United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, MEDRANO
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 19-0776
Issued: September 25, 2019

Case Submitted on the Record

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

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a December 28, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 28, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent
disability for the period December 21, 2017 through September 11, 2018, causally related to her
accepted September 19, 2015 employment injury.
FACTUAL HISTORY
On September 19, 2015 appellant, then a 53-year-old custodian, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she lifted a heavy parcel and sustained a right
shoulder strain while in the performance of duty. She stopped work on September 19, 2015 and
returned to full-time work with restrictions on November 10, 2015. OWCP accepted the claim for
cervical ligament sprain, right shoulder lesion, and right shoulder incomplete rotator cuff tear or
rupture and paid intermittent wage-loss compensation on the supplemental rolls from
November 20, 2015 to March 4, 2016.
OWCP subsequently received a March 13, 2018 report from Dr. Charles E. Willis, II, a
Board-certified anesthesiologist, which noted appellant’s September 15, 2015 date of injury and
current complaints of neck and shoulder pain. Dr. Willis related that appellant was currently
employed performing light-duty work, and would be seen again in eight weeks. In duty status
reports (Form CA-17) dated January 9 and March 13, 2018, he indicated that she could perform
work for eight hours a day with restrictions.
In a work status note dated May 8, 2018, Dr. Willis related that appellant was disabled
from work on December 21, 2017 and January 18 and 25, February 22, April 17, and May 8
and 9, 2018 due to a flare-up of her original employment injury. He released her to return to work
on May 10, 2018 with restrictions.
Appellant filed a claim for wage-loss compensation (Form CA-7) for intermittent disability
during the period December 21, 2017 to September 11, 2018. In an attached time analysis form
(Form CA-7a), she claimed 40 hours of leave without pay (LWOP) for the dates December 21,
2017 and June 26 and 27, July 14, and September 11, 2018.
In a development letter dated October 1, 2018, OWCP informed appellant that her claim
for 32 hours of LWOP for June 26 and 27, July 14, and September 11, 2018 was currently not
payable due to the lack of supporting medical evidence that her disability was causally related to
her accepted employment conditions.3 It advised her regarding the medical evidence required to
establish her wage-loss claim and afforded her 30 days to provide the necessary evidence.
In response, appellant submitted reports dated September 25, November 6, and
December 18, 2018 from Dr. Willis. Dr. Willis noted that appellant was seen for complaints of
right shoulder pain and provided an assessment of her condition.

3

OWCP did not note the eight hours of disability appellant claimed on December 21, 2017.

2

By decision dated December 28, 2018, OWCP denied appellant’s claim for wage-loss
compensation for intermittent disability during the period December 21, 2017 to
September 11, 2018.4
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is a causal
relationship between the claimant’s claimed disability and the accepted employment injury. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the claimed period
of disability.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
4

OWCP incorrectly noted the date as December 27, 2017 rather than December 21, 2017.

5

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

6

Id.

7

20 C.F.R. § 10.5(f); B.O., supra note 5; N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id.

9

J.M., Docket No. 19-0478 (issued August 9, 2019).

10

R.H., Docket No. 18-1382 (issued February 14, 2019).

11

A.W., Docket No. 18-0589 (issued May 14, 2019).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
disability for the period December 21, 2017 through September 11, 2018, causally related to her
accepted September 19, 2015 employment injury.
Appellant alleged on a Form CA-7a that she was entitled to eight hours of wage-loss
compensation for December 21, 2017 and June 26 and 27, July 14, and September 11, 2018.
In a May 18, 2018 work status note, Dr. Willis indicated that appellant was disabled from
work due to a flare-up of her employment injury for various dates including the claimed
December 21, 2017 date. However, he did not explain why appellant’s accepted conditions caused
her to be disabled on the claimed dates.12 He did not address her alleged disability on June 26
and 27, July 14, and September 11, 2018. The Board has held that medical evidence must directly
address the specific dates of disability claimed and must provide a rationalized medical opinion
substantiating disability from work.13 Thus, this report from Dr. Willis is insufficient to establish
appellant’s claim.
The remaining evidence submitted in support of appellant’s claim for wage-loss
compensation fails to address the claimed period of intermittent disability. Therefore, this
evidence is also insufficient to meet appellant’s burden of proof.14
The issue of whether a claimant’s disability from work is related to an accepted condition
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability was causally related to the employment injury and
supports that conclusion with sound medical reasoning.15 As appellant has not submitted such
evidence in this claim, the Board finds that she has not met her burden of proof.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
disability for the period December 21, 2017 through September 11, 2018, causally related to her
accepted September 19, 2015 employment injury.

12

V.G., Docket No. 18-0936 (issued February 6, 2019).

13
G.J., Docket No. 18-1335 (issued March 22, 2019); K.A., Docket No. 16-0592 (issued October 26,
2016); C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

Supra note 11.

15

G.J., supra note 13; G.B., Docket No. 16-1033 (issued December 5, 2016).

16

G.J., supra note 13; K.A., Docket No. 17-1718 (issued February 12, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the December 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF THE ARMY, LUCIUS D.
CLAY KASERNE ARMY GARRISON,
Wiesbaden, Germany, Employer
__________________________________________

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

Docket No. 16-1847
Issued: April 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 19, 2016 appellant filed a timely appeal from an April 20, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established more than two percent permanent impairment
of the right upper extremity and one percent permanent impairment of the left upper extremity
for which he previously received schedule awards.
On appeal appellant asserts that the opinion of the attending orthopedist, who identified
impairments of 15 percent of the right upper extremity and 15 percent on the left, should be
credited.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 13, 2012 appellant, then a 46-year-old supervisory information technology
specialist, injured both hands upon exiting the employing establishment when the gate barricade
at the military base in Germany where he was working rose up and hit the rear wheel of his
bicycle, throwing him to the ground. Appellant stopped work that day. An employing
establishment report dated December 14, 2012 indicates that appellant was taken home by
military personnel, and went to the hospital the next day where it was determined that he had
multiple fractures on both hands.
Appellant had corrective surgery on December 21, 2012.
February 12, 2013.

He returned to work on

On March 1, 2013 OWCP accepted closed fracture of metacarpal bone, closed fractures
of multiple sites of bilateral phalanges, and bilateral contusions of the wrist and hand. Appellant
received intermittent compensation for medical and therapy appointments.
On February 11, 2016 appellant submitted a schedule award claim (Form CA-7).2 In an
attached medical report, Dr. M. M. Malek, a Board-certified orthopedic surgeon, noted the
history of injury and appellant’s complaints of dull upper extremity pain, and difficulty with
activities that required pushing and pulling, including driving. Upper extremity examination of
both shoulders and both wrists was normal. Examination of the right and left hands revealed
about 10 degrees of valgus angulation at the distal interphalangeal (DIP) joint of the left third
finger with no other deformity noted. Strength evaluation and grip examination utilizing manual
dynamometer demonstrated 22 pounds of force application on the right and 18 pounds of force
application on the left. Tinel’s and Phalen’s tests are negative. Dr. Malek reviewed x-rays done
on December 14, 2012. He diagnosed post-traumatic contusion and sprain of the right and left
wrists, post-traumatic comminuted fracture of the right fourth finger metacarpal, post-traumatic
oblique fracture of the third digit, right hand, and post-traumatic fracture of the fifth metacarpal
left hand. Dr. Malek advised that appellant had reached maximum medical improvement. He
advised that, in accordance with the appropriate charts, tables, and chapter of the latest edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(hereinafter A.M.A., Guides) with a reasonable degree of medical probability and consideration
of appellant’s level of pain, weakness, atrophy, loss of endurance, and loss of function (range of
motion (ROM)), appellant had 15 percent permanent impairment of the left upper extremity and
15 percent permanent impairment of the right upper extremity.
OWCP forwarded the medical evidence, including Dr. Malek’s report, to its medical
adviser, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, for review and an
impairment evaluation. In a March 21, 2016 report, Dr. Harris noted his review of the record
and the accepted conditions. He disagreed with Dr. Malek’s assessment, noting the only
abnormality found was some deformity of the right middle digit. Dr. Harris advised that, in

