United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
NATIONAL TRANSPORTATION SAFETY
BOARD, ACCOUNTING OPERATIONS
DIVISION, Washington, DC, Employer
__________________________________________

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Appearances:
Robert A. Taylor, Esq., for the appellant
No appearance, for the Director

Docket No. 08-734
Issued: September 5, 2008

Oral Argument July 10, 2008

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

JURISDICTION
On January 14, 2008 appellant through his representative filed a timely appeal from the
Office of Workers’ Compensation Programs’ December 6, 2007 nonmerit decision denying his
request for merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over this nonmerit decision. The last merit decision of the Office was its June 12, 2006 decision
denying appellant’s traumatic injury claim. Because more than one year has elapsed between the
Office’s last merit decision and the filing of this appeal, the Board lacks jurisdiction to review
the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s representative argues that the medical evidence of record establishes a causal
relationship between the accepted July 28, 2004 work incident and appellant’s back condition.

The representative contends that the Office erred in finding that the deposition of appellant’s
treating physician, under oath, is not competent medical evidence.
FACTUAL HISTORY
On August 3, 2004 appellant, a 55-year-old financial management specialist, filed a
traumatic injury claim alleging that he sustained injuries to his right leg and back on July 28,
2004, while moving his computer monitor. The Office initially denied the claim, by decision
dated October 4, 2004, on the grounds that the claimed injury did not occur in the performance
of duty, as it occurred almost three hours after his normal tour of duty ended.
On October 3, 2005 appellant, through his representative, requested reconsideration. By
decision dated June 12, 2006, the Office modified the October 4, 2004 decision to reflect that the
claimed incident occurred in the performance of duty. As appellant was authorized to be on the
employer’s premises when the work incident occurred, and it occurred at a reasonable time after
his regular tour of duty hours, the Office found that the activity of moving his office to a new
location was reasonably incidental to his employment. However, the Office affirmed its denial
of appellant’s claim on the grounds that the medical evidence submitted failed to demonstrate a
causal relationship between the claimed medical condition and the established employment
incident.
Medical evidence of record submitted prior to the Office’s June 12, 2006 decision
included: a July 29, 2004 urgent care report, bearing an illegible signature, indicating that he fell
“last night at work” and had pain in his right leg; the first page of an unsigned August 3, 2004
report, reflecting appellant’s complaints of bilateral hip and thigh pain; a July 29, 2004 attending
physician’s report, bearing an illegible signature, indicating that appellant tripped and fell on
July 28, 2004 while moving a computer during an office move, and reflecting diagnoses of
muscle strain (back and thigh) and right knee sprain; a letter dated June 22, 2004 from
Dr. Dominick Mirando, a chiropractor; and a May 13, 2005 report from Dr. Guy W. Gargour,
who opined that appellant had sustained an injury at work while moving some files, which
exacerbated a previously diagnosed lumbosacral problem.
On June 12, 2007 appellant, through his representative, requested reconsideration,
contending that newly-submitted medical evidence was sufficient to establish his claim. In
support of the request, appellant submitted the June 22, 2006 deposition of Dr. Gargour, who
opined, to a reasonable degree of medical certainty, that appellant’s fall on July 28, 2004
exacerbated a preexisting back condition (L4-5 herniated disc).1 Appellant also submitted copies
of documents previously received by the Office, including the above-referenced July 29, 2004
urgent care report, an August 3, 2004 unsigned report, a July 29, 2004 attending physician’s
report and Dr. Mirando’s June 22, 2004 letter; a position description for financial management
specialist; documents relating to a March 24, 2004 injury, including a June 25, 2004 letter from
Dr. Gargour and a May 11, 2006 letter from Dr. Joseph J. Lamb; unsigned medical notes from
Mirando Chiropractor Center dated December 10, 2003 through June 15, 2006; an undated
1

The representative noted that appellant has another claim before the Office for an earlier aggravation of his
herniated disc which allegedly occurred at work on May 24, 2004 (File No. 252043468). Dr. Gargour’s deposition
addressed both claims.

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physical therapy report; and June 2, 2004 reports of magnetic resonance imaging scans of the
brain and lumbar spine.
By decision dated December 6, 2007, the Office denied appellant’s request for
reconsideration, finding the evidence submitted insufficient to warrant merit review. The Office
found that Dr. Gargour’s deposition could not be considered valid medical evidence, in that it
was not signed. The remaining evidence submitted was found to be irrelevant or duplicative.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.6 Evidence or argument
that repeats or duplicates evidence previously of record has no evidentiary value and does not
constitute a basis for reopening a case.7
A medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as a “physician” as defined in 5 U.S.C.
§ 8102(2).8 The Board has found that reports lacking proper identification, such as unsigned
treatment notes, do not constitute probative medical evidence.9

2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, 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

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.607(a).

5

20 C.F.R. § 10.608(b).

6

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

7

Helen E. Paglinawan, 51 ECAB 591 (2000).

8

See Bradford L. Sutherland, 33 ECAB 1568 (1982).

9

See Merton J. Sills, 39 ECAB 572, 575 (1988).

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It is a well-established principle that the Board is best qualified by its expertise to judge
the probative value of certain types of testimony, such as hearsay. The Board has stated that
“technical objections regarding the nature of the evidence are seldom of great moment.”10
ANALYSIS
The Board finds that the Office improperly refused to reopen appellant’s case for further
review of the merits, as the evidence submitted by appellant in support of his June 12, 2007
reconsideration request is relevant and pertinent new evidence not previously considered.11
Appellant submitted several documents, including a June 22, 2006 deposition from Dr. Gargour,
who opined that appellant’s fall on July 28, 2004 exacerbated a preexisting L4-5 herniated disc.12
In its December 6, 2007 decision, the Office found that Dr. Gargour’s deposition could not be
considered “valid medical evidence” because it was unsigned. The Board disagrees.
A medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as a “physician” as defined in the Act.13
The Board has found that reports lacking proper identification, such as unsigned treatment notes,
do not constitute probative medical evidence.14 However, the fact that a document is not signed
does not, in and of itself, negate its authenticity or reliability. Although Office regulations
provide that a medical report “should” bear the physician’s signature or signature stamp,15 the
signature is not required. It is a well-established principle that the Board is best qualified by its
expertise to judge the probative value of certain types of testimony, such as hearsay. In the
instant case, Dr. Gargour offered his testimony under oath before a licensed court reporter. The
record reflects that Dr. Gargour waived his right to sign the deposition. The Board finds that the
absence of Dr. Gargour’s signature was cured by the signature of the court reporter, who attested
under oath to the accuracy of his testimony.16 The Board notes that Dr. Gargour is not a stranger
10

A. Larson, The Law of Workers’ Compensation § 127 (2000). See Frederick Nightingale, 6 ECAB 268 (1953)
(noting the informal processes employed in the administration and development of compensation cases, the
techniques of investigation which sometimes lead to records replete with hearsay evidence, and the Office’s
responsibility to evaluate such evidence in light of all of the surrounding facts and circumstances of a particular
case). Id. at 271.
11

20 C.F.R. § 10.606(b)(2).

12

The Board notes that the remaining documents submitted by appellant in support of his request for
reconsideration were either duplicative, cumulative or irrelevant.
13

See Bradford L. Sutherland, supra note 8.

14

See Merton J. Sills, supra note 9.

15

See 20 C.F.R. § 10.331.

