaneously with FERS retirement payments from August 1, 2011
through November 15, 2014. It provided a calculation of the overpayment, noting that appellant
was at fault in its creation as he failed to report his SSA benefits received as part of his
retirement annuity under FERS on EN1032 forms signed on September 10, 2011, August 23,
2012, August 17, 2013, and August 24, 2014. OWCP requested that appellant provide financial
information within 30 days or indicate if he contested that an overpayment occurred.
Appellant responded by letter received on December 30, 2014, contending that there was
no overpayment of compensation because his retirement coverage was under Civil Service
Retirement System (CSRS), not FERS. He attached May 27, 1997 and January 4, 1998
personnel action forms (Form SF-50) documenting his enrollment in the CSRS offset system.
Appellant requested a telephonic prerecoupment hearing, but noted that he did not request waiver
as he believed there was no overpayment.
In a March 25, 2015 letter, OWCP advised appellant to submit the requested financial
information to hold the requested telephonic prerecoupment hearing. Appellant did not respond.
By decision dated April 27, 2015, OWCP finalized that appellant had received an
overpayment of compensation in the amount of $5,168.92 for the period August 1, 2011 to
November 15, 2014 as he received FERS retirement benefits simultaneously with FECA
benefits. It found that he was at fault in the creation of the overpayment. OWCP noted that, as
appellant did not submit financial information as requested, it directed recovery of the
overpayment by deducting $430.00 every 28 days from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA5 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.7
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.8 OWCP
procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the
following restrictions apply. In disability cases, FECA benefits will be reduced by SSA benefits
5

5 U.S.C. § 8101 et seq.

6

Id. at § 8102.

7

Id. at § 8129(a).

8

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

3

paid on the basis of age and attributable to the employee’s federal service.9 Section 8116(d)(2)
provides that the receipt of SSA benefits “does not affect the right of the employee to
compensation for scheduled disabilities specified by section 8107(c) of this title.”10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical and lumbar sprains in a work-related
motor vehicle accident. Appellant stopped work on July 13, 1998. His May 27, 1997 and
January 4, 1998 personnel action forms (Form SF-50) documented his enrollment in the CSRS
offset retirement plan.
The Board finds that appellant received an overpayment of compensation from August 1,
2011 to November 15, 2014 because he received compensation from OWCP and SSA benefits
without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits
that are attributable to federal service. Appellant paid social security and Medicare taxes (FICA)
as a federal civilian employee under the CSRS Interim/Offset system, a precursor to FERS that
required contributions to both CSRS and for social security. It generally applied to certain new
hires or former CSRS-covered employees who had been separated from service for at least one
year and rehired after December 31, 1983.11 Appellant received age-based SSA benefits after
retirement as a result of his contributions to SSA under the CSRS interim system. As he
received SSA benefits based in part of his federal service concurrently with disability
compensation from OWCP without an appropriate offset, he received an overpayment of
compensation.
The Board further finds, however, that the case is not in posture for decision regarding
the amount or period of the overpayment. SSA provided OWCP with information regarding
appellant’s rate of SSA benefits beginning August 1, 2011 both with and without FERS. As
discussed, however, he was not covered by FERS, but was instead under the CSRS offset
retirement plan. It is not clear from the record whether the rates under the CSRS offset plan are
the same as the rates in the FERS plan. Given appellant’s pre-1987 employment history, OWCP
should have further inquired regarding the accuracy of this information. However, it did not
seek clarification from OPM. Therefore, the case will be remanded for further development.
On remand, OWCP should obtain additional information from SSA and OPM regarding
appellant’s retirement system and his SSA rate with and without any offset required based on his
federal civilian service.12 It will then recalculate the period and amount of the overpayment.
Following this and any other development deemed necessary, OWCP shall issue a de novo
decision in the case.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e)(2) (January 1997);
Chapter 2.1000.11(a)-(b) (February 1995).
10

5 U.S.C. § 8116(d)(2).

11

See A.P., Docket No. 12-122 (issued May 7, 2012).

12

J.M., Docket No. 12-0954 (issued November 26, 2012).

4

On appeal appellant contends that he was not a FERS employee, but covered under CSRS
as of the date of injury. As set forth above, the case will be remanded for additional
development regarding appellant’s retirement program and any benefits received.
ISSUES 2 & 3
As the case is not in posture regarding the fact of overpayment, the issues of fault and
recovery are moot.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 27, 2015 is set aside, and the case remanded for further
development consistent with this decision and order.
Issued: June 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warrenton, MO, Employer
__________________________________________

