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

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

Docket No. 07-1084
Issued: September 11, 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 March 19, 2007 appellant filed an appeal of a December 19, 2006 decision of the
Office of Workers’ Compensation Programs denying his request for a merit review. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. As the
most recent merit decision of record was a November 30, 2005 decision denying his
occupational disease claim, more than one year old, the Board lacks jurisdiction to review the
merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review.
FACTUAL HISTORY
On February 13, 2003 appellant, then a 42-year-old modified distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that he sustained chronic left knee pain from
prolonged standing and heavy pulling and pushing on or before that day. He noted that he

sustained a May 1991 occupational left knee injury.1
February 14, 2003.

Appellant stopped work on

In a February 20, 2003 note, Dr. Alexander M. Kmicikewycz, an attending Boardcertified internist, stated that appellant was disabled for work from February 14 to March 31,
2004 due to a work-related left knee injury.
In a March 11, 2003 letter, the employing establishment controverted the claim, asserting
that appellant’s modified clerk position did not require prolonged standing or heavy pushing or
pulling. A job analysis of appellant’s position showed work limitations of pushing and pulling
up to 20 pounds and occasional standing.
In a March 27, 2003 letter, the Office advised appellant of the type of additional evidence
needed to establish his claim. The Office emphasized the importance of submitting factual
evidence corroborating that his job involved heavy pushing and pulling and prolonged standing.
In an April 3, 2003 letter, appellant asserted that heavy pushing and prolonged standing at
work permanently aggravated his 1991 left knee injury. He submitted additional evidence.2
Appellant submitted 1992 and 1994 medical records related to the 1991 left knee injury.
A July 16, 2002 magnetic resonance imaging (MRI) scan of the left knee showed mild, early
degenerative changes.
In an April 4, 2003 letter, Dr. Kmicikewycz related appellant’s account of “prolonged
standing, repetitive activity and pushing and pulling heavy mail” containers at work. He noted
that appellant underwent left knee arthroscopy approximately 10 years before due to a May 21,
1991 occupational left knee injury. Dr. Kmicikewycz reviewed 1991 and 2002 imaging studies
showing possible degenerative changes. He diagnosed internal derangement of the left knee with
possible chondromalacia. Dr. Kmicikewycz stated that there was a “causal connection …
between [appellant’s] original work injury and the current aggravation of his prior injury. The
pushing and pulling of heavy mail and prolonged standing attribute directly to [appellant’s]
chronic knee pain.” Dr. Kmicikewycz released appellant to return to work as of May 1, 2003
with restrictions.
By decision dated June 12, 2003, the Office denied appellant’s claim on the grounds that
fact of injury was not established. The Office found that appellant did not establish that he
performed prolonged standing, heavy pushing or pulling in the performance of duty.

1

The claim presently before the Board for a left knee condition sustained on or before February 13, 2003 was
assigned File No. 102019812. The May 29, 1991 left knee injury was assigned File No. A10-404218. The 1991
claim is not before the Board on the present appeal. Appellant began work as a modified distribution clerk in
June 1995 due to restrictions related to the 1991 left knee injury.
2

Appellant also submitted March and April 2003 physical therapy notes signed only by a physical therapist. The
reports of a physical therapist do not constitute competent medical evidence, as a physical therapist is not a
physician as defined by section 8101(2) of the Act. 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357 (2000).

2

In a June 28, 2003 letter, appellant requested reconsideration. He asserted that he
sustained a left knee condition as he was forced to work outside of his prescribed restrictions.
Appellant submitted additional evidence.
In an April 28, 1994 letter, the Office accepted that appellant sustained an internal
derangement of the left knee on May 29, 1991.
A March 23, 1998 fitness-for-duty examination report indicates that appellant qualified
for a distribution clerk position requiring lifting up to 70 pounds and carrying over 45 pounds.
An October 2000 employing establishment duty roster indicates that appellant was
assigned to work Monday through Friday from October 14 to November 24, 2000. Appellant
also submitted a January 11 to February 14, 2003 lock box callers list.
In an April 7, 2003 statement, an employing establishment supervisor stated that
appellant did not appear physically or mentally disabled.
In a March 9, 2004 report, Dr. Kmicikewycz diagnosed chronic internal derangement of
the left knee with thinning of the medial compartment articular cartilage.
Appellant also submitted medical records, correspondence and grievance forms regarding
a June 23, 2003 workplace incident in which he alleged that he sustained a musculoskeletal strain
due to stress regarding his work schedule. These documents do not address the claimed left knee
condition or the identified work factors.
By decision dated November 30, 2005, the Office found that the evidence submitted was
insufficient to warrant modification of the prior decision. The Office found that the additional
evidence did not establish that appellant performed prolonged standing, heavy pushing or pulling
in the performance of duty as alleged.
In a letter dated November 25, 2006 and postmarked November 27, 2006, appellant
requested reconsideration. He submitted additional evidence.
A November 29, 2005 internet job search form indicates that appellant’s skills did not
match any listed positions.
In a December 7, 2005 report, Dr. Kmicikewycz reiterated his review of 1999 and 2002
left knee imaging studies. He diagnosed internal derangement of the left knee with chronic pain
and possible arthritic bursitis, attributable to appellant having two weekdays off as opposed to
Saturdays and Sundays. Dr. Kmicikewycz also discussed conditions unrelated to appellant’s left
knee.
By decision dated December 19, 2006, the Office denied appellant’s request for
reconsideration on the grounds that his November 25, 2006 request neither raised substantive
legal questions nor included new and relevant evidence.

3

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.4 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
In support of his request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.7 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant claimed that he sustained a left knee condition due to heavy pushing and
pulling and prolonged standing at work. The employing establishment contended that appellant
did not perform these tasks and submitted a job analysis detailing his work limitations. The
Office denied appellant’s occupational disease claim by decision dated June 12, 2003, finding
that he failed to establish that the identified work factors occurred as alleged. Following
reconsideration, the Office affirmed this denial by decision dated November 30, 2005, finding
that appellant submitted insufficient evidence to establish that he performed heavy pushing and
pulling and prolonged standing. Appellant then requested reconsideration by a November 25,
2006 letter. He submitted a December 7, 2005 report from Dr. Kmicikewycz, an attending
Board-certified internist and a November 29, 2005 job search form.
The critical issue at the time of the last merit decision in the case was whether appellant
established that the identified work factors of heavy pushing and pulling and prolonged standing
occurred as alleged. To be relevant, the evidence submitted in support of the November 25,
2006 request for reconsideration must address that issue. Appellant’s letter is insufficient to
corroborate his allegations. Dr. Kmicikewycz’s December 7, 2005 report and the job search
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2) (2003).