16

The Board has previously accepted depositions as probative medical evidence. See, e.g., M.G., Docket No. 061092 (issued August 24, 2006) (where the Board found a conflict in medical opinion based, in part, on the
deposition testimony of claimant’s attending physician); Toni J. Stephens, Docket No. 05-559 (issued February 14,
2006) (where the Board found an unresolved conflict in medical opinion evidence based on the deposition of the
impartial medical examiner); Jeanne Bragg, Docket No. 05-424 (issued February 9, 2006) (where the Board found
that the deposition testimony of claimant’s treating physician constituted sufficient evidence to warrant further
development of her claim).

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to this case. The fact that the record contains earlier medical reports, signed by Dr. Gargour and
submitted on his letterhead, further supports the authenticity of the deposition testimony.
The Board finds that Dr. Gargour’s deposition constitutes pertinent new evidence
relevant to the underlying issue in this case, namely, whether the medical evidence submitted
establishes a causal relationship between the claimed medical condition and the established
employment incident. This new evidence was not previously considered by the Office;
therefore, it is sufficient to require further review of the case on its merits.17 The case will
therefore be remanded for consideration of Dr. Gargour’s June 22, 2006 deposition, together
with the previously submitted evidence of record, and a decision on the merits as to whether
appellant sustained a traumatic injury on July 28, 2004.
CONCLUSION
The Office improperly denied appellant’s request for a merit review pursuant to section
8128(a) of the Act in its December 6, 2007 decision.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent
with the terms of this decision.
Issued: September 5, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

20 C.F.R. § 10.606(b)(2). See Donald T. Pippin, 54 ECAB 631 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Westfield, MA, Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1604
Issued: January 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2007 appellant, through his attorney, filed a timely appeal from a March 1,
2007 merit decision of a hearing representative of the Office of Workers’ Compensation
Programs affirming a pay rate determination.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly calculated appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
On March 12, 2002 appellant, then a 50-year-old weapons supervisor, filed a claim
alleging that he sustained a torn left biceps muscle on that date in the performance of duty. The
1

The hearing representative set aside a December 28, 2005 decision finding that appellant was entitled to a
schedule award for a 13 percent left upper extremity impairment.

Office accepted appellant’s claim for a ruptured left biceps. On May 2, 2004 the employing
establishment separated appellant from employment because he was no longer able to be a
member of the National Guard.
On September 16, 2004 appellant underwent cervical decompression and laminoplasty at
C3 to 7 and a posterolateral fusion. He requested compensation from the Office beginning that
date. On October 4, 2004 appellant informed the Office that because of his March 12, 2002
injury he was “only able to perform limited military duty” which negatively affected his earning
compared with the year before his injury. He further noted that he was medically discharged
from his military position. Appellant submitted a June 15, 2004 letter from the employing
establishment indicating that he earned $28,888.31 for active military duty from March 2001 to
March 2002 and $6,353.10 from May 2003 to May 2004.
On January 19, 2005 the Office accepted that appellant sustained a recurrence of
disability beginning September 16, 2004. On February 10, 2005 appellant submitted a claim for
compensation on account of disability, requesting compensation beginning September 16, 2004.
The employing establishment indicated that he retired on disability because he was unable to
keep his military membership due to his employment injury.
The Office calculated appellant’s compensation based on a pay rate at the time disability
began on September 16, 2004. The Office included night differential, hazard pay and drill pay in
its calculations to find a total weekly pay rate of $1,645.39. The Office, however, paid appellant
compensation retroactive to September 16, 2004 using a pay rate of $1,083.23.
On April 5, 2005 appellant’s attorney requested pay rate information. He also contended
that appellant did not resume his usual employment following his work injury.
On May 12, 2005 the Office informed appellant’s attorney that it had not included drill
pay of $555.45 per week in paying compensation. The Office noted that his pay rate was
$1,645.39 per week including drill pay and that it would make an adjusted payment.
In a May 13, 2005 electronic message, the employing establishment notified the Office
that appellant “was deployed during the period March 2001 to March 2002 so his military pay
was overstated at $28,888.31 [per year]. [Appellant] returned to his technician job in 2003 and
his drill pay for [the] period May 2003 to May 2004 was $6,353.10. This is the amount that
should be used. This amount is the ‘average’ amount for a technician at his grade.”
On June 7, 2005 the Office advised appellant’s attorney that he was not entitled to an
additional $555.45 per week according to the employing establishment. Appellant’s additional
drill pay was $122.59 per week, “which was the average weekly drill pay for the year prior to the
date of his recurrence of September 16, 2004.”
By letter dated June 8, 2005, appellant’s attorney contended that the applicable pay rate
date was May 12, 2002, the date of injury, rather than September 16, 2004, the date disability
began. On October 13, 2005 the attorney noted that military pay would be included regardless of
whether the pay rate was the date of injury or the date of recurrence as appellant was under a
presidential “call.” In an October 25, 2005 telephone call, the employing establishment informed
2

the Office that appellant’s pay rate on March 12, 2002 was higher than on September 16, 2004.
By letter dated November 1, 2005, the Office notified his attorney that it used the date of
recurrence pay rate of $1,1212.10 in determining his wage-earning capacity.
In a decision dated November 8, 2005, the Office reduced appellant’s compensation
effective May 15, 2005 on the grounds that his actual earnings as a counter/parts/service
salesman fairly and reasonably represented his wage-earning capacity. The Office determined
his wage-earning capacity using a weekly pay rate of $1,212.53.
On November 21, 2005 appellant requested an oral hearing. By letter dated December 5,
2005, counsel stated:
“[Appellant’s] pay should include his regular pay, night differential pay for the
year prior, as well as his National Guard pay for the year prior, since membership
in the National Guard was a condition of his federal civilian employment.
Moreover, his National Guard pay should include wages paid for attending drills
and field training plus earnings received for active [f]ederal service under a
presidential ‘call.’ The Office should then choose the higher pay rate date of
injury or date of recurrence.”
The attorney contended that the Office failed to consider appellant’s earnings for active
military duty in determining that the date of recurrence was the effective pay rate date. He
asserted:
“[Appellant’s] unit was called to active [f]ederal service by the President and
participated in Operations Enduring Freedom and Iraqi Freedom (copy of ‘Short
History of the 104th Fighter Wing’ enclosed). In addition to his earnings for this
active [f]ederal service under the presidential ‘call,’ [he] also received his full
civilian pay during this time, which is why it is only fair to include his earnings
received for active [f]ederal service under a presidential ‘call’ in his pay rate.”
By decision dated December 28, 2005, the Office granted appellant a schedule award for
a 13 percent permanent impairment of the left upper extremity. The period of the award ran for
40.56 weeks from November 27, 2005 to August 16, 2006. The Office paid him based on a pay
rate of $1,212.10. On January 9, 2006 appellant requested an oral hearing on the schedule award
determination.
In a decision dated January 17, 2006, an Office hearing representative determined that the
case was not in posture for an oral hearing. He vacated the November 8, 2005 decision after
finding that it was unclear whether the Office used the proper pay rate for compensation
purposes in determining appellant’s wage-earning capacity. The hearing representative found
that the Office did not consider appellant’s earnings for military service under a presidential
“call” in determining the pay rate date.

