United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, NORTHTOWN POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 12-370
Issued: July 13, 2012

Case Submitted on the Record

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

JURISDICTION
On December 13, 2011 appellant, through her attorney, filed a timely appeal from
decisions of the Office of Workers’ Compensation Programs (OWCP) dated July 8 and
October 28, 2011 that denied her claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment.
On appeal, appellant’s attorney contends that the decisions are contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 8, 2011 appellant, a 44-year-old part-time sales service associate, filed an
occupational disease claim asserting work-related stress. She stopped work on March 18, 2011.
A March 1, 2011 disability slip with an illegible signature indicated that she could not work due
to stress at work.
By letter dated April 5, 2011, OWCP informed appellant of the evidence needed to
support her claim. In an April 13, 2011 statement, appellant asserted that she sustained chest
pain, shaking, sweating, fear of going crazy, hot and cold flashes, tingling in her arms, legs and
feet, choking, anxiety, dizziness and blurred vision due to employment factors. She identified
these as not having a time card for months after returning to work, that she was sent to clerk
training and to various places where no one seemed to know why she was there, she had no
insurance, was picked on by her supervisors, had no work or worked part time.
In a February 24, 2011 report, Dr. Nayyar Afroz, a Board-certified psychiatrist,
diagnosed bipolar disorder and post-traumatic stress disorder. He stated that appellant had
recently returned to work after winning a case and had problems with a supervisor who was
verbally abusive. Appellant submitted a February 28, 2011 report of Andrius E. Hicks, M.A.,
and a physician’s certification for a Family and Medical Leave Act application in which Dr. Bill
Gillard, Board-certified in family medicine, and Dr. Afroz diagnosed bipolar disorder and
advised that appellant could not work from March 4 to June 4, 2011. In a May 20, 2011 report,
Susan Pelton, Ph.D., advised that appellant had been attending a mental health clinic off and on
since September 2008. A June 3, 2011 report with an illegible signature indicated that appellant
was under a doctor’s care for work-related stress and could not work.
On June 14, 2011 the employing establishment controverted the claim. In a June 11,
2011 statement, Theresa Starr, an employing establishment supervisor, advised that appellant
was reinstated in August 2010 after five years following her removal for poor attendance.
Appellant filed a claim regarding the dismissal and was returned to work.2 Ms. Starr indicated
that, even though appellant wanted to work an eight-hour shift, she was hired as a four-hour
worker and her attendance had been very poor since returning to duty. She stated that appellant
did not inform her of stress until filing the claim.
By decision dated July 8, 2011, OWCP denied the claim finding that appellant did not
establish a compensable factor of employment.
Appellant requested reconsideration and submitted statements dated July 15 and
October 10, 2011 in which she asserted that she was unfairly treated and harassed on the
workroom floor by employing establishment supervisors, was forced to work in a hostile and
unsafe work environment, had to go to various places such as the main post office to get an
employee identification badge and to a refresher course, was only given part-time hours, and that
the employing establishment did not honor her arbitration decision. She alleged that she was

2

Appellant apparently filed a claim with the Merit Systems Protection Board regarding her dismissal. A copy of
the decision is not in the record.

2

improperly given notices of absence and called for investigative interviews by the employing
establishment, because she was unable to respond due to her psychiatric illness.
In reports dated July 14 and September 8, 2011, Dr. Gillard diagnosed bipolar illness,
anxiety, psychosis and post-traumatic stress disorder. He stated that appellant could not tolerate
work stress, such as supervisor’s demands, time lines and complex tasks because she became
easily frustrated and did not relate well to others in the workplace. Dr. Gillard advised that she
was disabled from work.
The record includes a number of earnings and leave statements, five-day absence notices
dated March 10 and July 18, 2011 indicating that appellant had not furnished the employing
establishment with proper documentation of her absences and March 30 and August 23, 2011
notices of investigative interviews.
On September 2, 2011 Ms. Starr stated that she disagreed with appellant’s allegations.
She noted that since January 2011 appellant’s attendance had been bad, and the organization had
a need to question her about this.
In a merit decision dated October 28, 2011, OWCP denied modification of the prior
decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.3 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.4 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within

3

Leslie C. Moore, 52 ECAB 132 (2000).

4

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

5

Id.

6

28 ECAB 125 (1976).

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coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.12 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term
“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.15

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Lillian Cutler, supra note 6.

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

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

13

Kim Nguyen, 53 ECAB 127 (2001).

14

James E. Norris, 52 ECAB 93 (2000).

15

Beverly R. Jones, 55 ECAB 411 (2004).

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ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment.
Appellant has not attributed her emotional condition to the performance of her regular
work duties or to any special work requirement arising from her employment duties under
Cutler.16 Rather, her claim pertains to administrative actions that occurred after her return to
work in August 2010 following a five-year absence. Appellant alleged that she was harassed and
treated in an abusive manner by management.
Generally, actions of managers or supervisors in administrative or personnel matter,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of FECA.17 Absent evidence establishing error or abuse, a claimant’s disagreement or dislike of
such a managerial action is not a compensable factor of employment.18 The Board finds that
appellant’s allegations that she was improperly required to go to the main post office to secure an
identification badge and to attend training at another location were reasonable administrative
functions. Appellant did not submit sufficient evidence to establish error or abuse in these
matters. Employing establishment management also explained that when she returned to work in
August 2010, it was on a part-time basis. Appellant submitted no evidence regarding her general
allegation that she had no insurance or evidence that insurance was denied after her return to
work. In fact, the record contains earnings and leave statements documenting deductions for
health insurance. As to appellant’s allegation that the employer did not honor an arbitration
decision, no copy of the decision was submitted to the record. She submitted insufficient
evidence to substantiate that she was not given a time card or that its absence was error.
Appellant also asserted that she was verbally abused by supervisors and managers. While
verbal altercations, when sufficiently detailed by the claimant and supported by the evidence,
may constitute compensable employment factors.19 In this case, appellant submitted no evidence
to support her claim of verbal abuse, and thus did not establish a factual basis for her
allegation.20
Generally, complaints about the manner in which a supervisor performs his or her duties
or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside the
scope of coverage provided by FECA. This principle recognizes that a supervisor or manager in
general must be allowed to perform his or her duties and employees will, at times, dislike the
actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be
16

See James E. Norris, supra note 14.

17

J.C., 58 ECAB 594 (2007).

18

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

19

See J.F., 59 ECAB 331 (2008).

20

See T.G., 58 ECAB 189 (2006).

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compensable, absent evidence of error or abuse.21 Ms. Starr explained that discussions and
correspondence with appellant were regarding such supervisory duties as monitoring attendance.
The record contains no evidence that any employing establishment supervisor or manager
committed error or abuse in discharging management duties.22
Regarding appellant’s general contention that she was harassed by employing
establishment management, mere perceptions of harassment or discrimination are not
compensable under FECA.23 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. A claimant must establish
a factual basis for his or her allegations with probative and reliable evidence.24 As noted,
appellant did not submit evidence to support specific actions by management to show a persistent
disturbance, torment or persecution, i.e., mistreatment by management.25 She therefore did not
establish a factual basis for her claim of harassment by probative and reliable evidence.26
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment.27
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 did not establish that she sustained an emotional condition
in the performance of duty.

21

Id.

22

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

23

James E. Norris, supra note 14.

24

Id.

25

Beverly R. Jones, supra note 15.

26

See Robert Breeden, 57 ECAB 622 (2006).