5

20 C.F.R. § 10.608(b) (2003).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

4

form do not corroborate that appellant performed heavy pushing and pulling or prolonged
standing in the performance of duty. Therefore, these documents are irrelevant to the claim. The
Board has held that the submission of evidence which does not address the particular issue
involved does not comprise a basis for reopening a case.9
Appellant has not established that the Office improperly refused to reopen his claim for a
review of the merits under section 8128(a) of the Act, because he did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2006 is affirmed.
Issued: September 11, 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

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tuscaloosa, AL, Employer
__________________________________________

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

Docket No. 13-1108
Issued: September 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 4, 2013 appellant filed a timely appeal of the March 22, 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$1,140.30 overpayment of compensation for the period January 30 to February 9, 2013; and
(2) whether OWCP properly determined that appellant was at fault in creating the overpayment
of compensation, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 8, 2002 appellant, then a 42-year-old part-time flexible clerk, injured his right
shoulder and elbow when he was replacing a belt on a delivery bar code sorter. OWCP accepted
his claim for right rotator cuff tear and traumatic arthritis of the right shoulder. It authorized
arthroscopic surgery on the right shoulder which was performed on July 31, 2002. Appellant
stopped work on July 10, 2002 and returned to full-time light duty on October 24, 2002 and
worked intermittently thereafter.
In an October 31, 2012 telephone log, appellant advised that he underwent right shoulder
surgery on October 29, 2012 which was authorized by OWCP. The claims examiner instructed
appellant to file a Form CA-7, claim for compensation, for any periods of disability due to the
surgery. In a telephone log dated November 26, 2012, appellant notified OWCP that his period
of disability began on October 26, 2012. On November 29, 2012 the employing establishment
confirmed the date disability began was October 26, 2012 and that appellant’s pay at that time
was $53,102.00.
In a letter dated December 3, 2012, OWCP outlined appellant’s entitlement to
compensation benefits and his responsibility to return to work in connection with the injury
accepted by OWCP. Appellant was placed on the periodic compensation rolls. In an attached
EN1049 form OWCP provided:
“OVERPAYMENTS. To minimize the possibility of an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. If you receive your compensation payments via paper check,
the payment shows the period for which payment is made. If you have worked
for any portion of this period, return the payment to this office, even if you have
already advised OWCP that you are working. For payments sent by electronic
funds transfer (EFT), a notification of the date and amount of payment appears on
the statement from your financial institution. You are expected to monitor your
EFT deposits carefully, at least every two weeks. If you have worked for any
portion of the period for which a deposit was made, advise OWCP immediately so
that the overpayment can be collected.”
In a telephone log dated January 31, 2013, the employing establishment advised that
appellant returned to full-time light-duty work on January 30, 2013. In a Personnel Action
Request -- LWOP OWCP Return to Duty form, the employing establishment noted that appellant
returned to work on January 30, 2013. In a compensation termination sheet dated February 6,
2013, OWCP noted that appellant returned to work on January 30, 2013. It noted that for the
period January 30 to February 9, 2013 appellant was paid compensation in the amount of
$1,140.30.
In a telephone log dated February 6, 2013, OWCP noted receipt of the January 30, 2013
return to work document, verified appellant’s pay rate and noted that appellant returned to work
without any loss of pay.

2

The employing establishment submitted an offer of modified limited-duty assignment
dated January 30, 2013 for a modified mail processing clerk position effective January 30, 2013.
It noted that the position was full time, 8:00 a.m. to 4:30 p.m., with a salary of $53,633.00. On
January 30, 2013 appellant accepted the position and returned to work. In a Report of
Termination of Disability and/or Payment dated January 30, 2013, OWCP noted that he stopped
work on October 26, 2012 and returned to work in a limited-duty job on January 30, 2013. It
noted that appellant must be removed from the periodic rolls. In a February 6, 2013
compensation termination sheet, OWCP noted that for 11 days from January 30 to February 9,
2013, he received gross compensation of $1,279.92 and, after deducting amounts for health
benefits and life insurance, net compensation of $1,140.30.
The record indicates that, on February 9, 2013, OWCP issued appellant a net payment of
$2,902.57 for wage-loss compensation from January 13 to February 9, 2013.
In an February 11, 2013 letter, OWCP informed appellant that it made a preliminary
determination of $1,140.30 overpayment of compensation from January 30 to February 9, 2013
because he received compensation benefits for temporary total disability from January 30 to
February 9, 2013 after he returned to work full time on January 30, 2013. It explained that he
was paid $1,140.30 in compensation from January 30 to February 9, 2013,2 but was entitled to no
compensation. OWCP found that appellant was at fault in creating the overpayment because he
accepted payment that he knew or reasonably should have known to be incorrect. It informed
him that he had the right to submit evidence or argument if he disagreed with its finding. OWCP
also informed appellant that he had a right to a prerecoupment hearing before an OWCP hearing
representative. It instructed him to complete an enclosed overpayment recovery form and submit
supporting documentation. No additional information was submitted.
In a decision dated March 22, 2013, OWCP found that appellant received a $1,140.30
overpayment of compensation from January 30 to February 9, 2013 for which he was at fault in
creating. It advised that the overpayment occurred because he returned to work full time, eight
hours per day, on January 30, 2013 and continued to receive compensation for total disability
until February 9, 2013. OWCP found that appellant was at fault in creating the overpayment
because he reasonably should have been aware that he was not entitled to compensation benefits
for total disability while working full time. It stated that he should forward a check for the full
amount of $1,140.30 per month.
LEGAL PRECEDENT -- ISSUE 1
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.3
2

OWCP calculated this amount by taking the net compensation paid from January 13 to February 9, 2013,
$2,902.57, dividing this by the 28 calendar days that are in a compensation period, which equals $103.66 a day, and
multiplying this by the 11 days for which he received compensation while he also worked, which yielded $1,140.30.
3

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).

3

ANALYSIS -- ISSUE 1
The record indicates that appellant returned to work full time, eight hours per day, at the
employing establishment on January 30, 2013. He continued to receive wage-loss compensation
for total disability through February 9, 2013. As noted above, appellant is not entitled to receive
compensation for total disability after he has returned to work. Thus, an overpayment occurred.
Since the evidence indicated that appellant returned to full-time work without wage loss
on January 30, 2013, he was not entitled to total disability compensation after that date. The
record shows that OWCP calculated that, from January 30 to February 9, 2013, appellant
received $1,140.30 in total net disability compensation but was not entitled to any compensation
during this period. OWCP explained how the overpayment occurred and provided this to
appellant with the preliminary notice of overpayment. There is no evidence that the
overpayment did not occur as found by OWCP. The Board finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $1,140.30
for the period January 30 to February 9, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”4 No waiver of an overpayment is possible if
the claimant is at fault in creating the overpayment.5
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.6
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.7

4

5 U.S.C. § 8129(b).

5

Gregg B. Manston, 45 ECAB 344 (1994).

6

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116 (1999).

7

Id. at § 10.433(b).