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By letter dated February 6, 2006, the National Guard noted that the Office included
earnings for active military service performed under a presidential call in calculating an
employee’s pay rate and stated:
“What is not clear is what constitutes a ‘presidential call.’ Currently, the National
Guard is operating under Presidential Executive Order 13223 dated 14
September 2001 with amendments. The orders of personnel activated for the war
on terror generally contain or reference this information.
“A review of orders submitted by [appellant’s] unit indicates that he performed a
variety of active duty during the period in question. However, the majority of the
time was for annual training days with duty under Title 32. One order (RU-7) is
for Title 10 Military Personnel Appropriation day active duty.2 Finally, his
DD214 indicates one month and three days of active duty with no other
explanation. None of the documentation indicates that he was activated due to the
Presidential Call up as a result of Executive Order 13223 dated 14
September 2001.”
The National Guard questioned whether appellant would receive his salary for drills and
training with the National Guard when his status changed from a Title 32 to a Title 10 employee
and asserted that paying appellant a “salary and full military wages for the same period does not
seem ‘fair and reasonable.’”
The National Guard submitted orders for appellant dated December 13, 2000 to
June 6, 2001. The orders do not indicate that he performed active military duty under Title 10.
By decision dated April 4, 2006, the Office found that a review of appellant’s orders for
the year did not establish that he was activated due to a presidential call. The Office thus
concluded that it had properly calculated his pay rate for compensation purposes.
On April 24, 2006 appellant requested an oral hearing on the April 4, 2006 decision. His
attorney submitted copies of his active-duty military orders issued under Title 10 of the U.S.C.
and orders from the National Guard issued under Title 32 of the U.S.C. Appellant also submitted
a copy of Executive Order 13223 dated September 14, 2001 granting authority under Title 10 of
the U.S.C. to the Department of Defense and the Department of Transportation to order any
member of the reserve to active duty. Appellant received an undated order instructing him to
perform duty on October 1, 2001 for the purpose of Operation Resolve. The authority cited for
the order was 10 U.S.C. § 12301(d).3 Appellant also received orders under Title 10 for the
purpose of Operation Resolve for the periods October 15, 20 to 22 and 27 to 29, 2001. He
received an order dated October 19, 2001 citing Title 10 as its authority and listing as the
2

Title 10 of the United States Code (U.S.C.) is relevant to the Armed Forces and Title 32 of the U.S.C. is relevant
to the National Guard.
3

10 U.S.C. § 12301(d) provides in part, “At any time, an authority designated by the Secretary concerned may
order a member of a reserve component under his jurisdiction to active duty or retain him on active duty, with the
consent of that member.”

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purpose Operation Enduring Freedom. On January 9, 2002 appellant received instructions to
work during portions of January, February and March 2002 with the cited authority Title 10
§ 12301(d).
In a letter dated June 20, 2006, the employing establishment indicated that appellant’s
request for active-duty orders “were interpreted to relate to only [f]ederal active duty under Title
10 of the United States Code, in that there is no ‘active duty’ under Title 32 of the Code.”
By letter dated June 29, 2006, appellant’s attorney argued that the case was not in posture
for an oral hearing on either the schedule award determination or pay rate issue. He argued that
the employing establishment’s assertion that appellant was not on active duty due to a
presidential call was inconsistent with the facts. The attorney stated: “For example, Special
Order #RU-5, issued 19 October 2001, recites as the purpose of the order as ‘Operation Enduring
Freedom,’ which was part of Presidential Executive Order 13223 of September 14, 2001.”
By decision dated March 1, 2007, the hearing representative affirmed the April 4, 2006
decision regarding the Office’s calculation of appellant’s pay rate and set aside the decision on
the issue of his entitlement to a schedule award. He remanded the case for further development
on the issue of whether appellant had more than a 13 percent left upper extremity impairment.
The hearing representative found that appellant had not submitted probative evidence supporting
that he was entitled to augmented compensation because he was subject to a presidential “call.”
LEGAL PRECEDENT
Section 8105(a) of the Federal Employees’ Compensation Act4 provides: “If the
disability is total, the United States shall pay the employee during the disability monthly
monetary compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”5 Section 8110(b) of the Act provides that total disability
compensation will equal three fourths of an employee’s monthly pay when the employee has one
or more dependents.6 Pay rate for compensation purposes is defined in section 8101(4) as the
monthly pay at the time of injury, the time disability begins or the time disability recurs, if the
recurrence is more than six months after returning to full-time work, whichever is greater.7
The Office’s procedure manual provides that wages paid for National Guard service are
included in pay rate calculations when membership in the National Guard is a condition of an
employee’s civilian employment with the National Guard. Such wages include those paid for

4

5 U.S.C. §§ 8101-8193.

5

5 U .S.C. § 8105(a).

6

5 U.S.C. § 8110(b).

7

5 U.S.C. §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

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attending drills and field training.8 The procedure manual further provides that earnings received
by an employee under a presidential “call” are included in pay rate calculations.9
Although it is appellant’s burden to establish his claim, the Office is not a disinterested
arbiter but, rather, shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.10 The Office shares responsibility to see that justice is done.11
ANALYSIS
The Office accepted that appellant sustained a ruptured left biceps due to a March 12,
2002 employment injury. The Office further authorized a September 16, 2004 cervical
decompression and fusion at C3-7 and paid him compensation beginning that date. At the time
of appellant’s employment injury, he worked in federal employment as a civilian and as a
member of the National Guard. The Office did not include appellant’s pay for active military
service in determining his pay rate for compensation purposes. The Office calculated his pay
rate on the date disability began rather than the date of injury because it found that this was the
higher amount. Appellant’s attorney contended that he was entitled to military pay earned the
year prior to his employment injury for active duty because he was under a presidential “call.”
On February 6, 2006 the National Guard acknowledged that earnings for active military service
were included if performed under a presidential “call” but stated that the meaning of a
presidential “call” was unclear. It noted that the National Guard currently operated under
Presidential Executive Order 13223, dated September 14, 2001. The National Guard indicated
that the majority of appellant’s orders were for training days under Title 32 of the U.S.C.,
relevant to the National Guard. One order was for active military duty under Title 10 of the
U.S.C. but did not specifically indicate that it was the result of the presidential call up pursuant to
Executive Order 13223.
Appellant’s attorney submitted a copy of the Presidential Executive Order 13223 granting
authority under Title 10 of the U.S.C. to the Department of Defense and the Department of
Transportation to order any member of the reserve to active duty. He also submitted orders
appellant received to perform duty in October 2001 issued under Title 10 of the U.S.C. and
stating as the orders’ purpose Operation Resolve. Appellant also received an order dated
October 19, 2001 issued pursuant to Title 10 which listed as its purpose Operation Enduring
Freedom. On January 9, 2002 appellant received instructions to work during portions of
January, February and March 2002 with the cited authority Title 10 of the U.S.C. The
employing establishment confirmed that any work performed under Title 10 was for active
military service. The question remains whether appellant’s active military service was the result
of a presidential “call.”
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining:
(December 1995).
9

Id.

10

See Claudia A. Dixon, 47 ECAB 168 (1995).

11

Jimmy A. Hammons, 51 ECAB 219 (1999).