27

Leslie Moore, supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 28 and July 8, 2011 are affirmed.
Issued: July 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 15-0858
Issued: March 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 3, 2015 appellant filed a timely appeal of a September 8, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than six percent impairment of his left upper
extremity and three percent impairment of his right upper extremity, for which he received
schedule awards.
On appeal appellant argued that he was entitled to additional impairment as his hands
were very large.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 28, 2013 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome due to his federal
employment duties. He stated that he first became aware of his condition on February 4, 2013
and first realized that it was related to his employment on February 8, 2013.
In an accompanying narrative statement, appellant related that he began a mounted route
in June 2011 with a change in the mechanics of his position. He stated that he had more delivery
time and increased movement of his arms, wrists, and hands. Appellant reported approximately
800 deliveries on his route. He described his duties of sorting flats of up to 920 pieces of
magazine-sized mail, residential letters of 50 pieces of mail, and parcels of 30 pieces of mail.
Appellant loaded his vehicle with this mail as well as an additional 2,700 letters. To deliver the
mail, he had to finger each letter with his right hand to check for forwarded mail, holds,
miss-sorted, and miss-spent mail. Appellant then placed the mail in the proper mailbox from his
vehicle using his right hand. He noted that he delivered to locked mailboxes which required him
to unlock and lock 23 boxes a day. Appellant stated that his route required work of 8 to 10 hours
a day and that he also worked an additional 1 to 2 hours to perform delivery functions on a
vacation route. He worked six days a week and averaged 56 hours a week. Appellant stated,
“These thousands of daily fine manipulations by my hands, wrists, and arms has resulted in
slowly over a period of time, numbness, tingling, swelling, and pain which has resulted in carpal
tunnel in both my left and right hands and/or wrists.”
In a report dated February 8, 2013, Dr. Conrad G. Hamilton, a surgeon, noted appellant’s
history of injury and the gradual onset of his paresthesias, numbness, and tingling. He reviewed
appellant’s electromyogram study and found that it demonstrated bilateral carpal tunnel
syndrome worse on the right. Dr. Hamilton noted that appellant had thick muscular hands and
wrists that limited his range of motion due to anatomy rather than pathology. He found no thenar
or hyperthenar atrophy and noted that Tinel’s sign was negative. Dr. Hamilton reported that
appellant’s right side two-point discrimination was in the six to seven millimeter range on the
ulnar distribution and the seven to eight millimeter range on the median distribution. Appellant
demonstrated eight millimeter or greater two-point discrimination on the radial and ulnar
borders. On the left side he demonstrated six millimeter two-point discrimination in his small
finger, six to seven millimeter discrimination on the remaining fingers with seven to eight
millimeter two-point discrimination on his thumb.
By decision dated May 2, 2013, OWCP accepted appellant’s claim for bilateral carpal
tunnel syndrome.
Dr. Hamilton performed an open median nerve decompression at the right carpal tunnel
with thenar motor branch exploration on May 28, 2013. He performed an open median nerve
decompression on the left carpal tunnel on July 9, 2013. Appellant returned to full duty on
August 20, 2013.
In a report dated October 18, 2013, Dr. Hamilton noted appellant’s increasingly
symptomatic bilateral long finger triggering. On October 28, 2013 he performed trigger digit
injections. On November 21, 2013 Dr. Hamilton noted that appellant’s symptoms had worsened
and that the injections had not helped.
2

Appellant requested a schedule award on February 10, 2014. In a letter dated
February 19, 2014, OWCP informed him that he was entitled to a schedule award when he
reached maximum medical improvement (MMI) of his accepted condition of bilateral carpal
tunnel syndrome.
Dr. Hamilton completed a report following his February 3, 2014 examination, finding
that appellant had experienced complete resolution of numbness and tingling bilaterally in his
wrists, hands, and digits. Appellant continued to describe global achiness and pain in his hands
with long days at work as well as intermittent symptoms of the left long finger triggering.
Dr. Hamilton examined appellant’s wrists and found negative Tinel’s sign, with no thenar
atrophy, normal strength in the abductor pollicis brevis, and abductor digiti quinti minimi. He
reported appellant’s two-point discrimination as five millimeters on the radial and ulnar borders
of all digits. Dr. Hamilton noted that no triggering was actively identified on the right long
finger, but mild nodularity could be appreciated with deep palpation and tendon excursion.
Appellant’s left long finger demonstrated intermittent trace triggering with deep palpation and
associated nodularity was appreciated in the active range. Dr. Hamilton reported that appellant’s
grip strength on the right side was 46 kilograms and on the left side 41 kilograms in position
number two. He noted that appellant did not wish to undergo operative intervention for his left
long finger trigger digit and was at MMI.
By decision dated April 24, 2014, OWCP denied appellant’s claim for a schedule award
finding that Dr. Hamilton did not provide an impairment rating in accordance with the A.M.A.,
Guides.
In a report dated April 29, 2014, Dr. Paul S. Darby, a physician Board-certified in
occupational medicine, examined appellant to rate his permanent impairment. He noted that
appellant had not regained his preinjury strength, that he complained of pain in both hands that
woke him from sleep, and that his grip strength was lessened. Dr. Darby found a positive Tinel’s
sign at the left wrist, with no dermatomal sensory deficits in either hand. He observed, “His
hands are quite massive. There is no obvious muscle atrophy of the thenar regions. He has 5/5
strength of bilateral thumb opposition…. His gross grip strength is diminished bilaterally
compared to what it should be based on his massive hand size.” Appellant’s QuickDASH score
was 62. Dr. Darby noted that appellant required repeat electrodiagnostic studies prior to an
impairment rating.
Appellant underwent electrodiagnostic studies on May 20, 2014. These revealed that his
distal motor latency on the right median nerve was 5.8 and on the left it was 5.9. Appellant’s
right distal motor latency had improved while his left had worsened. Dr. Kevin J. Jamison, a
Board-certified neurologist, diagnosed moderate bilateral carpal tunnel syndrome and
recommended repeat carpal tunnel releases.
In a report dated July 16, 2014, Dr. Darby applied the A.M.A., Guides to his
electrodiagnostic studies and physical findings. He reported that appellant’s electrodiagnostic
studies showed ongoing delayed distal motor latencies of the bilateral median nerves at the wrists
and bilateral mixed median sensory responses, which were borderline to slightly delayed
bilaterally. Dr. Darby referenced Table 15-232 of the A.M.A., Guides and found that appellant’s
2

A.M.A., Guides, 449, Table 15-23.