4

Section 10.430(a) of OWCP’s regulations advise that OWCP includes on each periodic
check a clear indication of the period for which payment is being made. A form is sent to the
recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment.8
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. For OWCP to establish that appellant was with fault in creating the overpayment
of compensation, OWCP must establish that, at the time appellant accepted the compensation
checks in question, he knew or should have known the payments were incorrect.9
As noted, OWCP erroneously issued wage-loss compensation for total disability for the
period January 30 to February 9, 2013 while appellant was not entitled to disability
compensation for this period. However, even if the overpayment resulted from negligence on the
part of OWCP, this does not excuse the employee from accepting payment to which he or she
knew or should have known that he or she was not entitled.10 On December 3, 2012 OWCP
advised appellant: “OVERPAYMENT. To minimize the possibility of an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK.
If you receive your compensation payments via paper check, the payment shows the period for
which payment is made. If you have worked for any portion of this period, return the payment to
this office, even if you have already advised OWCP that you are working.”
Appellant did not respond to the preliminary overpayment determination issued on
February 11, 2013. The Board notes that he received the December 3, 2012 cautionary notices
from OWCP shortly before the check in question was issued. Additionally, OWCP includes on
each periodic check a clear indication of the period for which payment is being made. By doing
this, it puts the recipient on notice that a payment was made and the amount of the payment.11
All of this evidence establishes that appellant should have been aware that, when he accepted the
compensation for the period in question, he was not entitled to receive wage-loss compensation
for total disability for a period when he worked.
For these reasons, OWCP properly found that appellant accepted wage-loss
compensation from January 30 to February 9, 2013 which he knew or should have known was
incorrect. As appellant was at fault under the third fault standard, outlined above, recovery of
the $1,140.30 overpayment of compensation may not be waived.12
8

J.R., Docket No. 08-1107 (issued June 15, 2009). 20 C.F.R. § 10.430.

9

See Claude T. Green, 42 ECAB 174, 278 (1990).

10

See Russell E. Wageneck, 46 ECAB 653 (1995).

11

See J.R., supra note 8.

12

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004).

5

On appeal, appellant asserts that the amount of the overpayment was incorrect as he was
not scheduled to work on one day that was included in the period of the overpayment calculation.
This assertion is without merit as the record reflects that appellant was on the periodic
compensation rolls at the time in question. Periodic rolls compensation payments are made on a
calendar day basis for which OWCP procedures provide that the claimant receives pay for every
day of the week during the period of disability, at the rate of one-seventh of the weekly
compensation rate for each day.13 Appellant further noted that although he accepted an obvious
overpayment he had no choice as he had past due bills. He further asserted that he did
everything possible to prevent the overpayment including informing his assigned nurse who
indicated that she would inform OWCP that he returned to work. However, as noted above, even
though the overpayment may have resulted from negligence on the part of OWCP, this does not
excuse the employee from accepting payment to which he or she knew or should have known
that he or she was not entitled.14 While appellant returned to work he did not return the
compensation as OWCP had previously instructed. The evidence supports that he knew or
should have known that he accepted an incorrect amount.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from
January 30 to February 9, 2013 and that he was at fault in creating the overpayment.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.8(b)
(February 2013).
14

See Russell E. Wageneck, supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


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

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

Docket No. 15-1590
Issued: October 19, 2015

Case Submitted on the Record

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
JAMES A. HAYNES, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On May 1, 2015 appellant filed a timely appeal from an April 1, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request
for subpoenas; and (2) whether appellant met his burden of proof to establish an emotional
condition in the performance of duty causally related to factors of his federal employment.
FACTUAL HISTORY
On November 5, 2013 appellant, then a 57-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that events at work from September 24 to October 29, 2013
1

5 U.S.C. §§ 8101-8193.

caused an anxiety disorder. He stated that he was first aware of the condition on April 3, 2004
and its relationship to employment on September 24, 2013. Appellant stopped work on
October 28, 2013.
In an attached statement, appellant described a history beginning in 2004 when OWCP
accepted a claim for anxiety disorder.2 He related that on May 3, 2013 he was relieved of duty at
the employing establishment’s McDonough, Georgia location and he initially filed a recurrence
claim under the 2004 injury. Appellant was advised to file a new claim for the incident on
May 3, 2013.3
Appellant stated that his anxiety started to heighten when he returned to work following
May 3, 2013 when he was relieved of duty at the McDonough, Georgia location. He related that
when he returned to work at the employing establishment’s Hampton location on September 24,
2013 he found that his money box was missing about $25.00 in cash and stamps. Appellant
indicated that he left the box there in July 2012 when he was detailed to the McDonough
location. He stated that a supervisor refunded $12.00 and he had received some money and
stamps from others, but that he was not made whole regarding the missing cash and stamps.
Appellant indicated that he believed the postmaster, R.S., and his supervisor, S.C., were
attempting to aggravate his illness by not refunding the total amount. He related that he had an
anxiety attack at work on October 21, 2013 because he had not been fully compensated for the
missing stamps and money. Appellant further alleged that stress was caused on October 23,
2013 when he found out his schedule had been changed so that he would not work on Saturday,
October 26, 2013, and that R.S. told him to take the matter up with S.C. He asserted that this
was the second time the postmaster ignored his issues, and this strengthened his belief that she
was retaliating against him. Appellant continued that he was told the schedule would be changed
by a supervisor M.B., but that on October 24, 2013 S.C. indicated that appellant would remain
off the schedule on October 26, 2013. He stated that he then asked for a grievance form and was
forced to take more medication for anxiety. Appellant reported that he stopped work on
October 28, 2013 and, based on his doctor’s recommendation, did not return. He asserted that
management failed to accommodate him, stating that he could work five days, but not in a row.
On September 23, 2013 David W. Aycock, Ph.D., a licensed psychologist, advised that
appellant could return to work, beginning three or four days a week and should be given ample
time to relearn job skills in a low stress environment. On October 29, 2013 Dr. Aycock advised
that appellant had a serious relapse due to reported mistreatment at work on October 23 and 24,
2013 such that he could not return to work. He submitted psychotherapy notes dated May 7 to
November 5, 2013 describing appellant’s symptoms.

2

The 2004 claim, accepted for anxiety disorder, was adjudicated by OWCP under file number xxxxx966. In that
case OWCP found one compensable factor of employment, that an employing establishment supervisor did not
adhere to proper grievance procedures.
3

In a decision dated September 14, 2015, the Board affirmed a March 27, 2015 OWCP decision that denied
appellant’s claim that he established an emotional condition of May 3, 2013. Docket No. 15-1221 (issued
September 14, 2015). The May 3, 2013 claim was adjudicated by OWCP under file number xxxxxx842. The
instant claim was adjudicated under file number xxxxxx079.