6

Pay Rates, Chapter 2.900.7(13)

The Board finds that further development of the record is required. In order to properly
adjudicate the claim, it is important to secure evidence regarding appellant’s status on active
military duty during the period in question. It is currently unclear from the record whether any
of the orders he received under Title 10 for the year preceding March 12, 2002 resulted from a
presidential call. On February 6, 2006 the National Guard indicated that it reviewed one Title 10
order issued to appellant and it did not indicate that he was on military service due to a call from
the President. Appellant’s attorney, however, submitted multiple Title 10 orders he received
after September 2001 citing as their purpose Operation Resolve and Operation Enduring
Freedom. On remand, the employing establishment should address the significance of the
operational designations and clarify whether appellant performed active military service as a
result of a presidential “call.” Following such further development as the Office deems
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 1, 2007 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: January 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bristol, CT, Employer
__________________________________________

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

Docket No. 19-0108
Issued: April 16, 2019

Case Submitted on the Record

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

JURISDICTION
On October 17, 2018 appellant filed a timely appeal from an August 17, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted July 19, 2017 employment incident.
FACTUAL HISTORY
On July 19, 2017 appellant, then a 40-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that he injured his right shoulder when trying to start a weed wacker while
in the performance of duty. He was pulling the start cord when he felt a pop in his right shoulder.
1

5 U.S.C. § 8101 et seq.

Appellant stopped work that day and resumed work on July 21, 2017. On July 19, 2017 the
employing establishment executed an authorization for examination and/or medical treatment
(Form CA-16) authorizing treatment for his claimed right shoulder injury.
On July 19, 2017 appellant was treated at an urgent care facility by Rishita N. Patel, an
advanced practice registered nurse. She noted a history of injury that transpired on July 19, 2017
while pulling the start cord of a weed wacker. A July 19, 2017 right shoulder x-ray was negative.
Ms. Patel diagnosed right shoulder sprain/strain and advised that appellant could perform
light-duty work from July 19 to 21, 2017. Appellant was to wear a sling on his right arm, avoid
repetitive grasping/pinching, and avoid pushing/pulling. Ms. Patel also imposed a 10-pound
lifting restriction and precluded work at or above shoulder level. She completed a duty status
report (Form CA-17) as well as the attending physician’s report that accompanied the Form CA-16.
On both form reports Ms. Patel indicated that appellant’s diagnosed condition was employment
related.
A July 21, 2017 duty status report (Form CA-17) from Geoffrey P. Robinson, a physician
assistant, reported a July 19, 2017 date of injury and noted a diagnosis of sprain, and advised that
appellant could work full-time limited duty with restrictions that were more restrictive than those
of Ms. Patel. In July 28, 2017 follow-up treatment notes, he diagnosed right shoulder strain.
Mr. Robinson provided additional follow-up treatment notes and duty status reports (Form CA-17)
dated July 28 and August 4, 11, and 18, 2017. He continued to diagnose right shoulder strain.
Mr. Robinson imposed a 35-pound restriction with respect to lifting and pushing/pulling. On
August 11, 2017 he referred appellant for physical therapy treatment. Appellant began authorized
physical therapy on August 16, 2017. Mr. Robinson continued to evaluate appellant through
August 28, 2017, at which time he referred appellant to an orthopedist.
On August 29, 2017 Dr. Christopher M. Betz, an orthopedic surgeon, treated appellant for
right shoulder pain. Findings on examination revealed restricted range of motion of the right
shoulder, painful joints, and reduced abduction strength. X-rays of the right shoulder revealed no
abnormalities. Dr. Betz diagnosed right rotator cuff tear and recommended a magnetic resonance
imaging (MRI) scan.
In a development letter dated October 4, 2017, OWCP advised appellant that his claim was
originally received as a simple, uncontroverted case which resulted in minimal or no time lost from
work. It indicated that his claim was administratively handled to allow limited medical payments,
but the merits of the claim had not been formally adjudicated. OWCP advised that, because the
medical bills had exceeded $1,500.00, his claim would be formally adjudicated. It further advised
appellant of the deficiencies of his claim and indicated that additional medical evidence was
necessary to establish his claim. OWCP afforded him 30 days to submit the necessary evidence.
A September 15, 2017 right shoulder MRI scan revealed a massive full-thickness tear
involving the entire supraspinatus and infraspinatus tendons. There was also evidence of a superior
subluxation of the humeral head and a full-thickness tear of the subscapularis tendon with
dislocation of the long head biceps tendon.
On October 2, 2017 Dr. Betz noted that appellant complained of pain in the whole shoulder
and noted that physical therapy had not relieved his symptoms. Findings on examination revealed

2

restricted range of motion of the right shoulder, painful joints, and reduced abduction strength.
Dr. Betz also reviewed appellant’s recent right shoulder MRI scan. He diagnosed tear of the right
rotator cuff and recommended a rotator cuff repair.
OWCP also received additional physical therapy treatment records through
September 10, 2017.
By decision dated November 13, 2017, OWCP accepted that the July 19, 2017 incident
occurred as alleged and that a medical condition had been diagnosed. However, it denied
appellant’s traumatic injury claim, finding that he had not met his burden of proof to establish
causal relationship between the diagnosed right rotator cuff tear and the accepted July 19, 2017
employment incident.
OWCP subsequently received a copy of appellant’s July 19, 2017 urgent care treatment
records signed by Ms. Patel, who diagnosed right shoulder sprain. It also received his July 21,
2017 initial treatment report from Mr. Robinson, who diagnosed right shoulder strain.
In a January 11, 2018 report, Dr. Betz noted that appellant had been under his care for right
shoulder pain and noted that a September 15, 2017 right shoulder MRI scan revealed a fullthickness rotator cuff tear and he recommended surgery. He opined that as appellant did not have
symptoms prior to the injury that it was highly likely that the employment incident was the cause
of appellant’s injuries.
On July 13, 2018 appellant requested reconsideration of OWCP’s November 13, 2017
decision.
By decision dated August 17, 2018, OWCP denied modification of the November 13, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

2

Id.

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the employment incident.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted July 19, 2017 employment incident.
The treatment records from Ms. Patel, a nurse, and Mr. Robinson, a physician assistant, are
insufficient to satisfy appellant’s burden of proof as neither individual is a physician as defined

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

under FECA.13 Appellant’s physical therapy treatment records are similarly insufficient to meet
his burden of proof.14
An MRI scan of the right shoulder dated September 15, 2017 revealed a massive fullthickness tear involving the entire supraspinatus and infraspinatus tendons. The Board has held
that reports of diagnostic tests lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment duties and a diagnosed condition.15
In reports dated August 29 and October 2, 2017, Dr. Betz treated appellant for right
shoulder pain which began on July 19, 2017. He noted findings on examination and diagnosed
tear of the right rotator cuff as confirmed by MRI scan. While Dr. Betz repeated the history of
injury as reported by appellant, Dr. Betz did not provide his own opinion regarding whether
appellant’s condition was work related. The mere recitation of patient history does not suffice for
purposes of establishing causal relationship between a diagnosed condition and the employment
incident.16 Without explaining physiologically how the accepted employment incident caused or
contributed to the diagnosed conditions, the physician’s reports are of limited probative value.17
On January 11, 2018 Dr. Betz opined that as appellant did not have symptoms prior to the
injury that it was highly likely that the employment incident was the cause of appellant’s injuries.
He related appellant’s current right shoulder condition to the employment injury, but his only
rationale for doing so was that appellant had no symptoms prior to the employment injury. The
Board has held that an opinion that a condition is causally related to an employment injury because
the employee was asymptomatic before the injury is insufficient, without supporting rationale, to
establish causal relationship.18
The Board thus finds that appellant has not submitted sufficient medical evidence and has
thus not met his burden of proof to establish that a right shoulder condition causally related to the
accepted July 19, 2017 employment incident.19
13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered medical evidence if
countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013).
14

Id.; T.H., Docket No. 18-1736 (issued March 13, 2019).