2

Appellant had initially submitted one page of a schedule award claim on May 4, 2015. By letter dated June 1,
2015 OWCP informed him that it would take no further action on the claim until it received a claim form, completed
and certified by the appropriate employing establishment.

2

accordance with the sixth edition of the A.M.A., Guides,3 and using the diagnosis-based
impairment (DBI) rating under Table 15-2, Digit Regional Grid, for residual problems with
fractures of right middle and ring digits, appellant had six percent digit impairment for each,
which was equivalent to one percent right upper extremity impairment for each, or a total two
percent right upper extremity impairment. He found that for residual problems with fracture of
left small digit, appellant had six percent digit impairment or one percent left upper extremity
impairment. OWCP’s medical adviser found the date of maximum medical improvement was
November 12, 2015, when appellant was examined by Dr. Malek.
By decision dated April 20, 2016, appellant was granted a schedule award for one percent
permanent impairment of the left upper extremity and two percent permanent impairment of the
right upper extremity, to run for 9.36 weeks, from November 12, 2015 to January 16, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,

3

A.M.A., Guides (6th ed. 2009).

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

5 U.S.C.

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 1 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).

3

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
ANALYSIS
The issue on appeal is whether appellant established more than two percent permanent
impairment of the right upper extremity and one percent permanent impairment of the left upper
extremity for which he previously received schedule awards. The accepted conditions in this
case are closed fracture of metacarpal bone, closed fractures of multiple sites of bilateral
phalanges, and bilateral contusions of the wrist and hand. Appellant received a schedule award
dated April 20, 2016 for a total one percent permanent impairment of the left upper extremity
and two percent permanent impairment on the right upper extremity.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.9
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.10 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.11
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment.
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 20, 2016 decision. Following
OWCP’s development of a consistent method for calculating permanent impairment for upper
extremities to be applied uniformly, and such other development as may be deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim for an additional right upper extremity
schedule award.
8

Isidoro Rivera, 12 ECAB 348 (1961).

9

T.H., Docket No. 14-0943 (issued November 25, 2016).

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

Supra note 8.

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 18, 2017
Washington, DC

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

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

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

5


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

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

Docket No. 13-1577
Issued: December 13, 2013

Case Submitted on the Record

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

JURISDICTION
On June 21, 2013 appellant filed a timely appeal from a December 27, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his application for
reconsideration as his request was untimely filed and failed to establish clear evidence of error.
Since more than 180 days elapsed from the last merit decision, dated December 21, 2011, and
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to establish
clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that his request for reconsideration was timely filed as it
was received by OWCP within one year of the December 21, 2011 merit decision.
FACTUAL HISTORY
This case has previously been before the Board. In the prior decision dated
December 21, 2011, the Board conducted a merit review of appellant’s claim and concluded that
OWCP properly determined that his employment-related aggravation of degenerative disc
disease had resolved. The facts as set forth in the Board’s prior decision are hereby incorporated
by reference.2
By letter dated December 12, 2012 and received by OWCP on December 18, 2012,
appellant requested reconsideration. In support of his request, he submitted a new report by
Dr. Guy H. Earle, a Board-certified family practitioner, who opined that appellant had an
identifiable back condition, and that, although the degenerative changes seen in the imaging
studies were not caused by his exposure to vibration, on a more probable than not basis,
appellant’s condition is a “lighting up of a preexisting but asymptomatic degenerative condition
of his lumbar spine. The proximate cause of this would be the excessive vibration between
September 2001 and August 2002.” Appellant also submitted a supplemental letter, dated
December 18, 2012, wherein he contended that OWCP made various errors in evaluating the
medical evidence.
By decision dated December 27, 2012, OWCP denied appellant’s request for
reconsideration as it found that it was untimely filed and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.5

2

Docket No. 11-131 (issued December 21, 2011). On December 24, 2002 appellant, then a 53-year-old
supervisory general engineer, filed an occupational disease claim alleging a low back condition as a result of riding
the shipyard’s handicapped vehicles. OWCP accepted his claim for temporary aggravation of lumbar degenerative
disc disease for the period September 2001 through August 2002.
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

2

OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.6 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP decision.13
ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated December 27,
2012 wherein it declined to review appellant’s case on the merits because the request for
reconsideration was not timely filed and did not show clear evidence of error.
In its December 27, 2012 decision, OWCP denied appellant’s request for reconsideration,
received by OWCP on December 18, 2012, finding that it was untimely filed and failed to
6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., supra note 4.

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present clear evidence of error. The Board finds that OWCP improperly determined that
appellant’s request for reconsideration was not timely filed within the one-year time limitation
period set forth in 20 C.F.R. § 10.607. The last merit decision issued in this case was the
Board’s decision dated December 21, 2011. As appellant’s request was received by OWCP on
December 18, 2012, within one year of the Board’s December 21, 2011 decision, his request for
reconsideration was timely filed.
The Board further finds that OWCP improperly denied appellant’s reconsideration
request by applying the legal standard for cases where reconsideration is requested after more
than one year has elapsed. Accordingly, OWCP should have applied the standard for timely
reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3).14 Since it erroneously reviewed
the evidence in support of appellant’s reconsideration request under the more stringent clear
evidence of error standard, the Board will remand the cased for review of this evidence under the
proper standard of review for a timely reconsideration request.
CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for
reconsideration was untimely filed.