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

Docket No. 18-0178
Issued: May 23, 2018

Case Submitted on the Record

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

JURISDICTION
On October 31, 2017 appellant filed a timely appeal from an October 12, 2017 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 claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral plantar
fasciitis causally related to the accepted factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 26, 2016 appellant, then a 54-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that prolonged standing and walking on hard surfaces at work on or
before April 29, 2016 caused bilateral plantar fasciitis.2 She did not stop work.
In support of her claim, appellant submitted an attending physician’s form report (Form
CA-20) dated August 8, 2016 from Dr. Phann Vu, a podiatrist. Dr. Vu diagnosed bilateral plantar
fasciitis, right greater than left. He checked a box marked “yes” indicating that “prolonged
standing and walking” caused or aggravated the diagnosed condition. Dr. Vu opined that, effective
July 20, 2016, appellant was medically able to perform full-time modified duty “where she is not
required to be on her feet eight hours [a] day.” He prescribed medication, orthotics, and rest/ice/
compression/elevation.
By development letter dated November 3, 2016, OWCP notified appellant of the type of
evidence needed to establish her occupational disease claim, including factual evidence in
corroboration of her exposure to the identified employment factors, and a medical opinion from
her attending physician which established a medical diagnosis causally related to her employment.
It requested that she respond to an attached development questionnaire in order to substantiate the
factual elements of her claim. Appellant was afforded 30 days to submit additional evidence. A
similar letter was sent to the employing establishment.
Appellant responded to the development questionnaire on November 17, 2006. She
alleged that her job duties required prolonged standing on a concrete floor for six to eight hours a
day. Appellant’s symptoms began in March 2016 and had progressively worsened.
The employing establishment submitted an official position description dated March 3,
1992 and a statement of qualifications dated September 1, 2000.
By letter dated June 7, 2017, OWCP requested that Dr. Vu provide a well-reasoned
opinion, based on his clinical findings and an enclosed statement of accepted facts (SOAF), on
whether appellant sustained bilateral plantar fasciitis in the performance of duty as alleged. It
afforded him 30 days to respond. No response was received.
By decision dated October 12, 2017, OWCP denied appellant’s occupational disease claim.
It accepted her employment duties as a clerk and that she had been diagnosed with bilateral plantar
fasciitis, but denied her claim because the medical evidence of record was insufficient to establish
causal relationship between appellant’s bilateral foot condition and her employment duties.
OWCP determined that Dr. Vu merely provided brief comments on a form report regarding causal
relationship without sound medical rationale explaining how prolonged standing at work caused
or aggravated appellant’s bilateral foot condition. It noted that Dr. Vu did not respond to the
June 7, 2017 letter which requested his reasoned opinion on causal relationship.

2
Under File No. xxxxxx477, OWCP accepted that on February 11, 2008, appellant sustained frostbite on two toes
of her left foot. The claim was accepted and closed.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that an injury occurred in the performance of duty and that any specific
condition or disability from work for which he or she claims compensation is causally related to
that employment injury.5 In an occupational disease claim, appellant’s burden requires submission
of the following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has not met her burden of proof.
Appellant claimed that she sustained bilateral plantar fasciitis in the performance of duty
on or before April 29, 2016. In support of her claim, she submitted an attending physician’s report
(Form CA-20) dated August 8, 2016 from Dr. Vu, a podiatrist. However, Dr. Vu failed to explain
how the specific activities of walking and standing caused or aggravated appellant’s bilateral
plantar fasciitis. Without explaining how, physiologically, these job duties caused or contributed
to the development of appellant’s bilateral plantar fasciitis, his opinion is of limited probative
value.9
Also, the Board has held that a physician’s opinion that consists of checking a box marked
“yes” on a form report, without supporting medical rationale, is of diminished probative value in
3

Supra note 1.

4

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

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
6
N.G., Docket No. 17-0190 (issued February 23, 2018); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
7

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

8

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

9

N.G., supra note 6. See Lee R. Haywood, 48 ECAB 145 (1996).

3

establishing causal relationship.10 A mere conclusion without the necessary rationale explaining
how and why the physician believes that a claimant’s accepted exposure resulted in the diagnosed
condition is insufficient to meet appellant’s burden of proof.11 Furthermore, the mere fact that a
disease or condition manifests itself during a period of employment, nor the belief that the bilateral
foot condition had been caused by the identified employment factors, is sufficient to establish
causal relationship.12
The Board notes that OWCP advised appellant by development letter dated November 3,
2016, and Dr. Vu in a June 7, 2017 letter, that rationalized, well-reasoned medical opinion
evidence was needed to establish that she sustained bilateral plantar fasciitis as alleged. As
appellant has not provided such evidence, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of the merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral plantar
fasciitis causally related to the accepted factors of her federal employment.

10

J.P., Docket No. 16-0510 (issued April 22, 2016). See Calvin E. King, 51 ECAB 394 (2000).

11

G.M., Docket No. 14-2057 (issued May 12, 2015); Cecelia M. Corley, 56 ECAB 662 (2005).