2

In a November 5, 2013 report, Dr. Aycock advised that he began treating appellant
in 2004. He explained that appellant had minor relapses over the years and a major relapse on
May 3, 2013, as serious as his initial injury. Dr. Aycock stated that, after five months of weekly
therapy sessions, appellant was fit to return to a limited workweek, and instructed that he was not
to work more than three or four days a week. He noted appellant’s report of issues concerning
missing money and stamps and maintained that management made little attempt to make
appellant whole, noting this had a serious effect on his ability to improve. Dr. Aycock also
related that management asked appellant to adjust his schedule which allowed him to work five
days a week, but no more than four days in a row and he preferred working Monday through
Thursday, Friday off, working Saturday, and Sunday off.4 He reported that when management
changed appellant’s schedule and would not let him work on Saturday, October 26, 2013 the
postmaster also refused to discuss the matter with him. Dr. Aycock stated that this upset
appellant because carriers junior to him were accommodated. He advised that these factors
demonstrated a clear pattern of mistreatment that caused a recurrence of the 2004 employment
injury. Dr. Aycock noted that appellant’s symptoms were virtually identical to those he
experienced nine years before. His diagnoses of appellant included serious anxiety disorder and
depression. Dr. Aycock concluded that appellant was currently totally disabled due to the
anxiety disorder that he sustained at work.
On October 28, 2013 appellant filed a grievance, stating that he was entitled to work on
October 26, 2013. He requested a telephone step 1 meeting. In a hand-written annotation, he
indicated that, as of November 2013, he had no response from management regarding the
grievance. Appellant also submitted evidence regarding the two prior claims.
In letters dated December 18, 2013, OWCP informed appellant of the additional evidence
needed to support his claim. The employing establishment was asked to respond to his
allegations, to provide information regarding the cash box, and to state whether it made
accommodations to reduce his stress.
In a January 7, 2014 report, Dr. Aycock again described appellant’s report regarding the
cash box, his work schedule, and not being provided requested pay information. He opined that
these matters showed a pattern of the same retaliatory treatment by management that caused
appellant’s disability in 2004. Dr. Aycock diagnosed a severe anxiety disorder that debilitated
appellant to the degree that he could no longer work without fear of retaliation by management.
He noted that the diagnosed anxiety disorder was initially caused by actions at the employing
establishment in 2004 and that appellant was only able to return to work in 2006, after several
years of psychotherapy. Dr. Aycock continued that negative actions by management triggered a
relapse of his entire symptom complex and again disabled him from all work. He also submitted
treatment notes dated November 14, 2013 through January 14, 2014 in which he described
appellant’s symptoms and concerns.
On January 9, 2014 the postmaster, R.S. responded that appellant was responsible for his
cash box. She maintained that when he left on detail he should have taken it with him, that it
was not a part of office accountability, and that there were no guidelines for handling it.
4

It appears from the record that appellant followed this schedule for less than two weeks.

3

R.S. stated that she was on a detail when appellant left and, upon her return, she found the box in
the supervisor’s office and was told that appellant left it there and gave permission for
supervisors to use it. She related that, when appellant returned to the Hampton location, he told
her that stamps and money were missing from the box, and she told all employees involved that
the money and stamps had to be returned to him. R.S. stated that she verified that the box was
returned to where he stated it should be. She explained that, when appellant first returned to
work in September 2013, he was a lobby helper for three to four days a week, and after doing
this for several weeks, he felt he could case his route. After about two weeks of casing and
window work, appellant indicated that he could run his route, and he did this for a few days, then
stopped work, and did not return. R.S. stated that, when he wanted to work a particular
Saturday, it would cause issues with other carriers’ schedules.
In a January 15, 2014 statement, appellant advised that he had filed an Equal
Employment Opportunity (EEO) complaint on December 28, 2014 regarding the handling of his
stamp box and his schedule change. He maintained that the change in schedule was against
postal policy. Appellant related that, when he left on a detail in July 2012, he forgot his stamp
box, and that, when he returned a month later, he left it in S.C.’s care with the provision that it
could be used, but that he would be totally reimbursed when he returned. He indicated that he
had only been reimbursed $22.00 and six stamps. Appellant also related that he attempted to get
pay information from R.S. upon his return to work on September 23, 2013 but she denied his
request. He described his symptoms and indicated that he continued to be disabled.5
By decision dated May 16, 2014, OWCP found that appellant established no
compensable factors of employment and denied his claim.
Appellant timely requested an oral hearing before an OWCP hearing representative. The
appeal request form informed him that “depending on your geographical location, the issue
involved in your case, the number of hearing requests in your area, and at the discretion of the
hearing representative, we may expedite your appeal by providing you a telephone hearing or
videoconference.” Appellant was asked to indicate if he preferred a telephone hearing. He did
not note a preference for a telephone hearing.
In an informational letter dated June 12, 2014, OWCP informed appellant of the
procedures for a hearing. The letter stated that, should he wish to subpoena witnesses, he must
file his request within 60 days, specify the witnesses and documents to be produced, provide
addresses for the witnesses, along with the location of the documents to be produced. The
correspondence continued that the subpoena request should also “clearly explain why the
testimony or evidence is directly relevant to the issues to be addressed at the hearing and why the
subpoena is the best and only method to obtain such evidence.” On July 28, 2014 appellant
requested subpoenas for three postal workers, whose addresses were at the Hampton, Georgia,
employing establishment. He did not provide an explanation as to why the subpoenas were
needed.6
5

Appellant also submitted additional correspondence regarding the May 3, 2013 claim. Supra note 3.

6

In a separate letter appellant requested a copy of his OWCP record, which was provided to him on
August 28, 2014.

4

On December 3, 2014 OWCP informed appellant that an informal hearing would be held
on January 13, 2015. The notice stated that, pursuant to section 10.615 of OWCP regulations,
“Given [appellant’s] geographical location, the issue involved in your case, and the number of
hearing requests in your area, it has been determined that your oral hearing will be conducted by
telephone.” The notice listed a hearing date and time, a toll free telephone number to call, and a
pass code to enter. It continued, “if you have a disability (a substantially limiting physical or
mental impairment), please contact our office/claims examiner for information about the kinds of
help available, such as communication assistance (alternate formats or sign language
interpretation), accommodations and modifications.” The letter stated that, once a hearing was
scheduled, it could not be postponed unless the hearing representative could reschedule the
hearing on the same docket, except if the claimant was hospitalized for a reason that was not
elective, or if a death of the claimant’s spouse, parent, or child prevented his attendance at the
hearing. The correspondence concluded that if one of the conditions described above was not
met, no further opportunity for a telephone hearing would be provided, and the hearing would
take the form of a review of the written record.
In a letter dated December 9, 2014, appellant responded that he declined the “informal
interview” and requested an oral interview, as he had previously requested. He reiterated his
request for subpoenas for three postal employees. Appellant again did not provide an
explanation of why the subpoenas were needed.
On January 6, 2015 an OWCP hearing representative cited section 10.619 of OWCP
regulations and denied appellant’s request for subpoenas because he had not explained why the
testimony of those he cited was necessary. The hearing representative found that their testimony
could be obtained through written affidavits or statements. She advised that appellant could not
appeal this decision prior to the formal decision following the hearing.
In a January 13, 2015 hearing transcript, an OWCP hearing representative noted that
appellant’s hearing was being held by telephone and that he was accompanied by Dr. Aycock.
The hearing representative declined a request to continue the hearing. She stated that appellant
wanted a face-to-face hearing, and it was explained that this could not be done, and he could
only be offered a telephone hearing. The hearing representative also explained why he was
denied his subpoena requests. She concluded that Dr. Aycock felt that appellant was unable to
continue with a telephone hearing, and it was discontinued. The hearing representative stated
that she would contact her branch chief to ascertain alternatives. Appellant was provided a copy
of the hearing transcript on January 23, 2015 and was asked to submit comments.
On January 28, 2015 OWCP informed appellant that his hearing could not be rescheduled
because there was no legal basis for a postponement and, instead, a review of the written record
would be conducted. Appellant was allotted 15 days to submit additional evidence.
In a February 19, 2015 response, appellant asserted that he had properly requested an oral
hearing, not a telephone hearing, and that he had properly requested subpoenas. He maintained
that he was not told that he must provide a reason for requesting subpoenas. Appellant stated
that he thought the January 13, 2015 informal hearing was to discuss issues regarding his official
oral hearing, to be held later. He enclosed several pages of a November 1, 2005 OWCP
decision, in which a hearing representative found one compensable factor of employment. That