14

20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in
writing and set forth argument and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 27, 2012 is set aside and remanded for action
consistent with this decision.
Issued: December 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Durham, NC, Employer
__________________________________________

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

Docket No. 13-1642
Issued: January 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2013 appellant, through her attorney, filed a timely appeal from a May 28,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
This is the second appeal in the present case. In a December 14, 2011 decision, the
Board affirmed a December 3, 2010 OWCP decision denying disability compensation for the

1

5 U.S.C. §§ 8101-8193.

period July 27, 2007 to December 3, 2010.2 The relevant facts and circumstances of this case are
incorporated herein by reference.3
On January 6, 2012 appellant filed a claim for a schedule award due to permanent
impairment to his back.
By letter dated January 30, 2012, OWCP requested appellant’s treating physician,
Dr. Anand Joshi, a Board-certified orthopedic surgeon, to submit a report in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4 It advised that under FECA, awards for permanent impairment
may not be made for the spine; however, such awards can be paid for impairment of the upper or
lower extremities caused by an injury to a spinal nerve. OWCP informed Dr. Joshi that, for
rating impairment of the upper or lower extremities caused by a spinal injury, it had adopted the
approach outlined in the July to August 2009 The Guides Newsletter.5
In an April 2, 2012 report, Dr. Joshi advised that appellant was not yet at maximal
medical improvement and he could not perform an impairment rating until that time. He further
noted that he had not diagnosed her with a spinal nerve injury (radiculopathy), but had diagnosed
her with radiculitis. In a letter dated April 10, 2012, OWCP advised appellant that Dr. Joshi had
not placed her at maximum medical improvement and therefore no schedule award could be
determined at that time.
On September 12, 2012 appellant, through her attorney, again requested a schedule
award. She submitted a report from Dr. William C. Daniels, a Board-certified orthopedic
surgeon, dated August 20, 2012. Dr. Daniels noted that appellant had undergone nerve
conduction studies on August 1, 2012 which showed no abnormalities and no evidence of
peripheral neuropathy. Examination revealed normal gait, some limitation of motion of the
lumbar spine and pelvis, tenderness at L1-2 and S1, no spasms, no evidence of scoliosis and
normal lordosis. Dr. Daniels noted sensation was patchy to pinprick and light touch in the
bilateral lower extremities below the knees with some identification of pinprick on the lateral
aspect of the left foot as well as the first dorsal interspace with questionable sensation to pinprick
on the right at the first dorsal web space. He diagnosed sprain of the back and lumbar region,
degeneration of lumbar or lumbosacral intervertebral disc and spinal stenosis, lumbar region.
Dr. Daniels noted that pursuant to the A.M.A., Guides, appellant’s pain disability questionnaire
was 113, and she had and a gross score of 28 for the lower limb. He opined that there was
evidence of degenerative changes in her lumbosacral spine and some degree of bulging, with no
2

Docket No. 11-846 (issued December 14, 2011).

3

On July 24, 2007 appellant, a temporary medical technician, injured her back while lifting boxes. OWCP
accepted her claim for a lumbar sprain/strain and an aggravation of lumbar disc disease with radiculopathy at L3-4
with lumbar spinal stenosis at L3-4. Appellant stopped work on July 30, 2007 and was terminated from her position
for cause on August 10, 2007, for failing to follow medical center policies.
4

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

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

2

evidence of extruded disc or nerve root compression. Dr. Daniels noted that appellant
demonstrated some mild/moderate loss of strength on the left side. He advised that the findings
of mixed sensory changes in the bilateral lower extremities could be consistent with the
diagnoses of early diabetic neuropathy but noted that she had significant symptoms on the left
side since her work injury. Dr. Daniels noted no evidence of definitive peripheral neuropathy.
He referenced A.M.A., Guides, Table 16-12, page 535, Peripheral Nerve Impairment, for the
lower extremity and noted that appellant exhibited tibial nerve dysfunction. Dr. Daniels
determined that she was class 1, which yielded a grade C, default impairment of two percent for
a moderate sensory deficit or moderate motor deficit, below the mid-calf. He noted that using a
combination of appellant’s clinical history, current symptoms and questionnaire values, pursuant
to Table 17-6, page 575, for functional history adjustment he noted a grade modifier 2, for
physical examination he noted a grade modifier 1 and for clinical studies he noted a grade
modifier of 0. Dr. Daniels opined that for the tibial nerve, applying the grade modifier for
functional history and physical examination for a net grade modifier adjustment score of +1 for
three percent lower extremity impairment. He opined that appellant was difficult to evaluate
because of overlapping factors of a previous injury combined with persistent, chronic left lower
extremity pain, weakness and numbness in the presence of a diabetic condition. Dr. Daniels
noted the possibility of early diabetic neuropathy but noted that the findings of weakness
primarily below the knee along with sensory changes would suggest some degree of peripheral
nerve involvement.
In a November 16, 2012 report, OWCP’s medical adviser noted that Dr. Daniels’
August 20, 2012 report provided a three percent impairment rating. He indicated that
Dr. Daniels’ use of the peripheral nerve section of the A.M.A., Guides, Table 16-12, page 535
was improper. The medical adviser noted that OWCP allowed for extremity impairment
resulting from spinal nerve root deficit but there was no evidence in the record of radiculopathy.
He noted that electrodiagnostic studies in 2008 and August 1, 2012 did not indicate spinal nerve
root impairment and no spinal surgery was performed. The medical adviser found that there was
no evidence in the record for a ratable impairment related to the accepted conditions. Therefore
there was zero percent impairment of the left and right lower extremities.
In a decision dated December 17, 2012, OWCP denied appellant’s claim for a schedule
award based on the report of OWCP’s medical adviser, who found no basis for a schedule award.
On December 26, 2012 appellant requested an oral hearing which was held on
March 14, 2013. She submitted a June 20, 2011 report from Dr. Joshi, who treated her for low
back pain radiating into the legs. Dr. Joshi noted numbness and tingling in both legs and
radicular symptoms reproduced with side bending. He noted that a magnetic resonance imaging
scan of the lumbar spine dated June 8, 2011 revealed grade 1 retrolisthesis of L4-5, bilateral joint
arthropathy at L3-4 with mild left and central stenosis, disc bulge at L4-5 with a right central disc
protrusion, bilateral joint arthropathy, mild right and left foraminal stenosis and mild disc bulge
at L5-S1 with joint arthropathy and foraminal stenosis. Dr. Joshi diagnosed bilateral
lumbosacral radiculitis and bilateral L5-S1 foraminal stenosis, grade 1 retrolisthesis at L4-5,
right central disc protrusion at L4-5 and bilateral L4-5 and L5-S1 joint arthropathy. He
recommended spinal injections.

3

In a decision dated May 28, 2013, OWCP’s hearing representative affirmed the decision
dated December 17, 2012.
LEGAL PRECEDENT
Section 8107 of FECA6 and its implementing federal regulations7 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, FECA 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 for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.8 For decisions issued beginning May 1, 2009, the
sixth edition of the A.M.A., Guides will be used.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
ANALYSIS
Appellant’s claim was accepted by OWCP for lumbar sprain/strain, aggravation of
lumbar disc disease with radiculopathy at L3-4 and lumbar spinal stenosis at L3-4. On
November 7, 2012 she filed a claim for a schedule award. The Board finds that the medical
evidence of record does not establish that appellant sustained permanent impairment of the lower
extremities.
Appellant submitted an August 20, 2012 report from Dr. Daniels, who opined that
pursuant to Table 16-12, page 535 of the A.M.A., Guides, she had peripheral nerve impairment
for which he calculated a three percent permanent impairment. Dr. Daniels calculated an
impairment rating as it related to tibial nerve dysfunction. However, the Board finds that he did
not properly follow the rating process outlined in the A.M.A., Guides for performing a peripheral
nerve rating. The process in the A.M.A., Guides directs the rating physician to use the
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