12

Daniel O. Vasquez, 57 ECAB 559 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 12, 2017 is affirmed.
Issued: May 23, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY INSPECTION SERVICE, Greeley, CO,
Employer
__________________________________________

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

Docket No. 14-1749
Issued: December 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from an April 30, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days has elapsed from the last merit decision dated
October 8, 2013 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 15, 2005 appellant, then a 52-year-old food inspector, filed an
occupational disease claim alleging that he sustained right carpal tunnel syndrome and ulnar
nerve compression of the right elbow causally related to repetitive work duties. OWCP accepted
the claim for right carpal tunnel syndrome and right ulnar nerve compression. On December 20,
2005 appellant underwent a right carpal tunnel decompression and flexor radical
tenosynovectomy of the right wrist and a right ulnar nerve decompression. On July 18, 2006 he
underwent a fusion of the metacarpophalangeal (MP) joint of the right thumb with a bone graft
and screw placement.2
In an impairment evaluation dated October 25, 2007, Dr. Raymond P. Van Den Hoven, a
Board-certified physiatrist, diagnosed status post right ulnar nerve transposition and right carpal
tunnel release, status post tendon transfers for right thumb pinch strength, status post joint fusion
of the MP joint of the right thumb, and probable bilateral elbow osteoarthritis. He noted that the
December 20, 2005 operative report found atrophy of the ulnar area. Dr. Van Den Hoven found
that, under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides), appellant had a 49 percent right upper extremity
impairment due to dysfunction of the ulnar nerve, thumb joint problems, and arthritis of the
elbow.
On April 25, 2011 appellant filed a claim for a schedule award. On May 5, 2011 OWCP
requested that he submit an impairment evaluation from his attending physician addressing the
extent of any permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
In an impairment evaluation dated June 13, 2011, Dr. Gregory Reichhardt, a Boardcertified physiatrist, diagnosed pain and weakness in the right upper extremity due to repetitive
work activities, status post right carpal tunnel , and multiple right thumb surgeries. Citing the
sixth edition of the A.M.A., Guides, he determined that appellant had a 7 percent permanent
impairment of the right upper extremity due to thumb ankyloses, a 4 percent impairment due of
loss of motion of the wrist, a 2 percent impairment due to loss of range of motion of the elbow,
and a 23 percent impairment for a motor deficit of the ulnar nerve, for a total right upper
extremity impairment of 33 percent.
On June 4, 2013 an OWCP medical adviser reviewed Dr. Reichhardt’s report. He found
that appellant had 11 percent right upper extremity impairment due to compression neuropathy
and a 3 percent impairment of the right thumb due to ankyloses for a total of 14 percent of the
right upper range of motion. The medical adviser opined that Dr. Reichhardt’s range of motion
measurements were not valid as he performed the measurements only one time. He also noted
that appellant had atrophy from disuse rather than neurological atrophy.

2

By decision dated January 16, 2007, an OWCP hearing representative reversed a February 22, 2006 decision
and found that appellant was entitled to compensation for total disability from November 10 through
December 19, 2005. In a decision dated September 23, 2010, OWCP reduced appellant’s compensation based on its
finding that he had the capacity to earn wages in the selected positon of chauffeur/driver.

2

By decision dated October 8, 2013, OWCP granted appellant a schedule award for a 14
percent right upper extremity impairment. The period of the award ran for 43.68 weeks from
September 22, 2013 to July 24, 2014. In a form dated November 8, 2013, received by OWCP on
November 14, 2013, appellant requested an oral hearing.
By decision dated December 20, 2013, OWCP’s Branch of Hearings and Review denied
his request as untimely under 5 U.S.C. § 8124.
On April 17, 2014 appellant requested reconsideration.3 He discussed his history of
surgeries on the right upper extremities.
Appellant related that he submitted
Dr. Van Den Hoven’s impairment rating in 2007 but OWCP did not adjudicate his schedule
award claim until May 2011, after its adoption of the sixth edition of the A.M.A., Guides. He
asserted that OWCP should use Dr. Van Den Hoven’s impairment rating. Appellant further
noted that he obtained an opinion from Dr. Reichhardt that he had a 33 percent impairment under
the sixth edition of the A.M.A., Guides. He questioned how the medical adviser determined that
he had only a 14 percent impairment rating given that he did not perform an examination.
Appellant disagreed with the medical adviser’s findings that he had atrophy from disuse. He also
noted that his right hand was worse than his left hand but he received a greater schedule award
for the left upper extremity under the fifth edition of the A.M.A., Guides. Appellant submitted
photographs of his hand.
In a decision dated April 30, 2013, OWCP denied appellant’s request for reconsideration
on the grounds that he had not raised an argument or submitted evidence sufficient to warrant
reopening his case for further merit review under section 8128. It noted that he had received a
schedule award for the left upper extremity under another file number.
On appeal, appellant argues that on April 25, 2007 he submitted a schedule award claim
and impairment evaluation from Dr. Van Den Hoven using the fifth edition of the A.M.A.,
Guides but OWCP did not adjudicate his claim until after the sixth edition of the A.M.A., Guides
became effective. He asserts that using the sixth edition resulted in a lower impairment rating
and requests that OWCP use the fifth edition of the A.M.A., Guides.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
3

In an undated and unsigned response to OWCP’s March 28, 2014 request for a periodic medical report,
Dr. Randy M. Bussey, a Board-certified orthopedic surgeon, related that it was unknown if appellant continued to
experience the accepted conditions and indicated that he had referred him for an impairment evaluation on
June 13, 2011.
4