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test findings were grade modifier 1, that his constant bilateral symptoms were grade modifier 3
for history, and based on bilateral weakness appellant had grade modifier 3 for physical findings.
He noted, “The sum of the modifiers is 7 and the averages is 2.33, indicating [g]rade 2 is the
final rating category. The QuickDASH score of 62 corresponds to [g]rade [m]odifier 3 on the
functional scale. Therefore, the default upper extremity impairment of five percent is raised to
six percent because the functional grade modifier is one level higher than the final rating
category.” Dr. Darby concluded that appellant had six percent impairment of his upper
extremities bilaterally.
An OWCP medical adviser reviewed the reports of Drs. Hamilton and Darby on
August 14, 2014. He agreed with Dr. Darby’s method of impairment rating, but stated that he
disagreed with the grade modifier for physical examination which, he noted, affected the final
rating for the right side, but not the left. The medical adviser found that, in accordance with the
A.M.A., Guides, appellant’s grade modifier for test findings was 1, that his grade modifier for
history was 3, bilaterally. He then found that, as appellant had a normal physical examination on
the right, the grade modifier for physical examination was 0 on the right. On the left the medical
adviser found a grade modifier 1 for physical examination based on appellant’s positive Tinel’s
sign. He found a functional scale grade modifier 3 bilaterally. The medical adviser concluded
that on the right appellant’s average grade modifier was 1 for an impairment rating of two
percent, while on the left appellant’s average grade modifier was 2 for an impairment rating of
five percent. He further explained, “Dr. Darby used a grade modifier for physical examination of
3 on both sides based on his perception of grip strength weakness, however, he reported 5/5
strength of individual muscles and no atrophy and he did not measure grip strength.
Dr. Hamilton had previously documented that grip strength was 46 kilograms (101 pounds) on
the right and 41 kilograms (90 pounds) left, which would be considered to be normal.” The
medical adviser noted that, as the functional scale was greater on both sides than the average
grade modifier, the default impairment rating was increased by one percent on both sides.
Therefore, he concluded that appellant had three percent impairment of the right upper extremity
for residuals of median neuropathy carpal tunnel syndrome and six percent impairment of the left
upper extremity. The medical adviser used April 29, 2014 as the date of MMI based on
Dr. Darby’s examination.
By decision dated September 8, 2014, OWCP granted appellant schedule awards for six
percent impairment of the left upper extremity and three percent impairment of the right upper
extremity.
The award ran 28.08 weeks for the period April 29, 2014 MMI to
November 11, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
3

5 U.S.C. §§ 8101-8193, 8107.

4

20 C.F.R. § 10.404.

4

consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.5
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.6 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.7
ANALYSIS
Appellant submitted medical evidence from Dr. Hamilton and Dr. Darby regarding the
extent of his permanent impairment for his accepted bilateral carpal tunnel condition. The
medical adviser reviewed these reports and generally agreed with Dr. Darby’s findings and
ratings. Dr. Darby applied the methodology of Table 15-23 of the A.M.A., Guides8 and
reviewed appellant’s electrodiagnostic studies to reach grade modifier 1 based on a sensory or
motor conduction delay. The medical adviser agreed with this rating. Dr. Darby then opined
that appellant had constant bilateral symptoms which resulted in grade modifier 3 for history.
The medical adviser agreed. Both Dr. Darby and the medical adviser agreed that appellant’s
functional scale or QuickDASH score was grade modifier 3 and resulted in an increase in one
percent of the determined impairment ratings.
The disagreement between Dr. Darby and the medical adviser was based on a difference
in determination of appellant’s physical findings. Dr. Darby found that appellant had a grade
modifier 3 based on atrophy of weakness. In his initial report he noted that appellant’s hands
were massive and that his gross grip strength was diminished bilaterally compared to what it
should be based on his massive hand size. However, Dr. Darby did not provide any additional
grip strength measurements and noted that appellant had no obvious muscle atrophy of the thenar
regions. In further defining physical findings, the A.M.A., Guides provide: “To qualify for class
3 by physical findings, there should be constant numbness (history), and no protective
sensation…. There must also be grade 3 or less motor function, or a history of surgical tendon
transfer to restore function. This is almost never seen in peripheral nerve entrapment.”9
5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 449, Table 15-23.

7

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. Id. at 448-49.
8

Id. at 449, Table 15-23.

9

Id. at 446.

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The medical adviser disagreed with Dr. Darby’s selection of grade modifier 3 for
physical findings and explained, “Dr. Darby used a grade modifier for physical examination of 3
on both sides based on his perception of grip strength weakness, however, he reported 5/5
strength of individual muscles and no atrophy and he did not measure grip strength.
Dr. Hamilton had previously documented that grip strength was 46 kilograms (101 pounds) on
the right and 41 kilograms (90 pounds) left, which would be considered to be normal.”
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and OWCP may rely on the opinion of
its medical adviser to apply the A.M.A., Guides to the findings of the attending physician.10 The
Board finds that Dr. Darby did not provide sufficient findings or reasoning to support his
selection of grade modifier 3 for physical findings under Table 15-23 of the A.M.A., Guides.
The medical adviser offered his agreement with the majority of Dr. Darby’s findings and
provided a detailed explanation of why he did not believe that the physical findings grade
modifier was appropriate. He concluded that appellant had grade modifier 2 for physical
findings on the left based on a positive Tinel’s sign and grade modifier 1 for physical findings on
the right due to normal physical findings.
After averaging the grade modifiers for test findings, history, and physical findings, the
medical adviser concluded that on the right appellant’s average grade modifier was 1 for an
impairment rating of two percent, while on the left appellant’s average grade modifier was 2 for
an impairment rating of five percent. He concluded that, as the functional scale was greater on
both sides than the average grade modifier, the default impairment rating was increased by one
percent on both sides, to three on the right and to six on the left.
The Board finds that appellant has no more than three percent impairment of his right
upper extremity and no more than six percent impairment of his left upper extremity for which
he received schedule awards.
On appeal, appellant alleges that as his grip strength was diminished and because of his
large hand-size, he should have received six percent impairment of each upper extremity. For
the reasons set forth above, the Board finds that appellant’s medical evidence is insufficient to
establish this greater impairment rating.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than three percent impairment of his right
upper extremity and six percent impairment of his left upper extremity for which he received
schedule awards.

10

Linda Beale, 57 ECAB 429 (2006).

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ORDER
IT IS HEREBY ORDERED THAT September 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.11
Issued: March 24, 2016
Washington, DC

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

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

11

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
DEPARTMENT OF THE NAVY, HILL AIR
FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 09-2056
Issued: May 11, 2010

Case Submitted on the Record

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

JURISDICTION
On August 10, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 27, 2009 which denied his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award in this case.
ISSUE
The issue is whether the Office properly denied appellant’s schedule award claim for
hearing loss.
FACTUAL HISTORY
On September 2, 2008 appellant, then a 59-year-old plastic fabricator supervisor, filed a
claim alleging that he sustained permanent hearing loss while in the performance of duty. He

became aware of his hearing loss on September 2, 1988 and had continuing exposure to noise at
his job until his retirement on September 30, 2007.1
On February 19, 2009 the Office requested additional medical evidence from appellant
noting that the evidence submitted was insufficient to establish his claim. It also requested
information from the employing establishment addressing appellant’s claim.
In a March 2009 statement, appellant advised that he related his hearing loss to his
employment on September 1, 1988 after an explosion at work which resulted in ringing in both
ears. He filed a claim for hearing loss on October 2, 1993 but did not receive benefits. In an
April 13, 1993 statement, appellant noted that he was exposed to noise from high speed drills,
sanders, rivet guns and air driven tools for nine hours a day.
Appellant submitted employing establishment audiograms from June 15, 1965 to
October 5, 1992 which revealed a mild bilateral high frequency loss when he was hired in 1965
and which deteriorated with permanent threshold shifts in 1981 and 1992. He submitted
employing establishment medical records from September 6, 1988 to November 18, 1992 which
noted treatment for right ear trauma after a minor explosion at work which did not result in
permanent injury. In a September 7, 1989 report, Dr. Robert L. Mellor, a Board-certified
otolaryngologist, noted that a September 15, 1988 audiogram revealed moderately severe
sensorineural hearing loss and tinnitus. A November 24, 1992 report from an audiologist
advised that appellant’s initial audiogram in 1965 revealed mild high frequency loss in both ears
with permanent threshold shifts in 1981 and 1992. A December 15, 2008 audiogram performed
by Garr J. Crookston, an audiologist, revealed normal hearing thresholds in the low and mid
frequencies with a sharp drop in thresholds due to a severe hearing loss in the high frequencies.
Dr. Crookston recommended hearing aids.
A June 23, 2009 statement of accepted facts noted that appellant worked as a sheet metal
mechanic from August 14, 1988 to April 19, 2003 and as a plastic fabricator supervisor from
April 20, 2003 to September 30, 2007. Appellant was exposed to noise from high speed drills,
sanders, drill presses, rivet guns, metal cutting band saws and air driven tools in both positions.
He was exposed to occupational noise levels above 85 decibels from August 1988 to
September 2007.
By letter dated June 24, 2009, the Office referred appellant with a statement of accepted
facts to Dr. Ronald F. Gordon, a Board-certified otolaryngologist, for an otologic examination
and audiological evaluation. In a July 14, 2009 report, Dr. Gordon set forth findings on
examination and opined that when appellant’s employment began, he had a mild bilateral high
frequency loss. Appellant’s current audiometric findings showed sensorineural loss in excess of
what would be expected from presbycusis. Dr. Gordon diagnosed noise-induced sensorineural
hearing loss which was due to the noise exposure encountered in his job. He performed otologic
1