15

See J.M., Docket No. 17-1688 (issued December 13, 2018).

16

See J.G., Docket No. 17-1382 (issued October 18, 2017).

17

See A.B., Docket No. 16-1163 (issued September 8, 2017).

18

Kimper Lee, 45 ECAB 565 (1994).

19

The Board notes that the employing establishment issued appellant a signed Form CA-16 authorizing treatment
for his July 19, 2017 right shoulder injury. The Board has held that where an employing establishment properly
executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, it creates a contractual obligation which does not involve the employee directly to pay the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304; R.W., Docket
No. 18-0894 (issued December 4, 2018).

5

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 right shoulder
condition causally related to the accepted July 19, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
DEPARTMENT OF DEFENSE, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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)
)
)
)
)

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

Docket No. 07-2056
Issued: March 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 2, 2007 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated April 26, 2007 granting him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
schedule award.
ISSUE
The issue is whether appellant has more than five percent right upper extremity
impairment and five percent left upper extremity impairment, for which he received a schedule
award.
FACTUAL HISTORY
On February 19, 2003 appellant, then a 44-year-old plastic fabricator, filed an
occupational disease claim alleging that his carpal tunnel syndrome was employment related.
The Office accepted the claim for bilateral wrist strain, trigger finger and bilateral carpal tunnel

syndrome. Right carpal tunnel surgery occurred on November 15, 2005 and left carpal tunnel
and trigger finger surgery on August 30, 2005. On May 31 and November 30, 2006 appellant
filed claims for a schedule award.
On July 5, 2006 Dr. Daniel I. Singer, a treating physician specializing in orthopedic and
hand surgery, noted that appellant had full range of motion. He recommended referral for an
impairment rating for some probably mild impairment status post bilateral carpal tunnel release.
On December 20, 2006 the Office referred appellant for a second opinion to Dr. Larry N.
Magnussen, a Board-certified orthopedic surgeon. In a medical report dated March 1, 2007,
Dr. Magnussen provided measurements with regard to motion, strength and grip. He applied the
American Medical Association, Guides to the Evaluation of Permanent Impairment and
determined that appellant had bilateral carpal tunnel syndrome and bilateral long fingers
stenosing tenosynovitis. Dr. Magnussen stated:
“The patient continues to have pain, numbness and pinpricking with excessive
repetitious use of the hands particularly when using vibrating tools. There is
diminished right grip strength as well as diminished sensation to pinprick at
thumb, index and long finger on the right and the index and long fingers on the
left, both of which have absence of sharp perception. Electrodiagnostic testing
consistent with bilateral carpal tunnel syndrome. Surgical scars both hands.
Subjective complaints are ongoing and are associated with repetitious and
stressful use of both hands particularly in gripping situations.”
He opined that appellant reached maximum medical improvement on July 5, 2006.
Dr. Magnussen concluded that appellant had a five percent impairment of each upper extremity
due to his residual carpal tunnel syndrome.
On March 22, 2007 the Office referred appellant’s case to the Office medical adviser. In
a report dated April 12, 2007, the Office medical adviser stated that he was in agreement with the
impairment rating of five percent to the left upper extremity provided by Dr. Magnussen. He
noted that, based on the A.M.A., Guides, the maximum impairment rating for an individual who
had a “satisfactory result following carpal tunnel release” is a five percent impairment. The
Office medical adviser related that the “five percent impairment takes into account any residual
symptoms the patient has been having as a result of the right middle trigger finger surgery.” He
also noted that appellant’s condition was not significantly changed from that of July 5, 2006,
when he was felt to have reached maximum medical improvement by Dr. Singer.
By decision dated April 26, 2007, the Office granted schedule awards for a five percent
left upper extremity impairment and five percent right upper extremity impairment. The period
of the award was for 31.2 weeks and ran from April 20 to November 24, 2006.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
The A.M.A., Guides evaluates the permanent impairment caused by carpal tunnel
syndrome by determining whether such a condition falls within one of three categories discussed
in section 16.5d.4 Under the first category, if there are positive clinical findings of median nerve
dysfunction and an electrical conduction delay, the condition is rated under the standards found
earlier in Chapter 16 for evaluating sensory or motor deficits due to peripheral nerve disorders.
Under the second category, if there is normal sensibility (evaluated by two-point discrimination
and Semmes-Weinstein monofilament testing) and normal opposition strength with abnormal
sensory and/or motor latencies or abnormal electromyography (EMG) testing of the thenar
muscles, an impairment rating not to exceed five percent of the upper extremity may be justified.
Under the third category, if there is normal sensibility, opposition strength, and nerve conduction
studies, there is no objective basis for an impairment rating.5
ANALYSIS
The Office determined that appellant had five percent impairment to his left and right
upper extremities. Both Dr. Magnussen and the Office medical adviser agreed as to the extent of
impairment after applying the A.M.A., Guides. Pursuant to the A.M.A., Guides, the second
category Chapter 16, section 16.5d states that, when normal sensibility and opposition strength
with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles, a
residual carpal tunnel syndrome is still present, an impairment rating not to exceed five percent
of the upper extremity may be justified.6 Both physicians determined that, based on appellant’s
residuals following surgery, he had five percent impairment to each upper extremity. The Board
finds that both physicians properly applied the A.M.A., Guides. There is no evidence of record
that appellant sustained greater than five percent impairment to each upper extremity. The

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.; see Billy B. Scoles, 57 ECAB ___ (Docket No. 05-1696, issued December 7, 2005).

4

See A.M.A., Guides 495.

5

Id.

6

Id. at 495.

3

Office properly found that appellant had five percent impairment to his left upper extremity and
five percent impairment to his right upper extremity.
CONCLUSION
The Board finds that appellant does not have more than five percent impairment of his
left upper extremity and five percent impairment of his right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 26, 2007 is affirmed.
Issued: March 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 11-1568
Issued: February 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 21, 2011 appellant filed a timely appeal from a May 27, 2011 overpayment
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 OWCP properly found that appellant received an
overpayment in the amount of $2,095.18 from July 1 through September 25, 2010 because she
concurrently received FECA and Social Security Administration (SSA) benefits without an
appropriate retirement benefit offset; (2) whether it properly denied waiver of the recovery of the
overpayment; and (3) whether OWCP properly directed recovery of the overpayment in full.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 12, 2004 OWCP accepted that appellant, then a 59-year-old custodian,
sustained aggravation of spinal stenosis of the lumbar region due to the repetitive duties of her
job. It authorized decompressive laminectomy, medial facetectomy and foraminotomy at L3-4,
L4-5 and L5-S1, which she underwent on April 28, 2004. OWCP placed appellant on the
periodic rolls on July 11, 2004 and paid her appropriate compensation for total disability.2
On June 3, 2010 appellant advised OWCP that she would be turning 66 years old in
July 2010 and she would receive her full retirement benefits from the SSA under the Federal
Employee Retirement System (FERS). It responded that an offset may occur for the percentage
of her retirement earned during her federal employment.
On October 5, 2010 OWCP was notified by Antonio Johnson that appellant received SSA
retirement benefits effective July 1, 2010. Mr. Johnson provided SSA rates with a FERS offset
and without a FERS offset for the applicable period. OWCP, however, failed to offset the
portion of appellant’s social security benefit under FERS that was based upon her federal civilian
service.
In an October 12, 2010 letter, OWCP informed appellant that, because she had been
receiving FERS and SSA benefits and was not entitled to receive both FERS benefits and FECA
benefits, her FECA benefits would be adjusted to reflect the FERS portion of her SSA benefits.
By notice dated November 1, 2010, OWCP advised appellant of its preliminary
determination that she received an overpayment in the amount of $2,095.18 from July 1 through
September 25, 2010 because she received compensation benefits under FECA that were not
reduced by the FERS portion of her SSA retirement benefits.3 An OWCP worksheet indicated
that the 28-day FERS offset for the stated period totaled $2,095.18.4 Appellant was without fault
in creating the overpayment. OWCP requested that she complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. It notified appellant that,