Supra note 1. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.”
5

20 C.F.R. § 10.606(b)(3).

3

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
In the last merit decision dated October 8, 2013, OWCP granted appellant a schedule
award for a 14 percent permanent impairment of the right upper extremity. On April 17, 2014
appellant requested reconsideration.
As noted above, the Board does not have jurisdiction over the October 8, 2013 decision.
The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In his
request for reconsideration, he did not show that OWCP erroneously applied or interpreted a
specific point of law or advance a new and relevant legal argument. Appellant argued that in
2007 he submitted an impairment rating from Dr. Van Den Hoven using the fifth edition of the
A.M.A., Guides but that OWCP delayed adjudicating his schedule award claim until 2011, after
it adopted the sixth edition of the A.M.A., Guides. On March 15, 2009 the Director exercised
authority to advise that as of May 1, 2009 all schedule award decisions of OWCP should reflect
use of the sixth edition of the A.M.A., Guides.11 The applicable date of the sixth edition is as of
the date of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.12 Appellant thus
has not raised a legal argument sufficient to warrant reopening his case for further merit review.

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

9

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

See J.D., Docket No. 11-427 (issued November 14, 2011); R.W., Docket No. 11-456 (issued
September 28, 2011).

4

Appellant also maintained that OWCP should accept Dr. Reichhardt’s finding that he had
a 33 percent impairment under the sixth edition of the A.M.A., Guides rather than the opinion of
the medical adviser, who did not perform an examination.13 He further noted that he had
received a greater schedule award for his left upper extremity even though his right hand was
worse than his left hand and challenged the medical adviser’s finding that his atrophy resulted
from disuse.14 The relevant issue, however, is the extent of appellant’s permanent impairment of
the right upper extremity, which is a medical question that can only be resolved through the
submission of probative medical evidence from a physician.15 Appellant has not submitted any
pertinent new and relevant evidence. The Board finds that his lay opinion is not relevant to this
medical issue, and thus his contentions are insufficient to warrant reopening his case for further
merit review.16
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not submit any pertinent new and relevant medical evidence in this
case. Appellant submitted a photograph of his hand but this evidence is not relevant to
determining the extent of his permanent impairment. Evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.17
On appeal, appellant argues that he received a lower schedule award than he would have
if OWCP used the fifth edition of the A.M.A., Guides. As discussed, however, as of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.18
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

13

OWCP procedures provide that, after obtaining all necessary medical evidence, the file should be routed to the
medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A.,
Guide. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6(f) (February 2013).
14

A claimant may request an increased schedule award based on evidence of new exposure or medical evidence
showing progression of an employment-related condition resulting in permanent impairment or increased
impairment. Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994). As discussed, however,
appellant did not submit any new evidence supporting an increased impairment or raise any argument relevant to the
issue of the extent of his permanent impairment.
15

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

16

Id.

17

Freddie Mosley, 54 ECAB 255 (2002).

18

Supra note 13 at Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his claim for
further review of the merits under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE ARMY, LOGISTICS
READINESS CENTER, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 19-1517
Issued: January 29, 2020

Case Submitted on the Record

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

JURISDICTION
On July 8, 2019 appellant filed a timely appeal from a June 3, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability commencing May 1, 2017 causally related to the accepted June 3, 2016 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 10, 2016 appellant, then a 56-year-old fuel handler, filed a traumatic injury claim
(Form CA-1) alleging that on June 3, 2016 he injured his neck and back when attempting to turn
off a valve to stop a leak while in the performance of duty. He stopped work on June 3, 2016.
On May 24, 2017 OWCP accepted appellant’s claim for sprain of the lumbar spine.
On August 31, 2017 Dr. Daniel S. Ikeda, a Board-certified internist, diagnosed severe
lower extremity radiculopathy from recurrent disc herniation of the lumbar spine. He scheduled
appellant for surgery on September 22, 2017 and found that he was totally disabled from work.
In a June 8, 2018 work capacity evaluation form (Form OWCP 5-c), Fermin Cabezas, a
physician assistant, diagnosed lumbar spondylosis, low back pain, lumbar radiculopathy, and
status post lumbar fusion.
In November 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that on
May 1, 2017 he sustained a recurrence of disability due to surgery causally related to his June 3,
2016 employment injury. He stopped work on that date and did not return. On the reverse side of
the claim form, appellant’s supervisor indicated that appellant performed light-duty work until his
surgery in May 2017.
In a May 2, 2019 development letter, OWCP advised appellant of the deficiencies of his
recurrence claim. It requested additional factual and medical evidence and provided a
questionnaire for his completion. OWCP afforded appellant 30 days for a response.
On May 1, 2019 appellant filed a claim for compensation (Form CA-7) for leave without
pay (LWOP) for the period August 9, 2017 through May 1, 2019.
In a May 14, 2019 narrative statement, appellant explained that, following his accepted
June 3, 2016 employment injury, he performed light duty as he could not fulfill his regular job
duties. He then underwent two surgeries as a result of the June 3, 2016 employment injury.
Appellant did not return to work and began receiving Social Security Administration disability
payments and Office of Personnel Management disability retirement benefits.
On May 14, 2019 appellant completed the questionnaire provided by OWCP. He attributed
his recurrence of disability to the June 3, 2016 injury and resulting two lumbar surgeries.
Appellant asserted that he was in back pain 24 hours a day and that standing and sitting made his
condition worse.
By decision dated June 3, 2019, OWCP denied appellant’s recurrence claim.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused

2

the illness.2 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed the established physical
limitations.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.4 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning.5 Where no such rationale is present, the medical evidence is
of diminished probative value.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing May 1, 2017 causally related to the accepted June 3, 2016 employment
injury.
In an August 31, 2017 report, Dr. Ikeda diagnosed severe lower extremity radiculopathy
from recurrent disc herniation of the lumbar spine. He scheduled appellant for surgery on
September 22, 2017 and found that he was totally disabled. Dr. Ikeda did not specifically address
whether appellant had a recurrence of disability causally related to his accepted employment
condition of lumbar sprain or otherwise provide medical reasoning explaining why any current
condition or disability was due to the accepted June 3, 2016 injury. His report did not meet
appellant’s burden of proof as it did not provide a rationalized explanation as to how appellant’s
accepted lumbar sprain resulted in the need for surgery or for total disability for work.7

2

20 C.F.R. § 10.5(x); S.W., Docket No. 18-1489 (issued June 25, 2019).

3

Id.

4

J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019).

5

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

6

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

7

L.B., Docket No. 18-0533 (issued August 27, 2018).

3

Appellant also submitted diagnostic test results into the case record. However, the Board
has held that reports of diagnostic tests lack probative value as they fail to provide an opinion on
the causal relationship between his employment duties and the diagnosed conditions.8
The report from Mr. Cabezas, a physician assistant, has no probative medical value on the
issue of causal relationship as physician assistants are not considered physicians as defined under
FECA.9 Consequently, the medical findings and/or opinions of a physician assistant are of no
probative value for purposes of establishing entitlement to compensation benefits.10
As none of the medical evidence provided contains a discussion regarding how appellant’s
accepted employment injury resulted in disability during the claimed period, the Board finds that
appellant, therefore, has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing May 1, 2017 causally related to the accepted June 3, 2016 employment
injury.

8

K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019); J.M., Docket
No. 17-1688 (issued December 13, 2018).
9
5 U.S.C. § 8101(2). B.K., Docket No. 19-0829 (issued September 25, 2019); T.C., Docket No. 19-0227 (issued
July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (Under FECA
the term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by the applicable state law). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
10

N.R., Docket No. 19-1366 (issued December 6, 2019); S.S., Docket No. 18-1488 (issued March 11, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 29, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, MOUNT
GREENWOOD STATION, Chicago, IL,
Employer
__________________________________________

)
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)
)
)
)
)
)

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

Docket No. 08-2144
Issued: May 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from a May 28, 2008 merit decision of
the Office of Workers’ Compensation Programs’ hearing representative. She also timely
appealed a January 29, 2008 decision of the same Office hearing representative denying a
telephonic hearing. Pursuant to 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 appellant established entitlement to a schedule award due to
her employment injury; and (2) whether the Office properly converted appellant’s telephonic
hearing to a review of the written record.
FACTUAL HISTORY
On June 22, 2006 appellant, then a 58-year-old customer service manager, filed a
traumatic injury claim (Form CA-1) alleging that on June 14, 2006 a postal carrier bent

appellant’s hand backwards and slammed it against the dashboard of his vehicle while she was
attempting to remove the keys from the ignition. She immediately filed a police report against
the postal carrier for assault and battery and sought medical treatment. Appellant returned to
light duty on June 14, 2006. She stopped working on June 16, 2006 and returned to duty on
July 5, 2006. On June 27, 2006 the Office accepted appellant’s claim for contusion of the right
forearm and sprain of the right hand.
On January 10, 2007 appellant filed a claim for a schedule award (Form CA-7).
By letter dated January 24, 2007, the Office requested that appellant submit a physician’s
evaluation of her permanent impairment in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), fifth edition.1 It sent a
second request for a physician’s evaluation on April 3, 2007.
Appellant submitted medical reports dated June 14, 2006 through March 21, 2007 related
to treatment for her right arm and hand injury. In a medical report dated March 21, 2007, her
treating physician performed a physical examination revealing some swelling of the forearm. An
x-ray did not show any bony abnormalities. The physician opined that appellant’s problem
would probably clear up spontaneously and completely.
In a medical report dated May 9, 2007, Dr. Martin Hall, a Board-certified orthopedic
surgeon, opined that appellant did not have any functional loss of her hand, wrist, elbow or
shoulder and that her complaint of right arm soreness was not demonstrable on examination.
Physical examination revealed a full range of motion in her right shoulder, elbow, hand and
wrist, no tenderness of the medial or lateral epicondyle and no evident motor deficits. Dr. Hall
stated that he did not do permanent or partial impairment ratings.
On June 1, 2007 the Office referred appellant, along with her medical record and a
statement of accepted facts, to Dr. Jeffrey Tioco, a Board-certified orthopedic surgeon, for a
second opinion evaluation of her permanent impairment to her right upper extremity.
In a medical report dated July 25, 2007, Dr. Tioco briefly reviewed appellant’s medical
history. Physical examination revealed full range of motion of the right shoulder, elbow, wrist
and fingers and no significant deformity or atrophy of the right upper extremity. Dr. Tioco noted
tenderness on the dorsal aspect of the right forearm. He stated that the grip strength of the right
hand was 4+/5 as compared to the left, however, the right hand and forearm tendon strength tests
were inconsistent. Appellant’s sensation in the radial, ulnar and median nerve distribution were
intact.
Dr. Tioco referred to Table 16-32, on page 509 of the A.M.A., Guides, fifth edition, to
determine that appellant’s normal grip strength on her dominant right hand at the age of 59
should be 22.3 kilogram (kg). He equated appellant’s 4+ grip strength to approximate 20.0 kg.
Dr. Tioco then subtracted the limited strength 20.0 kg from the normal strength 22.3 kg and
divided by the normal strength 22.3 kg to determine a strength loss index percentage of 10.3
percent. He referred to Table 16-34, titled “Upper Extremity Joint Impairment Due to Loss of
1