5

decision remanded the case to OWCP for referral of appellant for a medical evaluation.7 He also
attached e-mails concerning an October 28, 2013 grievance as well as employing establishment
policies.
In a February 17, 2015 report, Dr. Aycock noted that when appellant was told at the
hearing that he would not be allowed to participate in a face-to-face hearing in which he could
produce witnesses, his entire anxiety complex became more apparent, and he was unable to
participate in the telephone hearing. He noted that, after the hearing, it took appellant several
days to return to normal functioning.
By decision dated April 1, 2015, an OWCP hearing representative detailed the law
regarding hearing and subpoena requests noting why subpoenas were denied and why the format
of the hearing was changed. She affirmed the May 16, 2014 decision, finding that appellant
failed to establish a compensable factor of employment.
LEGAL PRECEDENT -- ISSUE 1
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under the subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.8 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other documents.
Subpoenas are issued for documents only if they are relevant and cannot be obtained by other
means and for witnesses only where oral testimony is the best way to ascertain the facts.9 In
requesting a subpoena, a claimant must explain why the testimony is relevant to the issues in the
case and why a subpoena is the best method or opportunity to obtain such evidence and show
that there is no other means by which the testimony could have been obtained.10
ANALYSIS -- ISSUE 1
The Board finds that the hearing representative did not abuse her discretion in denying
appellant’s subpoena requests.
Contrary to appellant’s assertions, the June 12, 2014
informational letter from OWCP clearly notified him that he must “clearly explain why the
testimony or evidence is directly relevant to the issues to be addressed at the hearing and why the
subpoena is the best and only method to obtain such evidence.” In his response to OWCP letter,
appellant merely provided the names and addresses of the employees he wished to subpoena. He
did not explain why a subpoena was the best and only method to obtain evidence. On
December 9, 2014 appellant repeated his request for subpoenas, but he again provided no reasons
for the request.
7

The decision was regarding file number xxxxxx966, accepted for anxiety disorder. Supra note 2.

8

5 U.S.C. § 8126(1).

9

20 C.F.R. § 10.619; see R.H., Docket No. 15-0137 (issued July 17, 2015).

10

Id.

6

Thus, appellant did not establish why a subpoena was the best method to obtain the
evidence in question and why there was no other means by which the testimony could be
obtained. As noted above, the decision to grant or deny such a request is within the discretion of
the hearing representative.11
An abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deduction from established facts.12 The Board finds that the hearing representative did
not abuse her discretion in denying appellant’s request for subpoenas.
Regarding OWCP’s January 28, 2015 letter informing appellant that his hearing could
not be rescheduled, section 10.616(b) of OWCP regulations provide that the decision to grant or
deny a change of format from a hearing to a review of the written record is not reviewable.13
Therefore, this issue is not properly before the Board and is not considered.
LEGAL PRECEDENT -- ISSUE 2
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.14 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.15 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.16
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,17 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.18 When an employee experiences emotional stress in carrying out his or
11

Id.

12

L.S., (G.S.), Docket No. 14-1046 (issued September 23, 2014); see Claudio Vazquez, 52 ECAB 496 (2001).

13

20 C.F.R. § 10.616(b).

14

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

15

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

16

Id.

17

28 ECAB 125 (1976).

18

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

7

her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.19 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.20 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.21 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.22
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.23 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.24
ANALYSIS -- ISSUE 2
The Board finds that appellant did not establish an employment-related emotional
condition in the performance of duty because he did not establish a compensable factor of
employment.
Appellant alleged that when he returned to work at the Hampton location of the
employing establishment in September 2013, $25.00 and a book and a half of stamps were
missing from a cash box that he left there when he was detailed to the McDonough location in
July 2012. He maintained that he was not fully reimbursed upon his return. The Board notes
that it has not been shown that maintaining a cash box was a regular job duty under Cutler.25
RS., the postmaster, indicated that there were no postal guidelines for handling a cash box, and it
was not a part of office accountability. She maintained that appellant should have taken it when
he went on detail. R.S. also indicated that she had informed postal employees to reimburse
appellant. Moreover, the record does not support that the absence of cash or stamps would be
compensable. By his own admission, appellant left the cash box at the Hampton location in
July 2012. Even though he related that he returned to the Hampton location a month after his
detail at McDonough began and left the box in S.C.’s care, there is nothing in the record to
19

Supra note 17.

20

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

21

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

22

Roger Williams, 52 ECAB 468 (2001).

23

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

24

Kim Nguyen, 53 ECAB 127 (2001).

25

Supra note 17.

8

substantiate what was in the box when he left. A claimant must establish a factual basis for his
or her allegations with probative and reliable evidence.26 Appellant admitted that he had been
reimbursed at least $22.00 and six stamps. He also submitted nothing to support his contention
that by not reimbursing him fully, R.S. and S.C. were attempting to aggravate his condition.27
This incident, therefore, is not a compensable factor of employment.
Appellant also alleged that his schedule was improperly changed such that he was off the
work schedule on Saturday, October 26, 2013. He related that M.B. told him that this schedule
would be changed, but that S.C. indicated that it would not. Although appellant alleged that he
could only work four days in a row, Dr. Aycock merely noted on September 23, 2013 that
appellant could return to work and begin three or four days a week. Dr. Aycock also related on
November 5, 2013 that management asked him to adjust his schedule which allowed him to work
five days a week, but no more than four days in a row, and he preferred working Monday
through Thursday, Friday off, work Saturday and Sunday off. There is no evidence to support
this contention. R.S. explained on January 9, 2014 that, when appellant first returned to work, he
was a lobby helper for three to four days a week, and after doing this for several weeks, he felt he
could case his route to help him learn it again. After about two weeks of casing and window
work appellant indicated that he could run his route, and he did this for a few days, then stopped
work and did not return. R.S. advised that, when appellant wanted to work a particular Saturday,
it would cause issues on the floor and with other carrier’s schedules.
The assignment of a work schedule or tour of duty is an administrative function of the
employing establishment and, absent any error or abuse, does not constitute a compensable
factor of employment.28 Here, appellant submitted insufficient evidence to demonstrate error
and abuse in this matter.
Regarding appellant’s assertion that R.S. denied his request for pay information, again
there is no evidence of error or abuse. Appellant did not delineate the specific evidence
requested. Generally, complaints about the manner in which a supervisor performs his or her
duties or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside
the scope of coverage provided by FECA. This principle recognizes that a supervisor or
manager in general must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error or abuse.29 Here again, as the record contains
no evidence that R.S., S.C., or any employing establishment supervisor or manager committed
error or abuse in discharging management duties, this allegation is not compensable.30

26

Id.