2

In an October 12, 2007 decision, OWCP reduced appellant’s compensation effective October 28, 2007 based on
her capacity to earn wages in the constructed position of medical office assistant. In a May 28, 2008 decision, it
found that she received an overpayment of $1,042.00 for the period October 28 through November 24, 2007 because
she continued to received total disability compensation when her compensation should have been reduced effective
October 28, 2007 to reflect her wage-earning capacity. Appellant was found to be without fault in the creation of
the overpayment. On March 3, 2008 OWCP granted her a schedule award for nine percent impairment of each
lower extremity.
3

On October 13, 2010 OWCP reduced appellant’s compensation for the period September 26 through
October 23, 2010 to reflect the FERS offset and her health insurance premium.
4

Effective July 1, 2010 appellant’s SSA rate was $1,307.00 a month with FERS and $576.50 without. The
monthly difference was $730.50. Multiplying by 12 and dividing by 13 to convert the monthly difference to a
28-day difference (OWCP pays compensation every 28 days), OWCP determined that it should have offset
appellant’s compensation benefits by $674.31 every 28 days beginning July 1, 2010. As there were 87 days from
July 1 through September 25, 2010, the dual benefit amounted to $2,095.18 for that period. OWCP concluded that
appellant received a total overpayment of $2,095.18 from July 1 through September 25, 2010.

2

within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence or a prerecoupment hearing.
On November 19, 2010 appellant requested a prerecoupment hearing and contended that
her retirement benefits did not start until the second Wednesday in October 2010 and not in July,
August or September 2010. She submitted an overpayment recovery questionnaire stating that
she received a letter from SSA indicating that her payments would increase from $927.00 to
$1,209.00 on the second Wednesday in October 2010. Appellant reported monthly income of
$606.00 in compensation benefits and $1,209.00 from social security, totaling $1,815.00. She
had $40.00 cash on hand, a checking account balance of $10,130.00, totaling $10,170.00.
Appellant listed monthly expenses which included $730.00 for rent or mortgage; $450.00 for
food; $70.00 for clothing; $495.00 for utilities; $500.00 for other expenses; $290.00 for Citibank
and U.S. bank loans; $90.00 for a Discover credit card; and $200.00 for a loan for valuable
property or real estate worth $70,000.00, totaling $2,825.00. She also submitted bank statements
indicating that she only received $927.00 each month from July through September 2010.
At the March 14, 2011 hearing, appellant contended that no overpayment was created
because the SSA benefits she received from July to September 2010 contained a FERS offset.
She testified that she had no dependents. Appellant also testified that she owned a mobile home
with a current market value of $70,000.00 and had a 401(k) balance of approximately
$69,000.00.
In a partial decision dated May 18, 2011, an OWCP hearing representative found that
appellant received an overpayment of $2,095.18 for the period July 1 to September 25, 2010.
On May 27, 2011 the hearing representative reissued the May 18, 2011 decision due to
missing pages. He found that appellant received an overpayment of $2,095.18 for the period
July 1 to September 25, 2010 because she received both SSA retirement benefits under FERS
and FECA benefits at the same time. Appellant was found to be without fault in the creation of
the overpayment. The hearing representative denied waiver of the recovery of the overpayment
noting that she had assets that exceeded the resource base of $3,000.00 from which to repay the
$2,095.18 overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
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 receives 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.5
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
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.6 The
5

5 U.S.C. § 8116(d); see Janet K. George (Angelos George), 54 ECAB 201 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.100.11(a) (b) (February 1995).

3

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits. SSA will provide the actual amount of SSA benefits received by the claimant/
beneficiary. SSA will also provide a hypothetical SSA benefit computed without the FERS
covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to
determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefit to obtain the amount of compensation payable.7
ANALYSIS -- ISSUE 1
The record establishes that appellant was placed on the periodic rolls on July 11, 2004
and received compensation benefits under FECA for the period July 1 through
September 25, 2010. The SSA provided information establishing that she received SSA benefits
beginning on July 1, 2010, her full retirement age and continuing through September 25, 2010
when OWCP began to offset her FECA benefits by the amount of her SSA benefits attributable
to her federal employment under FERS.8 SSA records provided the offset calculations for this
period that yielded an overpayment of compensation in the amount of $2,095.18.9 As appellant
is not entitled to receive both FECA benefits and that portion of her SSA benefits attributable to
her federal employment, OWCP properly determined that an overpayment in compensation in
the amount of $2,095.18 was created.10
Appellant contended that the overpayment amount was incorrect based upon her bank
statements which showed that she received SSA benefits in the amount of $927.00 each month
from July to September 2010. However, she did not submit any evidence providing the details of
these payments. The Board finds, therefore, that the information provided by the SSA
constituted a sufficient basis for calculating the overpayment amount in this case.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.11
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of

7

FECA Bulletin 97-09 (issued February 3, 1997).

8

Supra note 5.

9

Supra note 4.

10

Janet K. George (Angelos George), supra note 5.

11

20 C.F.R. § 10.433(a).

4

FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.12
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.13 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.14
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.15 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes her position for the worse.16
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.17

12

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

13

Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6(a) (June 2009). See Miguel A. Muniz, 54
ECAB 217 (2002); 20 C.F.R. §§ 10.436, 10.437.
14

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

15

20 C.F.R. § 10.437(a).

16

Id. at § 10.437(b).

17

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

5

ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment.
Because she is without fault, it may recover the overpayment only if recovery would not defeat
the purpose of FECA or be against equity and good conscience.
Appellant requested waiver of the overpayment and provided information on an
overpayment recovery questionnaire. She indicated that her monthly income was $1,815.00 and
her monthly expenses were $2,825.00. The questionnaire revealed that appellant had monthly
expenses which included rent or mortgage of $730.00, food of $450.00, clothing of $70.00,
utilities of $495.00, other expenses of $500.00, bank loans of $290.00, a Discover credit card of
$90.00 and loan of $200.00 for a trailer home worth $70,000.00. Assets included cash on hand
of $40.00 and a checking account balance of $10,130.00 for a total of $10,170.00. Appellant
also reported a 401(k) balance of approximately $69,000.00. The record establishes that,
although her monthly income does not exceed her monthly expenditures by more than $50.00,
her assets, including her bank accounts, mobile home and 401(k) far exceed the resource base of
$4,800.00 for an individual. The Board finds, therefore, that OWCP properly determined that
appellant is not entitled to a waiver.18
Further, there is no evidence in this case and appellant did not allege that she relinquished
a valuable right or changed her position for the worse in reliance on the excess compensation she
received from July 1 through September 25, 2010. Pursuant to its regulations, OWCP properly
found that recovery of the overpayment would not be against equity or good conscience.
As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$2,095.18.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant facts, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that the case is not in posture for decision regarding repayment of the
overpayment in full to recover the $2,095.18 overpayment. In this case, appellant is receiving
compensation based on her accepted employment-related aggravation of spinal stenosis of the
18

See E.M., Docket No. 07-785 (issued August 17, 2007); 20 C.F.R. § 10.436.