Appellant submitted document from a previous hearing loss claim. On August 11, 1998 he claimed a hearing
loss which was developed in claim number xxxxxx361. The Office accepted the claim for acute acoustic trauma of
the right ear and traumatic tinnitus. On August 8, 1989 it denied appellant’s claim for compensation finding that his
hearing loss was not related to the September 1988 injury. Claim number xxxxxx361 is not before the Board on the
present appeal.

2

evaluation of appellant on July 14, 2009 and audiometric testing was conducted that day.
Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the
following: right ear 10, 15, 15 and 45 decibels; left ear 10, 15, 10 and 40 decibels. Dr. Gordon
noted tympanometry revealed normal tracings bilaterally and the audiogram revealed noiseinduced sensorineural hearing loss and recommended bilateral hearing aids.
On July 20, 2009 an Office medical adviser reviewed Dr. Gordon’s report and the
audiometric test of July 14, 2009. In accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A., Guides), appellant
had zero percent monaural hearing loss in each ear. The medical adviser determined that
appellant’s hearing loss was not severe enough to be ratable for a schedule award after applying
the Office’s current standards for evaluating hearing loss to the results of the July 14, 2009
audiogram.
On July 24, 2009 the Office accepted appellant’s claim for bilateral hearing loss due to
noise exposure and authorized hearing aids.
In a July 27, 2009 decision, the Office denied appellant’s claim for a schedule award,
finding that the extent of hearing loss was not severe enough to be ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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 regulations as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no

2

A.M.A., Guides (6th ed. 2008).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides 250 (6th ed. 2008).
May 1, 2009.
7

The sixth edition of the A.M.A., Guides became applicable as of

Id.

3

impairment in the ability to hear everyday speech under everyday conditions.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in the
Office’s adoption of this standard for evaluating hearing loss.11
ANALYSIS
The Office referred appellant to Dr. Gordon to evaluate his hearing loss. An Office
medical adviser agreed with Dr. Gordon’s findings and conclusion that appellant’s hearing loss
was aggravated by his employment. The medical adviser applied the Office’s standardized
procedures to the July 14, 2009 audiogram performed for Dr. Gordon to determine if appellant’s
hearing loss was ratable for schedule award purposes. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses of 10, 15, 15,
and 45, respectively. These decibels were totaled at 85 and were divided by 4 to obtain an
average hearing loss at those cycles of 21.25 decibels. The average of 21.25 decibels was then
reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal zero
percent hearing loss for the right ear. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibels losses of 10, 15, 10 and 40
respectively. These decibels were totaled at 75 and were divided by 4 to obtain the average
hearing loss at those cycles of 18.75 decibels. The average of 18.75 decibels was then reduced
by 25 decibels (the first 25 decibels were discounted as discussed above) to zero which was
multiplied by the established factor of 1.5 to compute a zero percent hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to
Dr. Gordon’s report and the July 14, 2009 audiogram. The result is a nonratable binaural hearing
loss. Although the record contains other audiograms submitted by appellant, these are of no
probative value as they were not certified by any physician as accurate.12
On appeal appellant asserts that he should have been granted a schedule award because
the Office accepted his condition for bilateral hearing loss and authorized hearing aids. As noted
appellant has an accepted bilateral hearing loss; but the extent of such loss is not ratable under
the standards used by the Office to determine permanent impairment for schedule award
purposes.
8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115, 118 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; the Office need not review uncertified audiograms).

4

CONCLUSION
The Board finds the Office properly denied appellant’s claim for a schedule award for
hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
ASSISTANT SECRETARY FOR
ADMINISTRATION & MANAGEMENT,
San Francisco, CA, Employer
__________________________________________

)
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)
)
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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1612
Issued: April 8, 2021

Case Submitted on the Record

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

JURISDICTION
On July 29, 2019 appellant, through counsel, filed a timely appeal from an April 1, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition on October 30, 2014 in the performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On November 3, 2014 appellant, then a 48-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that on October 30, 2014 he experienced stress and
anxiety due to a confrontation with his supervisor, S.C., which occurred in front of clients and
coworkers. He alleged that S.C. approached his cubicle while he was meeting with clients in a
hostile and aggressive manner with a loud tone of voice. Appellant claimed that S.C. was loud,
rude, and unprofessional, and she embarrassed and belittled him in front of his customers. On the
reverse side of the claim form, S.C. indicated that his injury was caused by willful misconduct as
appellant had not followed directives which were repeated to him five times. She alleged that
appellant refused to complete the work assignment each time in front of the client.
In a note dated November 6, 2014, Dr. Susan M. Fair, a licensed clinical psychologist,
diagnosed severe anxiety and panic. She found that appellant was totally disabled through
November 17, 2014. On November 13, 2014 Dr. Fair diagnosed panic attacks and intense acute
anxiety that occurred at work on November 3, 2014 during an interaction with his manager. She
completed a note on November 17, 2014 and indicated that the date of appellant’s initial panic
attack was October 30, 3014 rather than November 3, 2014.
Appellant provided witness statements describing the events of October 30, 2014. These
included e-mails dated October 30, 2014, from coworkers R.H. and A.T. He also provided e-mails
from Bureau of Labor Statistics (BLS) customers N.G. dated November 5, 2014 and S.P. dated
October 30, 2014.
In development letters dated December 18, 2014, OWCP requested additional information
from appellant and the employing establishment regarding the events of October 30, 2014 as well
as additional medical evidence from him. It allowed him 30 days to respond.
Appellant submitted a January 22, 2015 response to OWCP’s development letter and
indicated that he was providing services to BLS while their agency was assigned to him in the
absence of the regularly assigned specialist who was on extended leave at the time. He noted that
the meeting on October 30, 2014 was to address why N.G. and S.P.’s recruitment requests were
taking an enormous amount of time to be reviewed and posted. Appellant alleged that the
discussion was intended to address the priorities that he received from his supervisor. S.C.
confronted him in a loud and antagonizing manner regarding his work priorities. She asserted that
appellant had eight hours to complete his tasks and that he should be able to complete all of the
3

Docket No. 16-1779 (issued November 22, 2017).