4

adjustment grids in Chapter 16 and to exclude any adjustment for physical examination as
neurologic examination findings define the impairment values in Table 16-7.12 Dr. Daniels, as
noted, used adjustment grids in Chapter 17, for the spine, which are different than the adjustment
grids in Chapter 16, for the legs.13 He also included an adjustment for physical examination
contrary to the language of the A.M.A., Guides which states that there should be no adjustment
for physical examination.14 Dr. Daniels also appeared to attribute appellant’s impairment in part
to mixed sensory changes in the bilateral lower extremities consistent with the diagnoses of early
diabetic neuropathy, a condition not accepted as work related.15 Thus, as his report did not
properly follow the procedures set forth in the A.M.A., Guides, it is of limited probative value.
In his November 16, 2012 report, OWCP’s medical adviser noted that Dr. Daniels
improperly used the peripheral nerve section of the A.M.A., Guides. He also noted that there
was no evidence in the record of radiculopathy and noted that electrodiagnostic studies in 2008
and August 1, 2012 did not indicate spinal nerve root impairment. The medical adviser properly
found that there was no evidence in the record for a ratable impairment related to the accepted
conditions. Therefore, the Board finds that there was zero percent impairment of the left and
right lower extremities.
Appellant submitted a June 20, 2011 report from Dr. Joshi, who treated her for low back
pain radiating into the legs. However, Dr. Joshi did not provide an impairment rating and
opined, in his report dated April 2, 2012, that she had not yet reached maximum medical
improvement as of April 2, 2012. The Board notes that it is well established that a schedule
award cannot be determined and paid until a claimant has reached maximum medical
improvement and as of June 20, 2011 appellant had not reached maximum medical
improvement.16
The Board finds that there is no medical evidence in conformance with the A.M.A.,
Guides showing a ratable impairment of the legs.
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.

12

See A.M.A., Guides 533.

13

Compare Table16-6, functional history -- lower extremities, page 516, with Table 17-6, functional history
adjustment -- spine, page 575.
14

See supra note 12 at section 16.4c(3)(b).

15

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
16

See Joseph R. Waples, 44 ECAB 936 (1993).

5

CONCLUSION
The Board finds that appellant is not entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, HOUSTON TEXAS
PROCESSING & DISTRIBUTION FACILITY,
North Houston, TX, Employer
__________________________________________

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

Docket No. 21-1127
Issued: February 10, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 25, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated January 15, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 30, 2017 appellant, then a 51-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date she strained her middle and lower back when
lifting a tray of mail while in the performance of duty. She stopped work on January 30, 2017.
In a February 8, 2017 initial evaluation report, Dr. Azim Karim, a physician specializing
in family medicine, reported that he treated appellant for a work -related injury on
January 30, 2015. He provided examination findings and diagnosed lumbosacral radiculopathy,
lumbar degenerative disc disease, acute lumbar disc herniation, acute lumbar strain and obesity.
Appellant came under the treatment of Dr. Steven B. Inbody, a Board-certified neurologist,
from February 27 through July 5, 2017, who diagnosed sprain of the ligaments of the thoracic
spine and sprain of the ligaments of the lumbar spine caused by lifting a mail tray at work on
January 30, 2017. Dr. Inbody opined that appellant was totally disabled from work due to the
above work-related conditions.
On March 15, 2017 OWCP accepted appellant’s claim for sprain of the ligaments of the
thoracic spine and sprain of the ligaments of the lumbar spine.
On April 12, 2017 appellant filed a claim for compensation (Form CA-7) for disability
from work, commencing March 18, 2017, as a result of her accepted employment injury. 2
In a June 2, 2017 report, Dr. Inbody requested that appellant’s claim be expanded to
include sciatic nerve injury at the right and left hip, cervical sprain of the liga ments and joints,
brachial neuritis, and cervico-cranial syndrome as causally related to the January 30, 2017 work
incident. He further requested approval of medical disability beginning January 30, 2017.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Nathan Hammel, a Board-certified orthopedist serving as
the district medical adviser (DMA). In a July 31, 2017 report, Dr. Hammel noted his disagreement
with Dr. Inbody’s assessment that the additional claimed neck and arm conditions were causally
related to the January 30, 2017 accepted work incident. He advised that the findings were
inconsistent and there was no clear causal link for the neck and arm conditions and no mechanical
possibility of the January 30, 2017 incident leading to sciatic nerve injuries.
By decision dated August 3, 2017, OWCP denied appellant’s claim for disability from
work, commencing March 18, 2017, and also denied the expansion of the acceptance of her claim
to include additional conditions.
OWCP subsequently received additional evidence. A January 30, 2017 magnetic
resonance imaging (MRI) scan of the lumbar spine revealed mild degenerative disc changes at L23 and L3-4, moderate degenerative disc changes with foraminal narrowing at L4-5, and mild
degenerative disc changes at L5-S1. An electromyogram (EMG) and nerve conduction velocity
(NCV) study dated March 23, 2017 revealed neurovascular compression of the peroneal branch of
2

Appellant thereafter filed multiple CA-7 forms for disability beginning March 18, 2017.

2

the left sciatic nerve at the greater sciatic notch of the left hip and tibial branch of the right sciatic
nerve at the greater sciatic notch of the right hip.
On July 19, 2018 appellant requested reconsideration.
On January 8, 2019 OWCP advised that a conflict in medical opinion evidence existed
between Dr. Inbody, appellant’s treating physician, and Dr. Hammel, OWCP’s DMA, regarding
expansion of the acceptance of her claim to include additional conditions, and whether she had
disability from work due to the accepted employment injury.
On February 5, March 13, and April 11, 2019 OWCP referred appellant to Dr. David
Vanderweide, a Board-certified orthopedist, for an impartial medical evaluation to resolve the
conflict in medical opinion between Dr. Inbody and Dr. Hammel. Appellant failed to attend the
evaluation.
In a letter dated May 7, 2019, appellant asserted that there was a conflict of interest between
Dr. Inbody and the impartial medical examiner (IME), Dr. Vanderweide that would cause bias in
her case. She additionally indicated that the IME’s office was 120 miles round trip from her home
and she could not ride long distance.
By decision dated June 24, 2019, OWCP denied modification of the August 3, 2017
decision.
On October 17, 2019 appellant requested reconsideration of the June 24, 2019 decision.
She submitted reports from Dr. Inbody dated July 12 through September 6, 2019.
By decision dated January 15, 2020, OWCP denied modification of the June 24, 2019
decision.
OWCP received additional evidence, including a January 30, 2017 MRI scan of the
thoracic spine that revealed minimal disc bulging in the upper thoracic spine (not unusual for
appellant’s age), advanced disc degeneration, and spondylosis in the lower cervical spine.
Appellant was treated by Dr. Ajay Aggarwal, a Board-certified anesthesiologist, on
November 14, 2019, February 6, March 5, and 20, 2020, for middle and low back pain that began
on January 30, 2017 while lifting trays of mail at work. Dr. Aggarwal diagnosed sprain of
ligaments of thoracic spine and sprain of ligaments of the lumbar spine. He recommended warm
moist heat, physical therapy, and lumbar transforaminal epidural steroid injections. In a duty status
report (Form CA-17) dated February 6, 2020, Dr. Aggarwal diagnosed thoracic sprain and lumbar
sprain and advised that appellant was totally disabled from work.
A June 3, 2020 report from Dr. Inbody noted that appellant remained symptomatic and
disabled from her injuries. Dr. Inbody diagnosed sprain of the ligaments of the thoracic and lumbar
spine, lesion of sciatic nerve right and left lower limbs, cervical sprain of ligaments and joints,
cervicocranial syndrome, and brachial plexus disorders. He noted that appellant was stable without
objective changes and remained incapacitated from work.