19

20 C.F.R. § 10.441(a).

6

lumbar region for which she was placed on the periodic rolls effective July 11, 2004. In the
May 27, 2011 final overpayment decision, OWCP requested that appellant repay the overpaid
amount of compensation in full based on her assets. However, it failed to provide her with the
additional appropriate recovery method of deduction of the installment payments from periodic
compensation in accordance with its procedures. As appellant is receiving compensation
benefits and has not refunded the amount owed to OWCP, recovery of the overpayment must be
made by decreasing subsequent payments of compensation. Neither FECA, nor its implementing
regulations make any provision for a mandatory lump-sum repayment by a claimant who is
receiving continuing compensation benefits and is not entitled to any accrued compensation
benefits.20 On remand, therefore, OWCP should apply the criteria of section 10.441(a) of the
regulations to arrive at a proper repayment schedule.21
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $2,095.18 from July 1 through September 25, 2010. The Board
further finds that OWCP properly denied waiver of the recovery of the overpayment. The Board
finds, however, that OWCP improperly directed recovery of the overpayment in full as appellant
continues to receive compensation benefits.

20

See Barbara Hughes, 48 ECAB 398, 403 (1997).

21

Supra note 19.

7

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part, regarding the fact and amount of the
overpayment and waiver of recovery of the overpayment, but is set aside and remanded for
further development on the issue of rate of recovery consistent with this decision.
Issued: February 15, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
D.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BORDER PATROL, Chula Vista, CA, Employer
__________________________________________

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

Docket No. 12-512
Issued: July 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERLD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 10, 2012 appellant filed a timely appeal from a November 16, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established a pulmonary infection causally related to
his federal employment.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional medical evidence. The Board’s review of evidence is limited to
evidence that was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 20, 2011 appellant, then a 50-year-old seized property specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained a coccidioidomycosis
infection as a result of his federal employment.3 He alleged that he was exposed to dirt particles
while at work from a construction site in a neighboring lot. Appellant stated that the wind would
blow the particles into the seizure lot and the soil in the area was known to have the pathogen
causing coccidioidomycosis.
Appellant submitted a hospital report noting that he was admitted on September 13, 2010
with respiratory symptoms. The discharge diagnosis was coccipneumonia. Appellant also
submitted a March 15, 2011 note from Dr. Mark Johnson, a Board-certified internist, diagnosing
coccidioidomycosis.
By letter dated June 30, 2011, OWCP requested additional evidence with respect to his
compensation claim. In a letter dated July 21, 2011, a supervisor stated that appellant’s job
duties included inventory inspection of all seized motor vehicles. He stated that from
February 2010 to February 2011 there was construction on the lot next to the seizure lot, and dirt
and dust particles were carried over the seizure lot. According to the supervisor, the particles
may have contained the coccidioides pathogen, but no precautions had been taken. In an undated
statement, appellant noted that construction on the neighboring site began in April or May 2010.
He worked three to four hours a day and believed the particles contained the pathogen causing
coccidioidomycosis.
Appellant submitted reports from Dr. Johnson dated October 28, 2010 to April 12, 2011.
In an October 28, 2010 report, Dr. Johnson provided a history noting that appellant had traveled
to the Middle East, Australia and Japan. He diagnosed coccipneumonia. In a report dated
July 28, 2011, Dr. Johnson stated that appellant had been diagnosed with severe bilateral
pulmonary coccidioidomycosis in September 2011 [sic] based on chest computed tomography,
serum results and immunodiffusion testing.
By decision dated November 16, 2011, OWCP denied appellant’s claim for
compensation. It found that the factual evidence established only exposure to dust particles, and
the medical evidence was insufficient to establish causal relationship between the diagnosed
condition and employment factors.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4

3

Coccidioidomycosis is a systemic fungal infection. See Western Journal of Medicine, August 1993, 153-71.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.8
ANALYSIS
With respect to the factual allegations, appellant stated that he was exposed to dirt and
dust particles from a neighboring construction site while he was performing his job duties. A
supervisor indicated that there was construction in the adjacent lot, which appellant stated had
begun in April or May 2010 to February 2011. The wind blew particles over the work site. The
record therefore would support a finding that appellant was exposed to dirt and dust particles
during this time frame; however, there were no soil tests submitted to confirm the presence of
coccidioidomycosis.
The Board notes that the extent of the exposure is not clear from the record. Appellant
generally indicated that he worked three to four hours a day, but he did not provide a detailed
description of the work site, the neighboring site, discuss whether the exposure was intermittent
or constant, or provide other relevant information. As noted, there was no probative evidence
submitted with respect to any specific pathogen in the particles. The supervisor provided no
indication that the employing establishment had tested the soil at the work site or had any
specific evidence regarding the coccidioides fungus.
As to the medical evidence, there is no medical opinion relating the diagnosed
coccidioidomycosis to appellant’s exposure in his federal employment. Dr. Johnson did not
discuss exposure at work to dust or dirt particles, or provide an opinion on causal relationship.
The Board notes that any medical opinion on causal relationship must be based on a complete

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.

3

and accurate history and must be supported by medical rationale. In the absence of such
evidence, appellant has not met his burden of proof.9
The Board finds that appellant did not meet his burden of proof. The factual evidence
establishes exposure to dust and dirt particles, but does not establish exposure to any specific
pathogen or mold spores. In addition, the medical evidence does not provide a rationalized
medical opinion on causal relationship between any diagnosed condition and the employment
exposure.
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 established a pulmonary infection casually related
to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2011 is affirmed.
Issued: July 10, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

See Gilbert Banks, Sr., 30 ECAB 271 (1978) (claimant alleged coccidioidomycosis causally related to exposure
in federal employment, but submitted no probative medical evidence on causal relationship).

4


United States Department of
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
LOGISTICS CENTER, HILL AIR FORCE
BASE, UT, Employer
__________________________________________