2

tasks within eight hours. Appellant filed an Equal Employment Opportunity (EEO) complaint.
He noted that he was previously diagnosed with panic attacks in October 1999 and had utilized
prescribed medication for anxiety.
S.C. submitted a statement on February 2, 2015. She alleged that she had directed
appellant to have N.G.’s new hires on board by November 10, 2014. S.C. informed appellant that
he was at the employing establishment eight hours a day, and he needed to multitask his work
responsibilities. Appellant protested that he had other priorities that S.C. had assigned. S.C. noted
that appellant had received written counseling on October 30, 2014 regarding his performance and
conduct problems. She further noted that appellant’s work performance deficiencies had been
uncovered in July 2014 during an Office of Personnel Management (OPM) evaluation.
In an October 30, 2014 written counseling notice addressed to appellant, S.C. noted a
number of infractions throughout October 2014 in which he failed to follow directions, violated
prohibited personnel practices and engaged in unprofessional and disrespectful conduct, including
that he had not completed training within the assigned deadline, that he failed to timely complete
qualifications for a vacancy announcement, that he had not provided requested updates of this
work assignments, that he did not obtain the SF-75 for a new employee when requested, that he
did not respond to an applicant regarding an ineligibility determination, and that he responded to
a request to upload changes to employees hours by November 14, 2014 that S.C. “…was out of
touch with the Specialist workload.”
In a witness statement of even date, L.D. indicated that on that morning she was working
in the office and she heard raised voices in the HR office, one of which she recognized as
appellant’s. She telephoned S.C. and advised her that she may need to investigate. S.C. came to
her office and informed her of the discussion regarding appellant’s ability to complete N.G. and
S.P.’s task, that appellant alleged his priorities kept changing such that he could not complete the
new hires, and that she had instructed appellant to multitask. L.D. noted that on that same day,
S.C. provided appellant with written counseling regarding his failure to comply with deadlines and
directives from October 6 through 29, 2014.
By decision dated July 13, 2015, OWCP denied appellant’s traumatic injury claim finding
that he had not substantiated a compensable factor of employment. It found that the interaction
with S.C. on October 30, 2014 was within the scope of an administrative action and that appellant
had not established error or abuse on the part of S.C.
On July 19, 2015 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. In a letter dated September 2, 2015, he requested subpoenas for
S.P., N.G., R.H., and A.T. By decision dated December 28, 2015, OWCP’s hearing representative
denied appellant’s requests for subpoenas.
Appellant testified at the oral hearing on January 25, 2016. He noted that the October 30,
2014 meeting was impromptu and held at N.G.’s request. Appellant noted that the assigned
specialist for BLS was using approved leave and the agency was temporarily assigned to him by
S.C. He alleged that he had not received counseling prior to the October 30, 2014 incident and
had not received discipline based on the counseling letter. Appellant noted that S.C. left the agency
in 2015. He noted that if S.C. had apologized regarding the interaction, he might not have been as

3

upset. However, at the time of the incident on October 30, 2014 appellant was very nervous, and
his hands were sweating and numb. He was also experiencing stomach symptoms. Appellant
asserted that his emotional reaction was due to how S.C. was speaking to him.
At the oral hearing, appellant submitted additional witness statements regarding the events
of October 30, 2014.
In A.T.’s January 21, 2016 statement, she described overhearing appellant explain to his
customers, N.G. and S.P., the recruitment process, pending items that required his attention and
priorities, and why his work deliverables were being delayed. She described this meeting as
mutual and normal. A.T. indicated that while appellant was speaking with his customers, S.C.
interjected with an escalated voice and informed him that he was responsible for completing
required recruitment actions and directing him to multitask, noting that he worked eight hours a
day. She noted that appellant responded and attempted to explain himself, his duties and priorities
in a normal voice but S.C. kept interrupting and speaking over him. A.T. asserted that S.C. belittled
and insulted appellant and created a hostile and unprofessional work environment.
N.G., in a statement dated January 22, 2016, disagreed with S.C.’s account of the events
that transpired on October 30, 2014. She denied having a confrontation with appellant in which
they were yelling at each other. N.G. asserted that she and appellant were having a cordial business
conversation where he had explained that his priorities were changed by S.C., that he was doing
the best he could to ensure that he worked on her items when he had a chance, but that he had
requested that she prioritize all her requests. She further asserted that S.C. was solely responsible
for creating a hostile work environment and that she was abusive and unprofessional towards
appellant, belittling and demoralizing him in front of others, including telling him he should know
how to prioritize in the eight hours he was in the office. N.G. noted that the purpose of the
October 30, 2014 meeting was to provide appellant with the agency’s priorities as he had just taken
over for an assigned specialist who was on leave. She concluded by complimenting appellant’s
service to her agency and noting he had completed the onboarding tasks as he indicated he would.
In her January 23, 2016 witness statement, R.H. noted that she overheard appellant advise
his customers that he was unable to complete certain recruitment actions because of the
prioritization of his work by S.C. A few minutes into this conversation, R.H. observed S.C. walk
up, interrupt the conversation, and inform appellant that he was required to complete all
recruitment actions through multi-tasking and in accordance to prescribed deadlines. R.H. noted
that S.C. was loud and continued to repeat herself as appellant responded that he was unable to
complete the actions as required. She described S.C.’s conduct as loud, unprofessional and
demeaning. R.H. further noted that appellant had spoken with his customers, prior to S.C.’s
interjection, in a civilized manner and at a normal office volume. He later apologized to his
customers for S.C.’s behavior after she left the area.
Appellant also provided a copy of OPM’s evaluation during the week of July 14
through 23, 2014.
This document identified several applicants who lost employment
consideration, inaccurate qualification determinations, and a lack of quality control measures.
Appellant was not mentioned by name or otherwise identified as responsible.

4

By decision dated April 11, 2015, OWCP’s hearing representative found that appellant had
not established that S.C.’s response to him on October 30, 2014 rose to the level of error or abuse.
The hearing representative further concluded that subpoenas were not necessary and affirmed the
July 13, 2015 OWCP denial.
Appellant requested reconsideration on May 28, 2016. He completed an additional
statement and asserted that neither he nor N.G. yelled during the October 30, 2014 meeting.
Appellant alleged that S.C. had shifted his priorities and that he had received the October 30, 2014
letter of counseling on October 31, 2014. He also disputed that his work resulted in the issues
raised by OPM.
Appellant provided a May 6, 2016 statement from S.P. He reported that appellant did not
yell at N.G., but that his voice was “a bit elevated” due to frustration at his workload and the
prioritization of that workload. S.P. noted that appellant explained that recent poor service was
due to his manager’s directions to prioritize other work.
Appellant resubmitted his own statement and the January 21 through 23, 2016 statements
from A.T., R.H., and N.G., as well as reports from Dr. Fair.
By decision dated August 22, 2016, OWCP denied modification of its prior decisions
finding that appellant had not substantiated a compensable factor of employment. It further found
that he had not established error or abuse in an administrative function.
Appellant appealed this decision to the Board. By its November 22, 2017 decision,4 the
Board found that he had not established error or abuse by S.C. in carrying out her administrative
function as a supervisor, and therefore he had not established a compensable factor of employment
required to establish his emotional condition claim.
On November 20, 2018 appellant, through counsel, requested reconsideration. Counsel
contended that appellant had implicated his regular or specially assigned duties as causing or
contributing to his diagnosed emotional condition. He alleged that on October 14, 2014 appellant
was assigned additional work, BLS, which was the agency with the heaviest workload due to its
high turnover rate and high recruitment demands. Counsel asserted that the extra workload caused
appellant to be unable to complete his assignments on time, which contributed to appellant’s panic
attack and severe anxiety when S.C. confronted him on October 30, 2014. He asserted that
appellant’s anxiety over his ability to perform his work duties was a compensable factor of
employment. Counsel noted that the entire source of conflict between appellant and S.C. was
appellant’s inability, or perceived inability, to complete his work as assigned. He alleged that
appellant’s psychological condition was contributed to by overwork and appellant’s anxiety over
his ability to complete his work assignments on time.
Appellant provided a telephone list which provided his usual list of four agencies. He also
provided a partially legible spreadsheet indicating positions that he had filled or was required to
fill.