3

A computerized tomography (CT) scan of the abdomen and pelvis dated September 15,
2020 revealed multiple hepatic cysts, endplate irregularity surrounding L5 -S1, which may be
degenerative in nature, and moderate sclerosis at L4-5.
On January 20, 2021 appellant requested reconsideration of the January 15, 2020 decision.
In a January 14, 2021 statement, she indicated that, due to a conflict of opinion in her case, she
was referred to an IME. Appellant’s treating physician, Dr. Inbody, recommended that she not
attend the examination due to a conflict of interest. She requested to be referred to another IME.
By decision dated February 25, 2021, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought. 4 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 5 Imposition of this
one-year filing limitation does not constitute an abuse of discretion. 6
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 7 Its procedures provide that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP. 8 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.9

3

5 U.S.C. § 8128(a). See also L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440
(issued March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

6

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5 (September 2020).
9

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).

4

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations12 and procedures 13 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 14
The most recent merit decision was OWCP’s January 15, 2020 decision, which denied
modification of the decision denying appellant’s claim for disability commencing March 18, 2017
and the expansion of the acceptance of her claim. As OWCP received her request for
reconsideration on January 20, 2021, more than one year after the January 15, 2020 merit decision,
the Board finds that it was untimely filed. Consequently, she must demonstrate clear evidence of
error on the part of OWCP.
The Board finds that the evidence of record is insufficient to demonstrate clear evidence of
error. Appellant submitted reports from Dr. Aggarwal dated November 14, 2019, and February 6,
and March 5 and 20, 2020, who treated her for middle back and low back pain that began on
January 30, 2017 while lifting trays of mail at work. He diagnosed sprain of ligaments of thoracic
spine and sprain of ligaments of the lumbar spine. Similarly, in a Form CA-17 dated February 6,
2020, Dr. Aggarwal diagnosed thoracic sprain and lumbar sprain and advised that appellant was
totally disabled from work. A June 3, 2020 report from Dr. Inbody noted diagnoses and indicated
10

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (September 2020).

11

U.C., Docket No. 19-1753 (issued June 10, 2020).

12

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
13

Supra note 5 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

5

that appellant was still symptomatic and remained incapacitated from work. Appellant also
submitted an MRI scan of the thoracic spine dated January 30, 2017 and a CT scan of the abdomen
and pelvis dated September 15, 2020. However, none of these reports addressed causal
relationship between appellant’s disability from work commencing March 18, 2017 and the
accepted employment injuries. They also failed to address the expansion of appellant’s claim.
This evidence, therefore, does not raise a substantial question as to the correctness of OWCP’s
January 15, 2020 merit decision. 15 None of the evidence manifests on its face that OWCP
committed an error in denying appellant’s claim for disability commencing March 18, 2017 or
expansion of her claim. Thus, the evidence is insufficient to demonstrate clear evidence of error.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

16

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, ENCANTO STATION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 07-1454
Issued: December 14, 2007

Case Submitted on the Record

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

JURISDICTION
On May 7, 2007 appellant filed a timely appeal from a February 23, 2007 merit decision
of the Office of Workers’ Compensation Programs finding that he received an overpayment of
compensation and denying waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $52,034.91; and
(2) whether the Office properly denied wavier of the overpayment. On appeal, he does not
contest fact or amount of the overpayment. Appellant contends that the Office erred in failing to
grant waiver of the overpayment.
FACTUAL HISTORY
On October 25, 1994 appellant, then a 51-year-old letter carrier, filed a claim for a
traumatic injury to his right knee occurring on that date in the performance of duty. The Office

accepted his claim for internal derangement of the right knee. Appellant underwent an
arthroscopic condroplasty of the right medial femoral condyle on May 17, 1995.
By decision dated August 9, 1996, the Office granted appellant a schedule award for a 31
percent permanent impairment of the right upper extremity.1 The period of the award ran for
89.28 weeks from October 5, 1995 to June 20, 1997.
On April 4, 2003 appellant underwent a right total knee arthroplasty. The Office placed
him on the periodic rolls beginning April 20, 2003. Appellant resumed full-time limited-duty
employment on September 20, 2003.
Based on a review of the medical evidence, on June 1, 2004 an Office medical adviser
opined that appellant had a 37 percent impairment of his right lower extremity. By decision
dated June 18, 2004, the Office granted him a schedule award for a 37 percent permanent
impairment of the right lower extremity. The period of the award ran for 106.56 weeks, from
September 21, 2003 to October 5, 2005.
Appellant requested an oral hearing, which was held on April 26, 2005.2 In a decision
dated August 2, 2005, the Office hearing representative affirmed the June 18, 2004 schedule
award determination. She noted, however, that the Office paid appellant a schedule award for an
additional 37 percent impairment of the right lower extremity even though he had previously
received an award for a 31 percent right lower extremity impairment. The hearing representative
determined that appellant should have received the difference in these amounts, or an award for
an additional six percent right lower extremity impairment.
On August 24, 2005 a claims examiner noted that appellant received a schedule award of
$65,622.62 from September 21, 2003 to August 6, 2005 for the 37 percent permanent
impairment of the right lower extremity. He should have received an additional six percent
impairment of the right lower extremity, or an additional award of $11,033.63. The claims
examiner subtracted $11,033.63 from $65,622.62 and determined that appellant received an
overpayment of $54,588.99. The Office subtracted $2,554.08 from the amount of the
overpayment after noting that records showed a duplicate posting to find a total overpayment of
$52,034.91.
On September 15, 2006 the Office notified appellant of its preliminary determination that
he received an overpayment of $52.034.91 because he received a schedule award for a 37
percent right lower extremity impairment instead of an award for an additional 6 percent right
lower extremity impairment. The Office further informed him of its preliminary determination
that he was without fault in creating the overpayment and requested that he submit an enclosed
overpayment recovery questionnaire and supporting financial information.

1

In a decision dated June 26, 1996, the Office determined that appellant’s actual wages as a modified letter
carrier fairly and reasonably represented his wage-earning capacity.
2

At the hearing, appellant noted that he had retired from federal employment.