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

Docket No. 08-2514
Issued: June 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 20, 2007 merit decision denying her emotional condition
claim and an August 14, 2008 nonmerit decision denying her request for further review of the
merits of her claim. 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 sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied her request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 1, 2007 appellant, then a 49-year-old program analyst, filed a claim
alleging that she sustained an emotional condition in the performance of duty. She stopped work

on August 23, 2007. In an undated statement, appellant noted that on August 22, 2007 she was
informed via e-mail that a job swap with another organization had been denied. She stated that
her nervous breakdown began when she was asked to move from Building 1146 to Building
1211.1 Appellant claimed that she was improperly charged with being absent without leave
(AWOL) and that physical fitness leave privileges were wrongly taken away for six months. She
claimed that Elizabeth Atisme, a supervisor, harassed her by subjecting her to at least a half
dozen telephone calls and e-mails per day in order to check the status of projects. Ms. Atisme
also harassed her in December 2005 when she discussed the fact that she had not attended
division parties. Appellant alleged that Ms. Atisme threatened her with disciplinary action for
creating a hostile work environment after she learned that appellant had told a GS-12 level
coworker to “do the job herself.” Ms. Atisme responded in the negative when she asked if she
would ever be promoted in her current job.2
In a September 19, 2007 statement, Ms. Atisme stated that she did not approve the job
swap requested by appellant because the job transfer gave her limited control over the quality of
the employee who would be swapped with appellant. She advised that appellant engineered the
initial stages of the potential job swap without her knowledge. The move from Building 1146 to
Building 1211 was necessitated by a merger between work units and was only for a temporary
period. Ms. Atisme noted that there was a delay before the union contacted appellant regarding
the matter because she had been away on military duty. She stated that it was necessary to
contact appellant regarding work matters, that the telephone calls and e-mails were collegial in
nature, and that appellant initiated a number of the communications. Ms. Atisme discussed
appellant’s lack of participation at division parties because she had heard that appellant had a
conflict with one of the party hosts and she wished to help promote a harmonious work
environment. She spoke to appellant after it was reported that appellant told a GS-12 level
coworker to “quit being lazy and do your job.” During the conversation, Ms. Atisme discovered
that appellant wished to be promoted to the GS-12 level. She advised appellant that she could
possibly be upgraded to the GS-12 level if additional responsibilities were added to her position.
In an October 15, 2007 letter, the Office requested that appellant submit additional
factual and medical evidence in support of her claim. Appellant submitted additional medical
evidence.
In a November 15, 2007 statement, Ms. Atisme indicated that appellant was disciplined
for abusing the physical fitness leave program. On several occasions, she was seen conducting
personal errands off the employing establishment premises in violation of the leave program
agreement.3

1

Appellant indicated that it took a month before the union contacted her regarding the move and she noted that
she told the union that she approved of the move.
2

Appellant submitted medical evidence concerning her emotional condition.

3

A description of appellant’s job duties and documents regarding the physical fitness leave program were added
to the record.

2

In a December 20, 2007 decision, the Office denied appellant’s emotional condition
claim on the grounds that she did not establish any compensable employment factors. It found
she did not establish harassment or wrongdoing in connection with any administrative matter.
On May 30, 2008 appellant requested reconsideration of her claim. She submitted
October 1 and December 21, 2007 reports of Dr. Richard Charlat, an attending Board-certified
psychiatrist. In an August 14, 2008 decision, the Office denied appellant’s request for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.4 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.5
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.6 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of

4

5 U.S.C. §§ 8101-8193.

5

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
6

Pamela R. Rice, 38 ECAB 838, 841 (1987).

7

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant did not attribute her emotional condition to her regular or specially assigned
duties as a program analyst. Rather she alleged that a job swap with another organization had
been improperly denied and that she should not have been asked to move from Building 1146 to
Building 1211. Appellant claimed that she was improperly charged with being AWOL and that
physical fitness leave privileges were wrongly taken away for six months. She claimed that
Ms. Atisme, a supervisor, threatened her with disciplinary action after she heard that appellant
told a GS-12 level coworker to “do the job herself.” Appellant alleged that Ms. Atisme
responded in the negative when she asked if she would ever be promoted in her current job.
Regarding appellant’s allegations that the employing establishment engaged in improper
disciplinary actions, wrongly denied leave and work transfers, improperly moved her work site
and wrongly precluded her promotion chances, the Board finds that these allegations relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of the Act.10 Although such matters are
generally related to the employment, they are administrative functions of the employer, and not
duties of the employee.11 The Board has found that an administrative or personnel matter will be
considered to be an employment factor where the evidence discloses error or abuse on the part of
the employing establishment. In determining whether the employing establishment erred or
acted abusively, the Board has examined whether the employing establishment acted
reasonably.12
Appellant did not submit sufficient evidence to establish that the employing
establishment committed error or abuse with respect to these matters. For example, she did not
submit the findings of any grievance which found wrongdoing by her supervisor. Ms. Atisme
indicated that appellant was disciplined for abusing the physical fitness leave program because,
on several occasions, she was seen conducting personal errands off the employing establishment
premises. She did not approve appellant’s requested job swap because the job transfer would
provide only limited control over the quality of the employee who would be swapped with
9

Id.

10

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
11

Id.

12

See Richard J. Dube, 42 ECAB 916, 920 (1991).

4

appellant. Ms. Atisme noted that the move from Building 1146 to Building 1211 was
necessitated by a merger between work units and was only for a temporary period. She spoke to
appellant after she received a credible report that appellant told a GS-12 level coworker to “quit
being lazy and do your job.”13 The Board finds that appellant did not show error or abuse by
Ms. Atisme in any of these administrative actions. Thus, appellant has not established a
compensable employment factor under the Act with respect to administrative matters.
Appellant also alleged that she was harassed by Ms. Atisme. She claimed that
Ms. Atisme harassed her by subjecting her to at least a half dozen telephone calls and e-mails per
day in order to check the status of projects. Ms. Atisme also harassed her in December 2005
when she discussed the fact that she had not attended division parties. To the extent that disputes
and incidents alleged as constituting harassment by supervisors is established as occurring and
arising from appellant’s performance of his regular duties, this could constitute an employment
factor.14 However, for harassment to give rise to a compensable disability under the Act, there
must be evidence that harassment did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under the Act.15
The employing establishment denied that appellant was subjected to harassment and
appellant has not submitted sufficient evidence to establish that she was harassed.16 Appellant
alleged that Ms. Atisme made statements and engaged in actions which she believed constituted
harassment, but she provided no corroborating evidence, such as witness statements, to establish
that the statements actually were made or that the actions actually occurred.17 Ms. Atisme
indicated that it was necessary to contact appellant regarding work matters, that the telephone
calls and e-mails were collegial in nature, and that appellant had initiated a number of the
communications. She explained that she discussed appellant’s lack of participation at division
parties because she had heard that appellant had a conflict with one of the party hosts and
Ms. Atisme wished to help promote a harmonious work environment. Appellant has not
established a compensable employment factor under the Act with respect to the claimed
harassment.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.18

13

During the ensuing conversation, she advised appellant that she possibly could be upgraded to the GS-12 level
if additional responsibilities were added to her position.
14

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

16

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
17

See William P. George, 43 ECAB 1159, 1167 (1992).

18

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of Act,19
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.20 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.21 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.22 The Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.23
ANALYSIS -- ISSUE 2
In connection with her May 30, 2008 reconsideration request, appellant submitted
October 1 and December 21, 2007 reports of Dr. Charlat, an attending Board-certified
psychiatrist. However, the submission of this evidence does not require reopening of appellant’s
claim because it is not relevant to the issue of this case. Appellant’s emotional condition claim
was denied on a factual rather than a medical basis, i.e., she did not establish any compensation
employment factors.24
Appellant has not established that the Office improperly denied her request for further
review of the merits of its December 20, 2007 decision under section 8128(a) of the Act, because
the evidence and argument she submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty. The Board further finds that the
19

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
20

20 C.F.R. § 10.606(b)(2).

21

Id. at § 10.607(a).

22

Id. at § 10.608(b).

23

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

24

When a claimant has not established any compensable employment factors, it is not necessary to consider the
medical evidence of record. See supra note 17.

6

Office properly denied appellant’s request for further review of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 14, 2008 and December 20, 2007 decisions are affirmed.
Issued: June 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7