4

Id.

5

In a November 8, 2018 statement, appellant noted that on October 14, 2014 he was
assigned an additional agency, BLS, to his normal workload of four agencies, as a coworker who
was previously assigned to that agency was using leave. He alleged that BLS had the heaviest
workload due to a high turnover rate and high recruitment demands. Appellant asserted that he
had to complete the tasks that the previously assigned coworker had not completed, which included
several vacancy postings, reviewing applicants’ résumés, working with agencies on certificates of
eligibility, and certifying processing for 25 personnel actions to ensure work hours were changed.
His normal four agency work assignments had included six new vacancy postings, reviewing six
applicants’ résumés, working with the agencies on three certificates of eligibility, processing six
new hires, and three desk audits.
Appellant further described each of his job duties. He noted that developing vacancy
announcements required a job analysis identifying the required tasks and competencies, as well as
gathering the position description, OPM qualification standards, OPM classification standards, and
any prior job announcement and analysis. Appellant was then required to work with the agency
to develop a person as a subject matter expert (SME), to complete the position information,
accurately identify the tasks to perform the offered position and the competencies. After
completing this research, he drafted the vacancy announcement including the pay plan, series,
grade and salary of the position. Appellant was required to include recruitment incentives, if
available, and whether the position was open to federal employees or U.S. citizens. He was also
to include the duties of the position and the requirements of the position, regarding security
clearance, physical examination or drug testing, whether the position was full or part-time,
temporary or permanent, and identify any other key requirements for the position. Appellant also
listed the documents required and the steps necessary for the acceptance of the application.
Following the application process, appellant was required to review the selections made by
the agencies, certify and document the candidates, and ensure that the agency selected from the
eligible candidates in the highest quality category and that the preference eligible candidates are
selected. The next step required appellant to audit the selected candidates to ensure that they
complied with all legal and regulatory procedures. He noted that once the vacancy announcements
had closed, he was required to review the candidates’ qualification, the number of candidates that
applied, and review between 30 to 100 applications for veteran status, disability status, and verify
the applicants’ scores. Appellant then must determine the best qualified candidate based on the
responses to the vacancy announcement by reviewing resumes, documenting adjustments, and
reviewing specialized experience for the offered position. He forwarded his evaluations to the
SME to reach agreement and then forwarded the appropriate candidates for consideration. The
agency then notified appellant of its preferred candidate and appellant proceeded with the hiring
process.
With regard to new hires, appellant noted that he was required to enter information into the
agency system, review to ensure that the grade, step, and salary were correct, identify the Fair
Labor Standards Act (FLSA) code, service computation date for within-grade-increases,
retirement, reduction-in-force, and leave purposes. He noted that he was to ensure that the
organization structure was correct and verify the type of appointment, work schedule, tour of duty,
alternate work schedule eligibility, bargaining unit status, educational code, retirement coverage,
and probationary period commencement date. Appellant was required to process new hires’

6

federal taxes, state taxes, allowances, financial allotments, flexible accounts, health and life
insurance, thrift savings plan, and address information.
Appellant noted that he was responsible for desk audits when requested by one of his five
agencies. This included reviewing the position descriptions, making any revisions needed,
classifying the position by identifying major and minor duties, regular and recurring duties, to
select an occupational series, and the title of the position. Appellant must determine the grade
level of the position and the classification of the position description.
Appellant alleged that his supervisor placed many deadlines on his regular workload and
on the additional BLS duties not completed by his coworker. He alleged that BLS requested
priority to bring new employees on by November 2, 2014, his supervisor demanded that he
complete a classification project for another agency, and he was to bring new hires for a third
agency by November 2, 2014. Appellant was directed to upload and hard copy change in hours
for 80 BLS employees and asserted that this task was previously performed by assistants, but that
S.C. directed him to complete it. He informed her that he could not provide a projected date of
completion of the change in hours as it was not a priority, but S.C. gave him a deadline of by
November 14, 2014. Appellant alleged the demands and requirements imposed by his supervisor
to carry out the assigned duties of BLS and the requirement to ensure the new hires for BLS were
brought onboard by November 10, 2014 contributed to his panic attack and severe anxiety.
In a November 18, 2018 report, Dr. Fair opined that the incident of October 30, 2014 was
the clear precipitant of his panic attack. She further opined that the stressful nature of his work
and work schedule, and the daily demands to accomplish goals set by his managers were a
precipitant to both his diagnoses and aggravated his preexisting anxiety.
By decision dated April 1, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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, 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
the employment injury.5 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.6
To establish an emotional condition in the performance of duty, the claimant must submit
the following: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to the condition; (2) medical evidence establishing a diagnosed emotional

5

D.I., Docket No. 19-0534 (issued November 7, 2019); T.G., Docket No. 19-0071 (issued May 28, 2019).

6

Id.

7

condition; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to the emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage of FECA.9
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.11 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.12
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.13
OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of
employment must identify those conditions. The [claims examiner] must carefully
develop and analyze the identified employment incidents to determine whether or
not they in fact occurred and if they occurred whether they constitute factors of the
employment. When an incident or incidents are the alleged cause of disability, the
[claims examiner] must obtain from the claimant, agency personnel and others,
such as witnesses to the incident, a statement relating in detail exactly what was
[stated] and done. If any of the statements are vague or lacking detail, the

7

Id.; E.M., Docket No. 19-0156 (issued May 23, 2019).

8

28 ECAB 125 (1976).

9

M.R., Docket No. 18-0305 (issued October 18, 2018); Robert W. Johns, 51 ECAB 136 (1999).

10

Supra note 6.

11

T.L., Docket No. 18-0100 (issued June 20, 2019).

12

Id.

13

Supra note 6.

8

responsible person should be requested to submit a supplemental statement
clarifying the meaning or correcting the omission.”14
OWCP’s regulations provide that an employing establishment who has reason to disagree
with an aspect of the claimant’s allegation should submit a statement that specifically describes
the factual argument with which it disagrees and provide evidence or argument to support that
position.15 Its regulations further provide in certain types of claims, such as a stress claim, a
statement from the employing establishment is imperative to properly develop and adjudicate the
claim.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s August 22, 2016 merit decision. The Board considered
that evidence in its November 22, 2017 decision and found that it was insufficient to establish a
compensable factor of employment. Findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA.17
The Board notes that appellant has attributed his emotional condition in part to Cutler18
factors. Appellant has alleged that his workload increased on October 14, 2014 as a coworker was
on leave and he was assigned an additional agency, BLS, which appellant contended was the most
labor intensive. The Board has held that overwork, when substantiated by sufficient factual
information to corroborate a claimant’s account of events, may be a compensable factor of
employment.19 Appellant further alleged inability to do his work due to changes in deadlines or
timeframes. Pursuant to Cutler20 these allegations could constitute compensable employment
factors if appellant establishes that his regular job duties or a special assignment caused an
emotional condition.21
In support of his claim, appellant provided documents indicating his normally assigned
four agencies. He listed his assigned tasks for these four agencies including six new vacancy

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997);
G.K., Docket No. 20-0508 (issued December 11, 2020); S.L., Docket No. 17-1780 (issued March 14, 2018).
15

20 C.F.R. § 10.117(a); G.K., id.; D.L., Docket No. 15-0547 (issued May 2, 2016).

16

Supra note 14 at Chapter 2.800.7(a)(2) (June 2011).

17

T.B., Docket No. 19-0029 (issued June 21, 2019); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

18

Supra note 8.

19

G.G., Docket No. 18-0432 (issued February 12, 2019).