A.M.A., Guides, (5th ed. 2001).

2

Grip or Pinch Strength,” to convert the 10.3 strength loss index to a 10 percent upper extremity
impairment. Using Table 16-3, on page 439, Dr. Tioco converted the 10 percent upper extremity
impairment to 6 percent whole person impairment. He opined that due to the inconsistency
during the physical examination of appellant’s upper right extremity, there was approximately
five percent upper extremity impairment. Dr. Tioco then converted the five percent upper
extremity impairment to three percent whole person impairment using Table 16-3, on page 439.
He concluded that appellant had three percent whole person impairment rating, despite
calculations of six percent due to decreased grip strength because of inconsistency during the
physical examination.
On August 8, 2007 the Office forwarded appellant’s file to, an Office medical adviser,
Dr. Robert Wysocki, for review.
In a medical report dated August 15, 2007, Dr. Wysocki referred to Dr. Tioco’s medical
report dated July 25, 2007, which found a full range of motion and sensation, no atrophy and a
negative Tinel’s test. He also pointed out that Dr. Hall’s examination on May 9, 2007
documented normal range of motion, normal sensation and no motor deficits. Dr. Wysocki
opined that, given only the inconsistent strength findings on examination and vague complaints
of pain, appellant sustained a zero percent permanent impairment of the right upper extremity.
Further, he set the date of maximum medical improvement at July 25, 2007, which was the date
of Dr. Tioco’s examination and over one year since the injury.
By decision dated August 29, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that there was no measurable scheduled impairment.
On September 26, 2007 appellant requested a telephonic hearing before a hearing
representative. In a December 4, 2007 letter, the Office notified appellant that her telephonic
hearing was to take place on January 10, 2008 at 10:00 a.m. Eastern time and provided the toll
free dial-in-number, as well as the pass code. Appellant failed to appear.
In a January 16, 2008 letter, appellant requested an extension to submit additional
evidence.
By decision dated January 29, 2008, the Office hearing representative denied
postponement of appellant’s hearing. Citing to section 10.622 of the Federal Employees’
Compensation Act,2 she stated that once scheduled, a hearing cannot be postponed unless the
hearing representative is able to reschedule on the same docket or the request for postponement
was for a limited number of exceptions found in section 10.622(c).3 Because the request for
postponement was not due to one of the enumerated exceptions and she was unable to reschedule
the hearing, the hearing representative stated that she would perform a written review of the
record. The hearing representative notified appellant that she had 15 days to submit additional
evidence. Appellant did not submit any additional evidence.

2

20 C.F.R. § 10.622.

3

Id. at § 10.622(c).

3

In a decision dated May 28, 2008, the Office hearing representative affirmed the denial of
the schedule award, finding that appellant failed to meet her burden of proof in establishing a
permanent impairment to her right upper extremity and that the weight of the medical evidence
rested with Dr. Wysocki, who found that appellant did not have a ratable impairment to a
scheduled member.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, the Office has adopted the A.M.A.,
Guides, fifth edition, as the standard to be used for evaluating scheduled losses.6
ANALYSIS -- ISSUE 1
The issue is whether appellant established that she sustained a permanent impairment to
her right upper extremity, entitling her to a schedule award. The Board finds that appellant has
not met her burden of proof.
The Office accepted that appellant sustained a contusion of the right forearm and sprain
of the right hand. In a medical report dated May 9, 2007, Dr. Hall opined that appellant had no
ratable impairment. The Office referred appellant to Dr. Tioco for a second opinion evaluation
on the issue of whether appellant sustained a permanent impairment to her right upper extremity
in accordance with the A.M.A., Guides. On examination, Dr. Tioco found a full range of motion
and no significant deformity or atrophy of the upper right extremity. He did note tenderness on
the dorsal aspect of the right forearm and decreased grip strength in the right hand. However,
Dr. Tioco stated that the right hand and forearm tendon strength tests were inconsistent.
Using the strength evaluation tables on page 509 of the A.M.A., Guides, Dr. Tioco
determined that appellant should have a 22.3 kg grip strength, based on her age, sex and
dominant hand. He then converted the 4+ grip strength to 20.0 kg and, following the strength
loss formula on page 509, subtracted appellant’s actual grip strength 20.0 kg from the normal
grip strength (22.3kg) and divided the result by the normal grip strength (22.3kg) to determine a
strength loss index of 10.3 percent. Using Table 16-34, Dr. Tioco converted the 10.3 strength
loss index into 10 percent upper extremity impairment.7 He opined that, based on the

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

A.M.A., Guides 509.