27

See discussion infra.

28

Peggy R. Lee, 46 ECAB 527 (1995).

29

Id.

30

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

9

Regarding appellant’s general contention that he was subjected to harassment,
particularly by R.S. and S.C., mere perceptions of harassment or discrimination are not
compensable under FECA,31 and unsubstantiated allegations of harassment or discrimination are
not determinative of whether such harassment or discrimination occurred. A claimant must
establish a factual basis for his allegations with probative and reliable evidence.32 Although
appellant indicated that he filed a grievance and EEO complaint regarding his cash box and
schedule change, the record does not contain a final decision regarding these matters. He
submitted nothing to show a persistent disturbance, torment, or persecution, i.e., mistreatment by
employing establishment management.33 Appellant, therefore, did not establish a factual basis
for his claim of harassment relying upon probative and reliable evidence.34
Lastly, as appellant failed to establish a compensable employment factor, the Board need
not address the medical evidence of record.35
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 OWCP did not abuse its discretion in denying appellant’s request
for subpoenas. The Board further finds that he did not meet his burden of proof to establish that
he sustained an employment-related emotional condition in the performance of duty causally
related to factors of his federal employment.

31

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

32

Id.

33

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

34

See Robert Breeden, 57 ECAB 622 (2006).

35

Katherine A. Berg, 54 ECAB 262 (2002).

10

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2015
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1451
Issued: February 19, 2013

Case Submitted on the Record

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

JURISDICTION
On June 27, 2012 appellant, through her attorney, filed a timely appeal from a January 3,
2012 Office of Workers’ Compensation Programs’ (OWCP) decision which affirmed an OWCP
decision finding that the constructed position of hospital admitting clerk represented her
wage-earning capacity. 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 met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of hospital admitting clerk
represented her wage-earning capacity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 7, 1994 appellant, then a 37-year-old letter carrier, injured her lower back
when she lifted a flat tub at work. OWCP accepted the claim for lumbosacral sprain/strain and
paid appropriate compensation. Appellant stopped work on March 7, 1994 and returned to a
limited-duty position on May 23, 1994. She stopped working again on August 30, 1994 due to a
recurrence of disability. Appellant was treated by Dr. Ira C. Sachs, an osteopath, on
September 20, 1994 for back pain and he noted that an electromyogram (EMG) revealed chronic
bilateral L4, L5 and S1 radiculopathy. Dr. Sachs advised that a magnetic resonance imaging
(MRI) scan revealed slight posterior disc bulge at L4-5.
On September 18, 1995 the employing establishment offered appellant a full-time
position as a modified letter carrier. The position was in compliance with the medical
restrictions set forth by her treating physician. Appellant accepted the position and began
working on September 18, 1995.
By decision dated July 16, 1996, OWCP indicated that appellant had been employed as a
full-time modified letter carrier effective September 18, 1995, which was over 60 days, and that
the pay in that position was equivalent to the pay rate for the position she held at the time of her
injury; thus, no loss of wages occurred. It concluded that the position of full-time modified letter
carrier fairly and reasonably represented her wage-earning capacity. Thereafter, the record
indicates that appellant worked in different jobs for the employing establishment.
On May 14, 2007 the employing establishment offered appellant a full-time modified
letter carrier position. The job complied with the restrictions of her treating physician,
Dr. Nathaniel Abramson, an osteopath, who limited appellant to sedentary work and no lifting
over 10 pounds.
Appellant accepted the job and began working on May 14, 2007.
Dr. Abramson continued to note her status and work restrictions.
On December 31, 2008 appellant filed a notice of recurrence of disability stating that she
stopped work on December 29, 2008 when the employing establishment could no longer provide
work for her within her permanent restrictions. In a January 6, 2009 CA-7a, time analysis form,
the employing establishment noted that her limited-duty hours were withdrawn. On January 16,
2009 OWCP accepted appellant’s claim for a recurrence of disability and began paying her
wage-loss compensation.
On February 17, 2009 OWCP referred appellant to a second opinion physician. In a
report dated March 19, 2009, Dr. Kevin Hanley, a Board-certified orthopedic surgeon, indicated
that he reviewed the records provided to him and examined her. He noted an essentially normal
objective examination with negative straight leg raises, normal reflexes and normal strength with
no evidence of ongoing discogenic problems. Dr. Hanley diagnosed chronic lumbosacral
sprain/strain. He advised that lumbar strain generally resolved but appellant remained
symptomatic. Dr. Hanley indicated that she had residual pain syndrome related to the accepted
condition. In a work capacity evaluation, he noted that appellant could return to work full time
with permanent restrictions of sitting limited to six hours a day, walking and standing limited to
two hours a day and no reaching. Dr. Hanley noted that all of the restrictions were subject to a

2

10-pound pushing, pulling and lifting limit.
medical improvement.

He advised that appellant reached maximum

On January 26, 2010 appellant was referred for vocational rehabilitation. The vocational
rehabilitation counselor recommended a 90-day job placement plan and noted that appellant
could perform work in the light sedentary physical level. Appellant desired to return to work for
the employing establishment in a rehabilitation position. However, the vocational rehabilitation
counselor advised that the employing establishment could not accommodate appellant’s
restrictions. On March 2, 2010 appellant and her vocational rehabilitation counselor prepared a
rehabilitation plan with the objective of obtaining a position of hospital admitting clerk,
appointment clerk and sorter. The vocational rehabilitation counselor noted that appellant had a
high school diploma and credits toward an associate’s degree in office management. A July 27,
2010 vocational testing report determined that appellant was capable of performing a variety of
sedentary jobs. OWCP determined that the position of hospital admitting clerk was within her
work limitations as set forth by Dr. Hanley. The average annual salary for hospital admitting
clerk, DOT #205.362.018, was $655.60 a week. The vocational rehabilitation counselor stated
that the jobs were within appellant’s educational capabilities based on vocational testing services
and were reasonably available in her commuting area. The vocational rehabilitation counselor
attached a job classification for the position.2 In a closure report dated January 18, 2011, the
vocational rehabilitation counselor advised that placement services were offered to appellant, but
appellant did not cooperate or express and motivation to return to work. In a March 31, 2011
memorandum, OWCP advised that appellant received 90 days of placement services but did not
obtain employment.
On March 31, 2011 OWCP proposed to reduce appellant’s compensation, finding that she
was no longer totally disabled. It noted that she was partially disabled and had the capacity to
earn wages as a hospital admitting clerk, DOT #205.362.018, at the rate of $655.60 a week.
OWCP noted that this position was consistent with Dr. Hanley’s restrictions and vocational
testing.
In a June 3, 2011 decision, OWCP reduced appellant’s wage-loss compensation effective
June 5, 2011 to reflect her wage-earning capacity as a hospital admitting clerk.
On July 1, 2011 appellant requested an oral hearing which was held on October 12, 2011.
She submitted a November 14, 2011 report from Dr. Abramson who noted treating her since
2005. Dr. Abramson noted a history of appellant’s work injury of March 1994 and advised the
she reported chronic low back pain that was radicular in nature and exacerbated by prolonged
sitting and standing. He noted that an October 23, 2011 MRI scan of the lumbar spine revealed
mild facet hypertrophy at L4-5 and L5-S1. Dr. Abramson noted findings of thoracic kyphosis
with decreased lumbar lordosis, sacral base unleveling, mild scoliotic curve and tenderness over
L1-5. He noted that the neurological examination revealed deep tendon reflexes were somewhat
diminished in all extremities while muscle strength was normal. Appellant had limited range of
motion of the lumbar spine with positive straight leg raises bilaterally. Dr. Abramson diagnosed
2

The job classification for hospital admitting clerk advised that the position was sedentary in nature with
occasional lifting up to 10 pounds.