20

Supra note 8.

21

Bobbie D. Daly, 53 ECAB 691 (2002); T.M., Docket No. 15-1774 (issued January 20, 2016).

9

postings, reviewing six applicants’ résumés, working with the agencies on three certificates of
eligibility, processing six new hires, and three desk audits.
Appellant then indicated that along with these regularly assigned tasks, with the addition
of BLS, he was required to complete several more vacancy postings, review of applicants’
résumés, work with BLS on certificates of eligibility, and certifying processing for 25 personnel
actions to ensure work hours were changed.
Appellant also provided a detailed description of steps required to complete each of his
assigned duties. He noted that developing vacancy announcements required a job analysis, an
agency SME, and a comprehensive draft of the duties and employment aspects of the position.
Appellant explained that, following the application process, he must review the selections made
by the agencies and audit the selected candidates. This required him to review between 30 and
100 applications and then determine the best qualified candidate. With regard to new hires,
appellant noted that he was required to enter information into the agency system, identify the FLSA
service computation date, ensure that the organization structure was correct and verify the type of
appointment. Appellant was also required to process benefits for the new hires. He was further
responsible for desk audits which included reviewing the position descriptions, making any
revisions needed, selecting an occupational series, and the title, grade, and classification of the
position.
OWCP received a copy of the October 30, 2014 written counseling which indicated that he
had not timely completed his assignments as he failed to meet deadlines for training and a vacancy
announcement. It further found that he had not obtained an SF-75 for a new employee and that he
did not respond regarding an ineligibility determination. Appellant also provided a January 21,
2016 statement from A.T. that described overhearing appellant explaining the pending items that
required his attention and his priorities. A.T. noted that he also explained why his work
deliverables were being delayed and his multiple priorities. She overheard S.C. directing him to
multitask. N.G., in her January 22, 2016 witness statement, reported overhearing S.C. inform
appellant that he was in the office for eight hours and that he should know how to prioritize.
In this case, further findings by OWCP are needed.22 Although it is a claimant’s burden of
proof to establish his claim, OWCP 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.23 It shares responsibility to see that justice is done.24
In a case where OWCP “proceeds to develop the evidence and to procure evidence, it must do so
in a fair and impartial manner.”25

22

N.S., Docket No. 16-0914 (issued April 10, 2018).

23

T.B., Docket No. 19-0323 (issued August 23, 2019).

24

M.T., Docket No. 19-0373 (issued August 22, 2019).

25

E.S., Docket No. 18-1493 (issued March 6, 2019).

10

On remand OWCP should obtain a signed detailed statement and relevant evidence and/or
argument regarding appellant’s allegations from the employing establishment.26 In particular,
OWCP should obtain his specific work records for the period he claimed that he was overworked
beginning on October 14, 2014 including which days he was at work, which days he was on leave,
and the number of hours that he worked. The employing establishment should also furnish
information regarding when the coworker who previously covered BLS went on leave, the extra
workload assigned to appellant, and how this affected him and his day-to-day work between
October 14 and 30, 2014, including regular and additional deadlines. The employing
establishment should compare appellant’s specific work assignments and entire workload after the
addition of BLS with that of his coworkers including the specific type and number of tasks that he,
and for comparison, his coworkers, were required to complete within the time period from
October 14 and November 10, 2014. The employing establishment should clarify the number of
deadlines or timelines that were changed and any varying level of multitasking required by
appellant and his coworkers in order to complete their respective assigned duties. After this and
such other further development as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

26
R.V., Docket No. 18-0268 (issued October 17, 2018); G.K., Docket No. 20-0508 (issued December 11, 2020);
D.I., Docket No. 19-0534 (issued November 7, 2019).

11

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further proceedings consistent with
this decision of the Board.
Issued: April 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________

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

Docket No. 09-93
Issued: July 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from an October 7, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his occupational injury
claim. 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 appellant has established he sustained an occupational disease in the
performance of duty.

FACTUAL HISTORY
This is the second appeal of this case before the Board. On July 11, 2008 the Board,1
finding an unresolved conflict in the medical opinion evidence, vacated the Office’s August 30,
2007 decision and remanded the case to the Office for further development and to obtain a
clarifying supplemental report from Dr. William T. Thieme, a Board-certified orthopedic
surgeon, the Office’s referee examiner, addressing the issue of whether appellant’s accepted
work activities aggravated his diagnosed conditions. The facts and the circumstances of the case
as set forth in the Board’s prior decision are incorporated herein.
Following remand, the Office, by letter dated July 15, 2008, requested from Dr. Thieme a
supplemental opinion that clarified his October 31, 2006 report and specifically addressed
whether appellant’s work duties aggravated his diagnosed conditions. For purposes of this
supplemental report, it authorized all additional diagnostic/testing procedures, including
reexamination of appellant, Dr. Thieme deemed appropriate to accomplish this task.
By medical report dated September 29, 2008, Dr. Thieme opined that no specific or
general work activities aggravated his knee or lumbar spine conditions.
By decision dated October 7, 2008, the Office, based upon Dr. Thieme’s September 29,
2008 supplemental report, denied appellant’s claim.
LEGAL PRECEDENT
When the Office refers appellant to a referee examiner for the purpose of resolving a
conflict in the medical evidence pursuant to 5 U.S.C. § 8123(a), it has a responsibility to secure a
medical report that properly resolves the conflict.2 When the opinion from the referee examiner
requires clarification or elaboration, the Office must further develop the medical evidence until
the conflict is properly resolved.3
ANALYSIS
The Office sought clarification from Dr. Thieme on the issue of whether appellant’s
alleged medical conditions were employment related. The Board finds that Dr. Thieme’s
supplemental opinion was not sufficient to resolve the conflict in medical evidence, as his
opinion is not well rationalized and he did not clarify or elaborate on the specific background
upon which he based his opinion.
Dr. Thieme’s opinion consisted of a single declarative sentence which asserted that no
specific or general work activities aggravated appellant’s knee or lumbar spine conditions. His
report did not discuss appellant’s employment duties or indicate that he reviewed a job
description concerning appellant’s specific position. Dr. Thieme’s report did not incorporate any
1

Docket 08-348 (issued July 11, 2008).

2

See Thomas Graves, 38 ECAB 409 (1987).

3

Id.

2

of appellant’s accepted employment duties into his consideration of causal relationship.
Therefore, his supplemental clarifying opinion is insufficient as it was not based on a proper
factual background.
As the Board pointed out in its prior decision, the issue to be resolved was whether
appellant’s medical conditions were caused, aggravated or exacerbated due to identified work
factors, which included working on his hands and knees as well as striking his knees against hard
surfaces.
Neither Dr. Thieme’s October 31, 2006 nor his most recent report, dated
September 29, 2008, fully or adequately addressed this issue. He did not explain why a sole
traumatic injury could cause appellant’s condition, while working on his hands and knees and
repeated injuries of striking his knees over a period of time could not cause or aggravate the
diagnosed conditions.
Accordingly, the Office has not resolved the conflict in the medical evidence. Thus, the
case must again be remanded to resolve the conflict. The referee physician should provide a
rationalized opinion as to whether appellant’s diagnosed medical conditions were caused,
aggravated or exacerbated due to identified work factors. The specific employment factors
should be clearly stated in the statement of accepted facts, all of the accepted employmentrelated conditions must be discussed by the physician. Following this and any other further
development as deemed necessary, the Office shall issue an appropriate merit decision on
appellant’s occupational disease claim.
CONCLUSION
The additional report from the referee examiner did not resolve the conflict and the case
is remanded for additional development.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2008 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edmore, MI, Employer
__________________________________________