4

inconsistency of the strength tests during the examination, appellant had approximately a five
percent upper extremity impairment.8
The Office then referred the case to Dr. Wysocki, an Office medical adviser, to determine
appellant’s permanent impairment to her upper right extremity. He cited Dr. Tioco’s
examination, finding no ratable permanent impairment.
The Board finds that Dr. Wysocki properly utilized the A.M.A., Guides, fifth edition. On
examination, Dr. Tioco found that appellant had a full range of motion in her upper extremities.
Appellant did not sustain a loss of sensation. Nor did she sustain any atrophy. The Tinel’s test
was negative. Thus, the Board finds that Dr. Wysocki properly utilized the A.M.A., Guides and
Dr. Tioco’s clinical findings to determine that appellant did not sustain any ratable permanent
impairment.
The Board notes that Dr. Tioco found five percent upper extremity impairment due to
decreased grip strength. Section 16.8 of the A.M.A., Guides9 states that because strength
measurements are functional tests influenced by subjective factors that are difficult to control
and because the A.M.A., Guides are primarily based on anatomic impairment, strength
measurements are only to be determined in a rare case where the examiner believes the loss of
strength has not been adequately considered by other methods provided in the A.M.A., Guides.10
Dr. Tioco failed to explain why other methods in the A.M.A., Guides could not adequately
address appellant’s loss of strength.11 Furthermore, he found that the strength tests were
inconsistent.12 Based on the inconsistency of the results and the reluctance of the A.M.A.,
Guides to rely on grip strength testing as a basis for evaluating impairment, the Board finds that
appellant is not entitled to a schedule award solely based on Dr. Tioco’s grip strength
measurements. Further, because Dr. Tioco misapplied the A.M.A., Guides, the Board finds that
the Office properly relied on Dr. Wysocki’s determination that appellant did not sustain a ratable
impairment, as his report constitutes the weight of medical evidence.13
Moreover, appellant did not submit any medical evidence supporting her claim for a
schedule award. Rather, the medical reports from appellant’s treating physician and Dr. Hall
8

The Board notes that Dr. Tioco also concluded that appellant had six percent whole person impairment.
However, whole person impairments are not permitted under the Act. See Guiseppe Aversa, 55 ECAB 164,
167 (2003).
9

A.M.A., Guides 507.

10

Id. at 507-08.

11

See Maximiana Medina, Docket No.04-1925 (issued January 24, 2005).

12

The Board notes that Dr. Tioco did not specifically provide the percentage of inconsistencies in appellant’s
strength testing. According to section 16.8b of the A.M.A., Guides, if there is more than a 20 percent variation in
the readings, it may be assumed that individual is not exerting full effort. In this case, it appears that the grip
strength measurements are deemed invalid for estimating impairment. A.M.A., Guides 508-09.
13

See Joseph Santaniello, 42 ECAB 710 (1991) (where the Board found that the Office medical adviser’s report
constituted the weight of the medical evidence as he was the only physician who properly applied the A.M.A.,
Guides).

5

support the Office’s finding that she did not sustain a ratable impairment. In a May 9, 2007
medical report, Dr. Hall concluded that appellant did not have any function deficits and that her
complaints of pain were not even demonstrable on examination. Further, in the March 21, 2007
medical report, appellant’s treating physician opined that her condition would likely clear up
spontaneously and completely, implying that she would not sustain any permanent impairment.
None of the other medical reports submitted by appellant discussed any permanent impairment to
her upper extremity that would be considered by the A.M.A., Guides in determining a schedule
award.14
Thus, the Board finds that appellant did not meet her burden of proof in establishing a
ratable impairment to her upper right extremity entitling her to a schedule award.15
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provide as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of issuance of the decision,
to a hearing on his claim before a representative of the Secretary.”16
Section 10.622 of the Office’s regulations provide that once an oral hearing is scheduled
and the Office has sent the claimant the appropriate written notice, the oral hearing cannot be
postponed at the claimant’s request except where the claimant is hospitalized for a reason that is
not elective or where the death of the claimant’s parent, spouse or child prevents attendance at
the hearing.17 When the request to postpone the hearing does not comport with these
requirements and it cannot be accommodated on the docket during the same hearing trip, no
further opportunity for an oral hearing will be provided. Instead a review of the written record
will be performed or, at the discretion of the hearing representative, a teleconference will be
held.18

14

Subsequent to the issuance of the hearing representative’s May 29, 2008 decision, appellant submitted
additional evidence. As this evidence was not previously submitted to the Office for consideration, it represents new
evidence which cannot be considered by the Board in the current appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision. See 20 C.F.R. § 501.2(c). See
also Mary A. Ceglia, 55 ECAB 626 (2004).
15

On appeal, appellant contends that she was off work from June 17 through July 7, 2006 and used sick leave.
She has not filed a claim for compensation Form (CA-7) for leave buy-back for this period of time and the Office
has not issued a decision on this issue. Thus, this matter is not before the Board on appeal. See 20 C.F.R.
§ 501.2(c).
16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. § 10.622.