3

chronic severe low back pain with bilateral lower extremity radiculopathy which impaired her
ability to lift more than five pounds or prolonged sitting and standing over 10 minutes.
In a decision dated January 3, 2012, OWCP’s hearing representative affirmed the June 3,
2011 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3
Section 8115(a) of FECA,4 titled “Determination of Wage-Earning Capacity” states in
pertinent part: “In determining compensation for partial disability, the wage-earning capacity of
an employee is determined by his or her actual earnings if his or her actual earnings fairly and
reasonably represent his or her wage-earning capacity.” Generally, wages actually earned are the
best measure of a wage-earning capacity and in the absence of evidence showing they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.5 If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regards to the nature of his or her injury, his or her degree of physical
impairment, his or her usual employment, his or her age, his or her qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his or her wage-earning capacity in his or her disabled condition.6 Wage-earning
capacity is a measure of the employee’s ability to earn wages in the open labor market under
normal employment conditions.7 The job selected for determining wage-earning capacity must
be a job reasonably available in the general labor market in the commuting area in which the
employee lives.8 In determining an employee’s wage-earning capacity, OWCP may not select a
makeshift or odd lot position or one not reasonably available on the open labor market.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regards to his or her physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
3

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

4

5 U.S.C. § 8115.

5

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

Id.

9

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

4

and availability in the open labor market should be made through contact with the state
employment service or other applicable service.10 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.11
ANALYSIS
OWCP accepted the claim for a lumbosacral sprain.12 It developed the medical evidence
and referred appellant to a second opinion physician to determine whether she had residuals of
her accepted condition and whether she was totally disabled from work. Consequently, OWCP
properly referred her to Dr. Hanley.
In a March 19, 2009 report, Dr. Hanley indicated that he reviewed the entire case record
and statement of accepted facts. He examined appellant thoroughly and related his clinical
findings. Dr. Hanley diagnosed chronic lumbosacral sprain/strain. He noted an essentially
normal objective examination with negative straight leg raises, normal reflexes and normal
strength with no evidence of ongoing discogenic problems. Dr. Hanley advised that lumbar
appellant’s strain generally resolved but she remained symptomatic. He indicated that she had
residual pain syndrome related to the accepted condition. In a work capacity evaluation,
Dr. Hanley noted that appellant could return to work full time with permanent restrictions of
sitting limited to six hours a day, walking and standing limited to two hours a day and no
reaching. He noted that all of the restrictions were subject to a 10-pound pushing, pulling and
lifting limit. Dr. Hanley did not make any finding that appellant remained totally disabled or
unable to do any work due to residuals of her accepted conditions.
Thereafter, OWCP referred appellant for vocational rehabilitation counseling. The
vocational rehabilitation counselor advised that appellant had a high school diploma with college
credits toward an associate’s degree in office management and could perform light sedentary
work. When appellant was unable to secure employment as part of her vocational rehabilitation,
the vocational counselor on March 2, 2010, identified several positions, including the position of
the position of a hospital admitting clerk, as jobs that appellant would be capable of performing
and which was available in her area.13 The vocational rehabilitation counselor identified the
position in the Department of Labor’s Dictionary of Occupational Titles, DOT #205.362.018,
10

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

11

Id. See Shadrick 5 ECAB 376 (1953).

12

As noted, infra, OWCP reduced appellant’s compensation to zero on July 16, 1996, OWCP based on her actual
earnings as a full-time modified letter carrier. On January 16, 2009 it accepted that she sustained a recurrence of
total disability and began paying her wage-loss compensation for total disability. The Board notes that, when
OWCP accepted the recurrence of total disability on January 16, 2009, it effectively modified the July 16, 1996 loss
of wage-earning capacity determination. See E.E., Docket No. 10-1063 (December 3, 2010).
13

Where vocational rehabilitation is unsuccessful, the vocational rehabilitation counselor will prepare a final
report, which lists two or three jobs which are medically and vocationally suitable for the employee and proceed
with information from a labor market survey to determine the availability and wage rate of the position. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter
2.814.8(b) (December 1995); see also Dorothy Jett, 52 ECAB 246 (2001).

5

and provided the required information concerning the position description, the availability of the
position within appellant’s commuting area and pay ranges within the geographical area, as
confirmed by state officials. She determined that the hospital admitting clerk was in accord with
appellant’s background, education and experience. The vocational rehabilitation counselor
advised that an updated labor market survey revealed that the job market was favorable for a
hospital admitting clerk and that the position was readily available in sufficient numbers both full
and part time in appellant’s commuting area. She advised that the job market remained
favorable, but that appellant did not find employment because she did not cooperate or express
and motivation to return to work. The average weekly wage of a hospital admitting clerk, DOT
#205.362.018, was $655.60 a week with hiring occurring regularly.
The vocational
rehabilitation counselor further noted that the position was consistent with the medical
restrictions provided by Dr. Hanley and appellant’s vocational testing. The Board finds that the
duties of a hospital admitting clerk are consistent with the restrictions set forth by Dr. Hanley.
At the time that OWCP reduced appellant’s compensation, there was no current medical
evidence to indicate that appellant was unable to perform the duties of a hospital admitting clerk.
Thereafter, appellant submitted a November 14, 2011 report from Dr. Abramson who
diagnosed chronic severe low back pain with bilateral lower extremity radiculopathy which
impaired appellant’s ability to lift more than five pounds or prolonged sitting and standing over
10 minutes. Dr. Abramson noted that appellant’s chronic low back pain was exacerbated by
prolonged sitting and standing. However, he did not provide sufficient medical rationale14
explaining how any of appellant’s injury-related conditions would disable appellant from a
position of a hospital admitting clerk. Dr. Abramson did not specifically address appellant’s
ability to perform the duties of a hospital admitting clerk or explain any change in appellant’s
injury-related condition that would render appellant unable to perform the position of a hospital
admitting clerk. Therefore, this report is of limited probative value.
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
based on her ability to earn wages as a hospital admitting clerk. The medical evidence
establishes that appellant is capable of performing the duties required for the selected position of
hospital admitting clerk and the vocational evidence establishes that the position is reasonably
available and that it is within her vocational abilities. OWCP considered the proper factors, such
as availability of suitable employment and her physical limitations, usual employment and age
and employment qualifications, in determining that the position of hospital admitting clerk
represented her wage-earning capacity. The weight of the evidence of record establishes that
appellant had the requisite physical ability, skill and experience to perform the position of
hospital admitting clerk and that such a position was reasonably available within the general
labor market of her commuting area. OWCP properly determined that the position of hospital
admitting clerk reflected her wage-earning capacity and properly reduced her compensation
effective June 3, 2011.
On appeal, appellant asserts that OWCP’s reduction of compensation was erroneous and
that OWCP did not consider her driving restriction in determining her wage-earning capacity.
14