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

Docket No. 09-406
Issued: September 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 26, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 20, 2008, with respect to an overpayment
of compensation. 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 the Office properly determined that an overpayment of
$4,495.94 was created due to an incorrect pay rate; and (2) whether the Office properly denied
waiver of the overpayment.
FACTUAL HISTORY
Appellant filed an occupational claim (Form CA-2) alleging that she sustained right knee
injuries as a result of her federal employment. The Office accepted the claim for aggravation of
degenerative arthritis in the right knee and right knee chondromalacia patella. Appellant filed a
claim for compensation (Form CA-7) commencing December 11, 2004. The reverse of the claim

form reported appellant’s annual earnings as $48,220.00. A Form CA-7 dated January 27, 2005
reported appellant’s annual earnings as of December 11, 2004 as $49,908.00.
In an undated letter received by the Office on February 4, 2005, appellant indicated that
she had stopped working as of August 2, 2004. She stated that she filed a Form CA-7 claiming
compensation from December 11, 2004 because this was the first pay period after the Office
accepted the claim.
The Office paid compensation for wage loss commencing December 11, 2004. The pay
rate for compensation purposes was $959.77 per week (based on $49,908.00 per year).
Appellant continued to receive compensation for wage loss based on a weekly pay rate of
$959.77.
The record indicates that appellant returned to work on March 3, 2008. By decision
dated May 28, 2008, the Office determined that actual earnings fairly and reasonably represented
her wage-earning capacity.1
On May 5, 2008 appellant filed a Form CA-7 claiming retroactive compensation from
August 6, 2004. In a memorandum dated August 28, 2008, the Office indicated that, as the date
disability began in this case was August 2, 2004, the Office had been paying compensation based
on an incorrect salary ($49.908.00). Appellant’s pay rate on August 6, 2004 was $48,820.00 per
year, or $927.31 per week. The Office paid appellant compensation from August 6 to
December 10, 2004 using the proper pay rate for compensation purposes of $927.31 per week.
By preliminary determination dated September 15, 2008, the Office stated that an
overpayment of $4,495.94 was created. It explained that commencing December 11, 2004,
appellant had been paid compensation based on the incorrect pay rate for compensation purposes
($49.908.00). According to the Office, the total overpayment for the period December 11, 2004
to March 2, 2008, and intermittent dates through August 15, 2008, was $4,533.80. It then
deducted $37.86 due to an excessive deduction of life insurance premiums. With respect to fault,
the Office found appellant was not at fault in creating the overpayment. Appellant was advised
to submit financial information relevant to the issue of waiver within 30 days.
On October 20, 2008 the Office received an overpayment recovery questionnaire (Form
OWCP-20). By decision dated October 20, 2008, it finalized its preliminary determination of a
$4,495.94 overpayment. The Office denied waiver and found appellant had not responded to the
preliminary determination.
LEGAL PRECEDENT -- ISSUE 1
Under 5 U.S.C. § 8101(2), “‘monthly pay’ means the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable

1

Appellant did not request that the Board review this decision.

2

disability recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater….”2
ANALYSIS -- ISSUE 1
In the present case, the Office paid compensation for wage loss commencing
December 11, 2004 using a pay rate for compensation purposes of $959.77 per week. This
determination was based on information provided by the employing establishment on claims for
compensation that appellant’s pay rate as of December 11, 2004 was $49,908.00 per year.3
Appellant, however, had indicated that the date disability began was actually August 2, 2004.
She later filed a claim for compensation commencing August 6, 2004.
As noted above, monthly pay in this case is properly determined under 5 U.S.C.
§ 8101(2) as the date disability began. Based on evidence from the employing establishment, the
Office found that appellant’s pay rate on August 2, 2004 was $48,220 per year, or $927.31 per
week. Appellant’s continuing compensation for wage loss after August 2, 2004 should have
been based on a pay rate for compensation purposes of $927.31. Since the Office used an
incorrect and higher pay rate for compensation purposes, an overpayment of compensation was
created.
As to the amount of the overpayment, the Office’s calculations show that, from
December 11, 2004 to March 2, 2008, and intermittently through August 15, 2008, appellant
received $133,640.66 in gross compensation. With a pay rate of $927.31, appellant should have
received $129,106.86 in compensation, resulting in an overpayment of $4,533.80.
The Office attempted to reduce the amount of the overpayment by $37.86 based on
incorrect life insurance deductions. As the Board explained in Lawrence Sherman,4 it is
improper to attempt to offset the overpayment based on amounts owed to appellant. There must
be proper consideration of waiver of the entire amount of the overpayment. Appellant remains
entitled to any amounts owed for improper deduction of life insurance premiums, but this is a
separate issue from the overpayment due to an incorrect pay rate. Based on the evidence, the
overpayment amount is $4,533.80.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act5 provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
2

See also 20 C.F.R. § 10.5(s), which defines “pay rate for compensation purposes” as the employee’s pay as
determined under 5 U.S.C. § 8114 at the time of injury, the time disability begins, or the time compensable disability
recurs, if the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.
3

The Board notes that the initial CA-7 forms filed December 28, 2004 and January 10, 2005 reported a pay rate
of $48,220.00 per year.
4

55 ECAB 359 (2004).

5

5 U.S.C. § 8101 et seq.

3

individual who is without fault and when adjustment or recovery would defeat the purpose of the
Act or would be against equity and good conscience.”6 Since the Office found appellant to be
without fault in the creation of the overpayment, the Office may only recover the overpayment if
recovery would neither defeat the purpose of the Act nor be against equity and good conscience.
The guidelines for determining whether recovery of an overpayment would defeat the purpose of
the Act or would be against equity and good conscience are set forth in sections 10.434 to 10.437
of Title 20 of the Code of Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of the
Act if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by the Office from data provided by the Bureau of Labor Statistics.7 For waiver
under the “defeat the purpose of the Act” standard, appellant must show that he needs
substantially all of his current income to meet current ordinary and necessary living expenses,
and that his assets do not exceed the resource base.8
The Board has held that since the Board’s jurisdiction of a case is limited to reviewing
the evidence which was before the Office at the time of its final decision, it is necessary that the
Office review all evidence submitted by a claimant and received by the Office prior to issuance
of its final decision. As the Board’s decisions are final as to the subject matter appealed, it is
critical that all evidence relevant to that subject matter which was properly submitted to the
Office prior to the time of issuance of its final decision be addressed by the Office.9
ANALYSIS -- ISSUE 2
On appeal, appellant indicates that she submitted additional evidence to the Office. The
record indicates that, on October 20, 2008, the Office received the completed OWCP-20
overpayment recovery questionnaire. The October 20, 2008 Office decision indicated that it did
not receive any response from appellant. It is well established that the Office is required to
review all evidence submitted by a claimant and received by the Office prior to the issuance of
its final decision, including evidence received on the date of the decision.10 The case will be
remanded to the Office for proper consideration of the evidence submitted on the issue of waiver.
After such further development as the Office deems necessary, it should issue an appropriate
decision.

6

Id. at § 8129(b).

7

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
8

See Robert E. Wenholz, 38 ECAB 311 (1986).

9

William A. Couch, 41 ECAB 548 (1990).

10

Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994).

4

CONCLUSION
The Board finds that an overpayment on $4,533.80 was created due to an incorrect pay
rate. The case will be remanded for proper consideration of the evidence on the issue of waiver.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2008 is modified to reflect an overpayment of
$4,533.80. The decision is set aside and the case remanded on the issue of waiver of the
overpayment.
Issued: September 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5