18

Id. See also C.N., Docket No. 07-1259 (issued October 2, 2007).

6

ANALYSIS -- ISSUE 2
The issue is whether the hearing representative properly performed a written review of
the record in lieu of a telephonic hearing.
By letter dated December 4, 2007, the Office properly gave appellant 30 days notice that
her telephonic hearing was scheduled for January 10, 2008 at 10:00 a.m. Eastern time and
provided her the toll free dial-in number and pass code.19 Appellant failed to appear for her
telephonic hearing and by letter dated January 16, 2008 requested an extension.
The Board finds that the hearing representative properly converted the telephonic hearing
to a review of the written record. The hearing representative stated that appellant could not
reschedule the telephonic hearing on the same docket. Further, appellant did not provide a
reason for her request to postpone her hearing and thus, her request does not fall within the
exceptions provided in section 10.622(c). Therefore, the hearing representative properly
performed a review of the written record pursuant to section 10.622(b) and appropriately issued a
decision on May 28, 2008.20
CONCLUSION
The Board finds that appellant did not establish that she is entitled to a schedule award
due to her employment injury. Further, the Board finds that the Office hearing representative
properly converted appellant’s telephonic hearing into a review of the written record.

19

See 20 C.F.R. § 10.618(b).

20

See M.P., Docket No. 07-744 (issued September 26, 2007) (where appellant contacted the Office one hour after
the time scheduled for the telephonic hearing due to a difference in time zones. The Office denied appellant’s
request to reschedule the telephonic hearing and the hearing representative performed a review of the written record
pursuant to 20 C.F.R. § 10.622).

7

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2007 decision of the Office of
Workers’ Compensation Programs and the May 28 and January 29, 2008 decisions of the Office
hearing representative are affirmed.
Issued: May 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 13-764
Issued: July 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 13, 2013 appellant filed a timely appeal from a September 4, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the date of OWCP’s most recent merit decision of May 23, 2011 to the filing of this
appeal on February 13, 2013, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that he is entitled to a merit review as he submitted factual
evidence in his April 11, 2012 request for reconsideration.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 24, 2010 appellant, then a 38-year-old letter carrier, filed a traumatic
injury claim alleging that on November 23, 2010 he injured his back when he slipped on mud in
the performance of duty. He submitted two medical excuse notes from Dr. Andrew Green, a
chiropractor, dated November 24 and December 1, 2010.
In an April 22, 2011 letter, OWCP advised appellant of the deficiencies in his claim. It
requested additional evidence pertaining to both the factual and medical aspect of his claim.
Appellant was accorded 30 days within which to submit the evidence. No further evidence was
received.
By decision dated May 23, 2011, OWCP denied the claim finding that fact of injury was
not established. It found the evidence was not sufficient to establish that the incident occurred as
alleged as appellant did not respond to the development letter. OWCP also found the medical
evidence insufficient to establish a back condition was causally related to the incident.
In an April 11, 2012 letter postmarked April 12, 2012, appellant requested
reconsideration. He submitted a July 11, 2011 letter describing how the November 23, 2010
injury occurred; a July 8, 2011 statement of certification; diagnostic studies and several reports
from Dr. Green, his chiropractor.
By decision dated September 4, 2012, OWCP denied appellant’s request for
reconsideration finding that only medical evidence was submitted in support of the request for
reconsideration. It explained that, since the factual component of the claim had not been
addressed, a merit review on the basis of the additional medical evidence was not warranted.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.2 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her

2

Id. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

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

4

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

2

application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
In support of his April 11, 2012 reconsideration request, appellant submitted a July 11,
2011 statement in which he described how the November 23, 2010 injury occurred. His
statement directly addresses grounds upon which OWCP denied his claim as it relates to the
factual component of fact of injury. The Board finds that appellant’s July 11, 2011 statement
constitutes relevant and pertinent new evidence not previously considered by OWCP. As it
meets one of the standards for obtaining a merit review of his case, the Board finds that OWCP
improperly denied appellant’s request. Appellant is entitled to a merit review.7
The Board will remand the case for a merit review. After such further development of
the evidence as might be necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP failed to reopen appellant’s case for further reconsideration
of the merits pursuant to 5 U.S.C. § 8128(a).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

In light of the disposition of this case, appellant’s further arguments on appeal will not be addressed.

3

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: July 15, 2013
Washington, DC

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

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

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

4