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

6

As explained, the weight of the evidence establishes that she was able to perform the hospital
admitting clerk position. Appellant has also not offered medical evidence explaining why she
has any driving limitations that would preclude her from performing the selected position and
why appropriate public transportation would not be available.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that the position of hospital admitting
clerk reflects appellant’s wage-earning capacity effective June 5, 2011.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 3, 2012 is affirmed.
Issued: February 19, 2013
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Holland, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-552
Issued: June 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 20, 2006 appellant filed a timely appeal from a December 1, 2006
nonmerit decision of the Office of Workers’ Compensation Programs that denied her request for
further merit review of her claim. Because more than one year has elapsed between the Office’s
most recent merit decision, January 31, 2005, and the filing of this appeal, the Board lacks
jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. The
only decision properly before the Board is the Office’s December 1, 2006 decision denying
appellant’s request for further merit review of her claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a November 15, 2005
decision, the Board affirmed the January 13, 2005 decision of the Office, finding that appellant
had not met her burden of proof in establishing that she sustained an emotional condition in the
performance of duty. The Board found that appellant had not established any compensable
factors of employment. The facts and the history contained in the prior appeal are incorporated
by reference.
By letter dated November 4, 2006, appellant requested reconsideration and enclosed
additional evidence. She alleged that she recovered from her on-the-job injury on March 26,
2004 and requested that she be returned to her position which she held at the time of her injury, a
rural carrier. Appellant alleged that instead, she was placed in a bid clerk position on
April 17, 2004. She alleged that she was harassed by the craft clerk employees on a daily basis,
since she was given the rehabilitation job offer in September 2000. Appellant further alleged
that she was harassed by the craft clerk employees because she was in their craft and not
returning to her rural craft. She also alleged that she took a detail in the Grand Rapids office
away from the clerk craft employees to escape the harassment. Appellant alleged that on June 4,
2004 she was called by a temporary supervisor, Dave Wentworth, who called her at home and
told her that she was to return to the bid position of distribution clerk, that she had lost all
grievances and that she would never return to the rural carrier position again. She alleged that
she was also advised that if she “said anything hostile about not returning to my rural craft he
would have me fired.” Appellant alleged that she returned to work in the distribution clerk
position with grievances still in place and was subjected to screaming from the other clerks
related to her schedule and vacation time. She noted that when she returned to the clerk position
she continued to be harassed and that she was so upset that her supervisor, Malcolm Miller,
allowed her to go home on July 24, 2004. Appellant thereafter went to her physician, who
referred her to a psychologist. She also alleged that stress affected her other conditions including
her diabetes and kidney problems. Appellant enclosed a January 4, 2005 statement from Cheryl
Boeskoal, a coworker, which was previously submitted, who alleged that she saw
Mr. Wentworth cross out information regarding appellant’s pay status. She also enclosed a copy
of a previously received document dated December 28, 2004 from Tammy Haines, a rural
carrier, who alleged that her route was made into an auxiliary route so that appellant could not
“come back as a rural carrier.”
In a report dated September 13, 2006, Dr. Nelson Zwaanstra, a psychologist, noted
appellant’s history of injury and treatment. He diagnosed adjustment disorder with mixed
anxiety and depression mood and noted that appellant had diabetes and a prior neck injury.
Dr. Zwaanstra opined that he released appellant to go back to work on January 4, 2006. He
noted that he could “see no reason why she could not perform her duties as a rural carrier.”
The Office also received a December 1, 2005 letter of separation from the employing
establishment and a copy of a July 28, 2004 report from Dr. James Bleicher, Board-certified in
internal medicine, which was previously of record.
1

Docket No. 05-1000 (issued November 15, 2005).

2

The Office also received an October 4, 2004 statement from Beth Bekins, a neighbor,
who indicated that on June 4, 2004 she came over to see how appellant’s garage sale was going
when she overheard appellant speaking on the telephone. Ms. Bekins noted that the conversation
was not pleasant. She indicated that, when she asked appellant what happened, she advised her
that she was “fired.”
By decision dated December 1, 2006, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulation, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant disagreed with the denial of her claim for an emotional condition and requested
reconsideration on November 4, 2006. The underlying issue on reconsideration was whether
appellant established a compensable factor of employment with regard to her claim that she
sustained an emotional condition in the performance of duty. However, appellant did not
provide any relevant or pertinent new evidence to the issue of whether she sustained an
emotional condition in the performance of duty.

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

20 C.F.R. § 10.608(b).

3

In her November 4, 2006 request for reconsideration, appellant essentially reiterated her
previous arguments. As noted above, this involved allegations that she was not allowed to return
to work as a rural carrier and that she was being harassed by clerk craft employees when she
returned to a rehabilitation job offer in September 2000. Appellant also reiterated her previous
allegations that she took a detail position away from the work location and that her condition
improved. She also alleged that she was called at home by a temporary supervisor, advised that
she had lost all her grievances and that she would never return to the rural carrier craft.
Appellant alleged that she was so upset that on July 24, 2004 her supervisor, Mr. Miller, allowed
her to go home. Additionally, she alleged that she was subsequently referred to a psychologist.
Additionally, appellant alleged that the stress had affected her other medical conditions. The
Board notes that she merely reiterated her previous contentions regarding the employing
establishment’s actions which she believed were stressful. Appellant also submitted documents
that were previously of record. Those documents include the statements from Ms. Haines and
Ms. Boeskoal, and a copy of a July 28, 2004 report from Dr. Bleicher, which were previously
received and addressed in the prior decisions. The submission of evidence which repeats or
duplicates evidence that is already in the case record does not constitute a basis for reopening a
case for merit review.5 Appellant did not provide any relevant and pertinent new evidence to
establish that she sustained an emotional condition in the performance of duty.
Appellant also included a letter from the employing establishment related to her
separation, and an October 4, 2004 statement from Ms. Bekins, her neighbor, regarding her
termination by the employing establishment. However, these reports are not relevant as they do
not offer any relevant evidence to support or establish a compensable employment factor.6
Appellant also submitted a September 13, 2006 report from Dr. Zwaanstra. However,
she has not established a compensable factor of employment. Because of this, it is premature to
consider medical evidence addressing causal relationship.7 The Board notes that no employment
factors have been accepted as causing stress or anxiety. The submission of evidence that does
not address the particular issue involved does not constitute a basis for reopening a case.8
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion noted above for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law, or
advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied her request for reconsideration.

5

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).
6

See Sharon K. Watkins, 45 ECAB 290 (1994) (actual termination of employment, by itself, is not covered under
the Act).
7

See Peter D. Butt, Jr., 56 ECAB ___ (Docket No. 04-1255, issued October 13, 2004).

8

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB116 (2000).

4

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2006 is affirmed.
Issued: June 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5