2

On October 12, 2006 appellant contended that the Office should waive the overpayment
and requested a decision based on the written evidence. He did not challenge the finding that an
overpayment occurred or the amount of overpayment. Appellant submitted the overpayment
recovery questionnaire and supporting financial information. He indicated that he and his spouse
had a total monthly income of $7,365.29. Appellant listed monthly mortgage expenses of
$3,388.67, food expenses of $400.00, clothing expenses of $300.00, utility expenses of
$1,303.73 and miscellaneous expenses of $897.02. He additionally indicated that he had credit
card debt of $1,286.87 per month, for total monthly expenses of $7,576.29. Appellant specified
that he had a checking and savings account balance of $161.00 and that the value of his
household furniture was $5,000.00. He also listed as an asset a mortgage of $225,448.68.
Appellant submitted financial documentation showing that he made monthly payments as
follows: $235.00 to Beneficial, $27.00 to Lowe’s, $144.00 to GE Money, $113.00 to Military
Star, $16.00 to Catherines, $225.89 to Home Depot, $91.00 to an unnamed credit card, $10.00 to
Sears, $126.13 to Texaco, $10.00 to Chevron and $10.00 to Exxon. He also paid $400.00
monthly to the Internal Revenue Service for back taxes. Appellant further submitted
documentation showing that he made a monthly mortgage payment to Countrywide of $1,671.49
per month. Additionally, he paid property taxes of $104.19 and made insurance payments of
$270.54 per month and $151.80 per month.3 Appellant paid $61.40 monthly for water, $59.94
for waste removal, $171.75 for sewer, $224.93 for electricity, $72.51 for telephone, $124.39 for
cellular telephone, $35.00 for lawn care, $138.25 for pool services and $89.68 for cable and
internet. He further submitted medical bills from his insurance company for himself and his
dependents.
On February 23, 2007 the Office verified by telephone that appellant had a primary and
secondary residence and paid mortgage expenses of $1,500.00 per month on the primary
residence and $2,500.00 per month on his secondary house.4 The total mortgage was
$225,448.68.
By decision dated February 23, 2007, the Office determined that appellant was not
entitled to waiver of the $52,034.91 overpayment of compensation. The Office reviewed the
supporting financial information and noted that he had $226.16 in assets after excluding his
residence and furniture. The Office found that the financial documentation established that
appellant had total mortgage expenses, including property taxes and insurance, of $2,198.03,
clothing expenses of $329.58 and utilities of $759.84. The Office found that appellant’s
miscellaneous expenses totaled $1,594.08 rather than $897.02. The Office included in
miscellaneous expenses $400.00 to the Internal Revenue Service, $235.00 to Beneficial
Financial, $569.70 in medical expenses, $717.13 for transportation expenses and $138.24 for
household expenses. The Office additionally determined that $400.00 was a reasonable amount
for food even though the documentation supported less than that amount. The Office found that
appellant had credit card expenses of $653.89, consisting of minimum payments on a Lowe’s
credit card of $27.00, a Home Depot credit card of $225.89, a Military Star credit card of
$140.00, a GE Money credit card of $144.00, a Catherine’s credit card of $16.00 and two other
3

It is not clear what the payment of $151.80 insures.

4

Appellant did not submit documentation regarding the mortgage on his second house.

3

credit cards with minimum payments of $91.00 and $10.00. The Office totaled appellant’s
monthly expenses as $5,935.42 and found that his reported income was $7,365.29. The Office
concluded that he was not entitled to wavier and that he should submit payments of $500.00 per
month to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act5 provides that, if there is a
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function. If a claimant receives a schedule award and the medical evidence does not support
the degree of permanent impairment awarded, an overpayment of compensation may be created.6
The Office’s procedure manual provides that an overpayment of compensation can occur
under various circumstances, including when a claimant “is determined to be not entitled to
compensation already paid.”7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained internal derangement of the right knee due
to an October 25, 1994 employment injury.
He underwent arthroscopic surgery on
May 17, 1995. On August 9, 1996 the Office granted appellant a schedule award for a 31
percent permanent impairment of the right lower extremity. The Office paid him compensation
for 89.28 weeks from October 5, 1995 to June 20, 1997. Appellant underwent a right total knee
arthroplasty on April 4, 2003. An Office medical adviser determined that he had a 37 percent
impairment of the right lower extremity. On June 18, 2004 the Office granted him a schedule
award for a 37 percent permanent impairment of the right lower extremity. The Office paid him
compensation of $65,622.62 from September 21, 2003 to August 6, 2005 for the 37 percent
permanent impairment of the right lower extremity. Appellant, however, was only entitled to
receive compensation for an additional 6 percent right lower extremity impairment, or
$11,033.63, as the Office previously paid him for a 31 percent right lower extremity impairment.
The claims examiner subtracted $11,033.63 from $65,622.62 and determined that appellant
received an overpayment of $54,588.99. The Office then subtracted $2,554.08 from $54,588.99
after noting that records inaccurately showed a duplicate posting and found a total overpayment
of $52,034.91. Appellant does not dispute that he received an overpayment of compensation in
the amount of $52,034.91.

5

5 U.S.C. § 8101-8193.

6

See Richard Saldibar, 51 ECAB 585 (2000).

7

Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment Actions, Identification of Overpayments and
Debts, Chapter 6.200.2d (May 2004).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act8 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver 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 10.436 and 10.437 of Title
20 of the Code of Federal Regulations.
According to section 10.436, recovery of an overpayment will defeat the purpose of the
Act if recovery would cause undue hardship by depriving a presently or formerly entitled
beneficiary of income and resources needed for ordinary and necessary living expenses and
outlines the specific financial circumstances under which recovery may be considered to “defeat
the purpose of the Act.”9
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.10
ANALYSIS -- ISSUE 2
In order to establish that repayment of the overpayment would defeat the purpose of the
Act, appellant must show that he requires substantially all of his income to meet current ordinary
and necessary living expenses and that his assets do not exceed the resource base as determined
by the Office’s procedures.
The Office found that appellant’s assets did not exceed the applicable resource base.11
The Office determined, however, that he did not establish that he needed substantially all of his
income to meet ordinary and necessary living expenses. Appellant indicated on the overpayment
recovery questionnaire that his monthly expenses of $7,576.29 exceeded his monthly income of
$7,365.29. He listed expenses of $3,388.67 for mortgages, $400.00 for food, $1,303.73 for
8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436.

10

20 C.F.R. § 10.437.

11

The Office did not assess the equity in appellant’s second home. Nonliquid assets include but are not limited to
the fair market value of an owner’s equity in property such as a camper, boat, second home and furnishings/supplies.
The value of an income-producing property is not included, however, if income from such property has been
included in comparing income and expenses. Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.6(a) (May 2004).

5

utilities and $897.02 for miscellaneous expenses. The Office found that $400.00 for food was
reasonable but determined that he paid $2,198.03 for monthly mortgage expenses according to
the financial documentation. The Office further found that he paid utilities of $759.84, had
clothing expenses of $329.58 and incurred miscellaneous expenses of $1,594.08, which included
$400.00 monthly as payment of back taxes, $569.70 for medical expenses and $235.00 to
Beneficial Financial. Appellant indicated that he had credit card debt of $1,286.87 per month.
The Office found, however, that he owed minimum credit card payments of $654.89. The Office
calculated that his expenses totaled $5,935.42 and his income was $7,355.29.12 Documentation
submitted by appellant supports that his income exceeded his expenses by over $50.00 per
month.13 An individual is deemed to need substantially all of his or her monthly income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.14 Thus, the Office properly found that appellant did not need
substantially all of his income for ordinary and necessary expenses.
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. He submitted no evidence that he relied upon the
incorrect payments to his detriment or that he would experience severe financial hardship
attempting to repay the debt. Consequently, the Office properly denied waiver of the
overpayment.
On appeal appellant contends that the Office incorrectly calculated his expenses and
overestimated his income. The Office, however, relied upon his disclosure of his income and
added his expenses in accordance with the submitted financial documentation. Appellant
submitted evidence in support of his contention that his rental income was significantly less than
specified. The Board’s jurisdiction, however, is limited to a review of final decisions of the
Office and the evidence that was before the Office at the time it issued its final decision.15
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to review
those cases in which the Office seeks recovery from continuing compensation benefits under the
Act.16
12

The Office did not determine whether the listed expenses were “ordinary and necessary.”

13

Appellant submitted evidence that he made monthly mortgage payments to Countrywide of $1,671.49 per
month. Additionally, he paid property taxes of $104.19, homeowner’s policy payments of $270.54 and insurance
payments of $151.80 per month. Appellant made monthly payments of approximately $235.00 to Beneficial
Financial, $27.00 to Lowe’s, $144.00 to GE Money, $113.00 to Military Star, $16.00 to Catherines, $225.89 to
Home Depot, $91.00 to an unnamed credit card, $10.00 to Sears, $126.13 to Texaco, $10.00 to Chevron and $10.00
to Exxon. He also paid $400.00 monthly to the Internal Revenue Service for back taxes. Appellant paid monthly
$61.40 for water, $59.94 for waste removal, $171.75 for sewer, $224.93 for electricity, $172.51 for telephone,
$124.39 for cellular telephone and $89.68 for cable and internet. He further paid approximately $721.63 per month
for medical expenses for himself and his dependents, $138.25 for pool cleaning and $35.00 for lawn services, for a
total of $5,253.59.
14

Desiderio Martinez, 55 ECAB 336 (2004).

15

20 C.F.R. § 501.2(c).

16

See Desiderio Martinez, supra note 14.

6

CONCLUSION
The Board finds that appellant received an overpayment of $52,034.91. The Board
further finds that the Office properly denied wavier of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2007 is affirmed.
Issued: December 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 21-0422
Issued: March 16, 2022

Case Submitted on the Record

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

On January 28, 2021 appellant filed a timely appeal from a December 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 By that decision, OWCP
denied his traumatic injury claim (Form CA-1) that he sustained COVID-19 on March 10, 2020
causally related to the accepted employment exposure. The Clerk of the Appellate Boards assigned
Docket No. 21-0422 to appellant’s appeal.2
On August 30, 2021, the Director of OWCP filed a motion to remand with the Clerk of the
Appellate Boards. The Director noted that OWCP has conceded that appellant is a covered
1

The Board notes that, following the December 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

The Board notes that OWCP subsequently issued a March 22, 2021 decision, which vacated the December 16,
2020 merit decision. However, appellant had already filed the current appeal to the Board on January 28, 2021. OWCP
may not simultaneously have jurisdiction over the same issue. Consequently, the March 22, 2021 decision is set aside
as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket No. 18-1730 (issued July 23, 2019); M.C., Docket
No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

employee under the American Rescue Plan Act of 2021 (ARPA) and that he is entitled to
appropriate benefits under FECA. The Director requested that the December 16, 2020 decision be
set aside. The Director further advised that, upon remand, OWCP wou ld reissue its decision on
appellant’s entitlement to FECA benefits for exposure to COVID-19 while in the performance of
her federal duties, and authorize the payment of appropriate benefits as claimed.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion
to remand. No reply was received.
The Board, having duly considered this matter, grants the Director’s motion. On remand
OWCP shall reissue its decision on appellant’s entitlement to FECA benefits for exposure to
COVID-19 while in the performance of his federal duties, and authorize the payment of
appropriate FECA benefits as claimed by appellant.
IT IS HEREBY ORDERED THAT the motion to remand is granted. The decision of
OWCP dated December 16, 2020 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

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

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

2


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

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

Docket No. 17-1948
Issued: September 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from a May 25, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on March 16, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its May 25, 2017 decision. The
Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 14, 2017 appellant, then a 55-year-old motor vehicle operator and shop steward,
filed a traumatic injury claim (Form CA-1) alleging that he sustained work-related physical injuries
to his cheek, jaw, ribs, head, and left ear on March 16, 2017. He alleged that he was assaulted by
R.C., an employee, while talking to him about his grievances. Appellant stated that it was unclear
why R.C. assaulted him.
In a March 16, 2017 medical report, Dr. James Alexander, a Board-certified family
practitioner Board-certified in occupational medicine, noted that appellant, a shop steward, had an
altercation at work about two hours ago where he was struck by a fist in left jaw, left side of head,
and left lateral chest wall. He diagnosed contusion of scalp, unspecified injury of other part of
head, contusion of left ear, contusion of face and neck except eyes, and contusion of chest wall.
In a March 23, 2017 duty status report, Form CA-17, Dr. Alexander released appellant from
medical care to full-time work.
In a March 20, 2017 note, Sheila D. Robinotte, LPC, a mental health therapist, indicated
that appellant was undergoing individual therapy for anxiety and depressive thoughts related to
adjustment issues regarding a recent assault.
In an April 24, 2017 development letter, OWCP advised appellant of the deficiencies in his
claim. It requested that he submit additional factual and medical evidence in support of his claim
for a March 16, 2017 work injury. It provided him a questionnaire form containing questions to
be answered about his claimed injury. OWCP afforded appellant 30 days to submit the necessary
evidence.
By letter dated April 24, 2017, OWCP also requested that the employing establishment
provide further information regarding the alleged assault.
A March 20, 2017 investigative memorandum by G.N., a postal inspector, summarized
March 16, 2017 interviews regarding the physical altercation which took place at approximately
12:08 p.m. between appellant and R.C., both motor vehicle operators. He indicated that both
appellant and R.C. were placed in an emergency off duty/without pay status effective March 16,
2017 as a result of the physical altercation. They were also evaluated for treatment of their injuries.
Copies of the March 16, 2017 interviews were provided.
In his interview, appellant indicated that he was a shop steward and had to speak to R.C.
regarding a grievance he had filed. He indicated that R.C. sat down in a chair and that he was
standing and had started to read a text on his telephone from a union representative when R.C.
knocked the telephone out of his hand. As appellant bent over to pick up the telephone, R.C. hit
him on the left side of his face with a closed fist. They then wrestled each other to the ground and
he yelled for help.
In his interview, R.C. stated that two to three weeks prior, management started to change
routes and that he went to appellant, who was his union representative, to question the changes.
He indicated that appellant stated, “If you don’t like it, you can quit” and that a verbal exchange
followed. Shortly after that, appellant drove by R.C. near the docks, released his air brakes, and

2

yelled out the window that he would do what “Pringles should have done and kick his ass.” R.C.
stated that appellant drove off, turned around and came back when he was talking to a coworker
and yelled at him again. He did not report the incidents, but wrote down a couple of sentences
about the incidents which he shared with L.E, another union steward. R.C. stated that, after he
clocked in on March 16, 2017, appellant told him he needed to talk to him. Appellant then placed
a cell phone in his face and appellant made a physical move towards him. R.C. alleged that the
next thing he knew, they were rolling around on the floor until somebody came into the room and
broke up the confrontation.
D.H., a witness and coworker, indicated that he heard hollering and he then walked into
the room where R.C. was on his back on the ground pulling appellant towards him. Appellant’s
telephone was on the floor next to them. The left side of appellant’s face had been struck. D.H.
stated that he was able to separate appellant and R.C. When R.C. stood up he stated that appellant
had attacked him. Appellant replied, “No, you knocked my phone out of my hand and hit me.”
M.M., the supervisor, stated that he witnessed appellant and R.C. standing apart after the
incident and that both men stated that the other had initiated the attack. He recalled that appellant
had asked him seven minutes earlier to use one of the offices to conduct union business. M.M.
denied the request, but told appellant to ask another supervisor, B.W., if he could use the
conference room.
Appellant’s description of the incident in an undated threat assessment date entry template
indicated that he was reviewing a grievance issue with R.C. when R.C. knocked the telephone out
of his hand. When he went to pick up his telephone, he was “cold-cocked” by R.C. to his lower
jaw. R.C. then fell and continued to swing and kick until he was able to get on top of him in an
attempt to restrain him. Appellant then called for assistance and another employee came in. He
also called for Supervisor M.M. to come to the room.
In a May 17, 2017 statement, G.L., the transportation/networks manager, stated that
appellant was a union steward and R.C. was a constituent of the union. She stated that she was
aware of disagreements between the two prior to the March 16, 2017 physical altercation, because
R.C. was less than happy with union representation on cases he brought to their attention.
However, G.L. did not believe it to be directed solely toward appellant.
In a March 21, 2017 statement, appellant stated that he had asked R.C. if they could meet
to discuss the status of a letter of warning. As he was reading a text message to him from his cell
phone, R.C. got up from his chair and knocked his cell phone out of his hand, causing it to fall to
the floor. As appellant bent down to retrieve the cell phone, R.C. hit him on the left side of his
face with a closed fist. At that point, they ended up on the floor, with him on top of R.C. As
appellant was trying to restrain him, R.C. hit him three or four more times once on the left side of
his head and ear and kicked him in the ribs. He stated that the whole time, he was shouting to a
passerby to get Supervisor M.M. At that point another driver came into the room and separated
them. Then Supervisor M.M. appeared in the office. He went out to the hallway and told
Supervisor M.M. that R.C. had assaulted him. R.C. came out of the office and told
Supervisor M.M. that he was the one who threw the first punch. Appellant told R.C. that he was
lying as it was R.C. who threw the first punch.

3

Also received were a March 27, 2017 letter scheduling a predisciplinary interview, an
April 4, 2017 summons addressed to appellant pertaining to a charge for assault and battery, a
March 23, 2017 medical report from Dr. Alexander, and an April 18, 2017 return to duty medical
certification.
By decision dated May 25, 2017, OWCP denied appellant’s claim that he sustained a workrelated injury on March 16, 2017 as it did not occur in the performance of duty, as alleged. It
found that there was a personal relationship between appellant and the employee and that the
March 16, 2017 physical altercation was imported into the workplace from complaints of a
personal nature and, thus, was not covered under FECA.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
The phrase sustained while in the performance of duty is regarded as the equivalent of the
coverage formula commonly found in workers’ compensation laws, namely, arising out of and in
the course of employment.5 In the course of employment relates to the elements of time, place,
and work activity.6 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in his or her master’s business, at a place when
he or she may reasonably be expected to be in connection with his or her employment, and while
he or she was reasonably fulfilling the duties of the employment, or engaged in doing something
incidental thereto. As to the phrase in the course of employment, the Board has accepted the
general rule of workers’ compensation law that, as to employees having fixed hours and places of
work, injuries occurring on the premises of the employing establishment, while the employees are
going to and from work, before or after work hours or at lunch time, are compensable.7
Assaults arise out of the employment either if the risk of assault is increased because of the
nature or setting of the work or if the reason for the assault was a quarrel having its origin in the

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

This construction makes the statute effective in those situations generally recognized as properly within the scope
of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
6

D.L., 58 ECAB 667 (2007).

7

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

4

work. Assaults for private reasons do not arise out of the employment unless, by facilitating an
assault that would not otherwise be made, the employment becomes a contributing factor.8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment.9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment.10
The Board has recognized an exception to this general rule when employees performing
representational functions, which entitle them to official time, are injured when in the performance
of duty.11 The underlying rationale for this exception is that an activity undertaken by an employee
in the capacity of a union official may simultaneously serve the interest of the employer.12
OWCP’s procedures indicate that representational functions include authorized activities
undertaken by employees on behalf of other employees pursuant to such employees’ right to
representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.13
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a claim for injuries sustained on March 16, 2017 when he was involved in
a physical altercation at work with another employee. At the time of the physical altercation,
appellant claimed he was reviewing grievance issues with the employee in his capacity as a shop
steward/union representative. As discussed, time, place, and manner are not alone sufficient to
establish entitlement to compensation. Appellant must also establish that his injury arose out of
his employment or that a factor of his employment gave rise to the physical altercation.14

8

S.S., Docket No. 13-0318 (issued March 26, 2013).

9

Jimmy E. Norred, 36 ECAB 726 (1985).

10

C.M., Docket No. 10-0753 (issued December 15, 2010).

11

See R.F., Docket No. 14-0770 (issued September 29, 2015).

12

Marie Boylan, 45 ECAB 338, 342-43 (1994).

13

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

14

See B.T., Docket No. 15-0786 (issued June 10, 2015).

5

OWCP procedures discuss union representational functions and official time.15 There are
specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. This includes Postal
Service employees who are ‘on the clock’ while performing representational
activities under the National Agreement.16
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to his evidence.... [OWCP]
will accept the ruling of the [employing establishment] as to whether a
representative was entitled to official time unless the ruling is later overturned by a
duly authorized appellate body.”17
OWCP found that appellant had not established that his alleged injury occurred in the
performance of duty as there was a personal relationship between appellant and the employee and
that March 16, 2017 physical altercation was imported into the workplace from complaints of a
personal nature. It thus concluded that appellant’s alleged injury was not compensable under
FECA.18 The evidence of record does not substantiate the physical altercation was imported into
the workplace, but rather that the evidence suggests that it occurred during a discussion of a union
grievance. OWCP, however, never clarified with the employing establishment, pursuant to its
procedures, whether appellant was performing a representational function as a union steward at
the time of the assault. It should have sought evidence from the employing establishment as to
whether appellant was performing representational functions that would bring the alleged
altercation within the performance of duty. The procedures noted above provide specific
guidelines as to what constitutes representational functions and official time. If the employing
establishment found that appellant was not performing representational functions, appellant should
have been advised of the finding and provided an opportunity to submit relevant evidence on the

15

Supra note 13.

16

Id.

17

Id.

18

Supra note 1.

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issue. Failing the submission of such evidence, the employing establishment’s position that
appellant was not in a representational capacity would determine the outcome of that issue.19
Accordingly, on remand OWCP shall obtain further evidence to clarify if appellant was
performing a representational function as a union steward at the time of the assault. After such
further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: September 13, 2018
Washington, DC

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

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

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

19

See R.F., Docket No. 12-1816 (issued May 21, 2013).

7