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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-33
Issued: August 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 October 2, 2006 appellant timely appealed the Office of Workers’ Compensation
Programs’ September 14, 2006 merit decision in which an Office hearing representative affirmed
the denial of her claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office abused its discretion by denying appellant’s
request for reimbursement of travel expenses on December 8, 2005; and (2) whether appellant
has met her burden of proof to establish entitlement to eight hours of wage-loss compensation on
December 7, 2005.

1

The record additionally contains Office decisions dated July 24, 2006 regarding a schedule award and a July 14,
2006 loss in wage-earning capacity decision. Since appellant has not appealed those decisions, the Board will not
address those decisions on appeal.

FACTUAL HISTORY
On September 9, 2004 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim for an August 3, 2004 incident whereby she sustained an injury to her left foot when she
rolled her left foot on the curb while stepping into the street. The Office accepted the claim for
left plantar fasciitis and paid her appropriate compensation benefits. On February 23, 2005 the
Office assigned appellant’s case to a rehabilitation field nurse. On April 6, 2005 appellant’s
local attending physician in Paducah, Kentucky, Dr. Burton N. Stodghill, an orthopedic surgeon,
requested a second opinion from a specialist regarding appellant’s condition. On April 22, 2005
the Office’s field nurse authorized appellant’s appointment with Dr. Mark E. Petrik, a Boardcertified orthopedic surgeon, to whom Dr. Stodghill referred appellant. Dr. Petrik was located in
Louisville, Kentucky, approximately 220 miles away from appellant’s residence. On May 24,
2005 he recommended that appellant undergo a plantar fascia release, which the Office
authorized on June 10, 2005. On June 17, 2005 appellant underwent a left plantar fasciotomy,
which Dr. Petrik performed. She returned to modified duties in July 2005.2 Appellant continued
to see Dr. Petrik for follow-up medical care, for which the Office paid wage-loss benefits.3
On December 12, 2005 appellant filed a claim for compensation Form CA-7 for the
period December 7 and 8, 2005, for a total of 16 hours.4 A chart note and a duty status medical
report dated December 8, 2005 were received from Dr. Petrik.
In a letter dated December 16, 2005, the Office notified appellant of the factual and
medical evidence necessary to support her claim for wage-loss compensation. On December 27,
2005 she contacted the Office and explained that both her local attending physician and the field
nurse had referred her to Dr. Petrik who performed the authorized left foot surgery. Appellant
indicated that she saw Dr. Petrik for follow-up medical care and that his office was
approximately 220 miles away, an approximate four-hour drive one way. She stated that her
scheduled medical appointment was December 8, 2005 and explained, because of the travel time
involved it was necessary for her to take off the day before an appointment. The Office
subsequently paid appellant eight hours of compensation for December 8, 2005.
In a January 25, 2006 letter, the Office advised appellant that her distance to travel from
her commuting area in Paducah, Kentucky, to her surgeon’s office in Louisville, Kentucky, over
200 miles away, did not fall within the intent of the regulation at 20 C.F.R. § 10.315. The Office
explained that, generally 25 miles from the place of injury, the work site or the employee’s home
was considered to be a reasonable distance to travel to a physician. In addition, appellant was
advised that wage loss on dates taken off work preceding scheduled appointment dates was not
compensable in the absence of medical evidence certifying disability and/or the attendance of an
2

On July 14, 2006 the Office issued a loss of wage-earning capacity decision, which found that appellant had no
loss of wages in her modified city letter carrier position which was effective August 1, 2005. Appellant has not
appealed this decision. See supra note 1.
3

The record reflects that the Office previously had paid for one and two days of wage-loss compensation.

4

Appellant also claimed a schedule award. On July 24, 2006 the Office awarded her a schedule award for an
18 percent impairment of the left lower extremity. As previously noted, appellant has not appealed this decision.
See supra note 1.

2

injury-related medical appointment on each date claimed. She was allowed 30 days to submit
evidence to support her claim for compensation for December 7, 2005 and to provide additional
evidence regarding her traveling over 200 miles for medical treatment.
In a February 25, 2006 letter, appellant indicated that she had a left ruptured plantar
fascia, which was why she could not be seen locally. She argued that her travel of more than 200
miles each way should be authorized as the Office had authorized Dr. Petrik’s treatment and the
field nurse had agreed with her local physician’s referral to Dr. Petrik.5
By decision dated March 31, 2006, the Office denied appellant’s claim for wage loss on
December 7, 2005 and her request for travel reimbursement on December 8, 2005.6 The Office
denied travel reimbursement for December 8, 2005 on the grounds that evidence sufficient to
establish the lack of adequate specialist closer to appellant’s commuting area was not provided.
It denied wage loss on December 7, 2005, the day preceding the scheduled appointment on
December 8, 2005, due to lack of medical evidence certifying disability and/or attendance of an
appointment for treatment for the work-related condition.
On April 14, 2006 appellant, through her attorney, requested an oral hearing before an
Office hearing representative, which she subsequently changed to a request for a review of the
written record. In a March 28, 2006 letter, she stated that Dr. Stodghill had advised that there
was no local physician who could follow up on Dr. Petrik’s surgery.
In a March 10, 2006 report, Dr. Stodghill stated that appellant was referred to Dr. Petrik,
a foot and ankle surgeon, when she continued to have significant pain and a tear of her plantar
fascia was noted on a magnetic resonance imaging (MRI) scan. He indicated that Dr. Petrik had
performed surgery on appellant and was in charge of her continued care. No other medical
reports were of record.
By decision dated September 14, 2006, the Office hearing representative affirmed the
Office’s March 31, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of the Federal Employees’ Compensation Act provides, in part:
“(a) The United States shall furnish to an employee who is injured while in the
performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.”7

5

The Office responded to appellant’s concerns in a letter dated March 16, 2006.

6

As previously noted, the Office paid eight hours wage-loss compensation for December 8, 2005.

7

5 U.S.C. § 8103.

3

Section 10.315 of Title 20 of the Code of Federal Regulations provides, in relevant part:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, [the
Office] will consider the availability of services, the employee’s condition and the
means of transportation. Generally, 25 miles from the place of injury, the work
site or the employee’s home, is considered a reasonable distance to travel. The
standard form designated for [f]ederal employees to claim travel expenses should
be used to seek reimbursement under this section.”8
As the only limitation on the Office’s authority is reasonableness, 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 deductions from known facts.9 The
Board has long held that, in interpreting relevant sections of the Act, the Office has broad
discretion in approving services provided under the Act.10
ANALYSIS -- ISSUE 1
This is a situation in which the transportation/travel expenses incurred on December 8,
2005 are being made in connection with medical treatment for travel to or from a hospital or
physician’s office.11 Appellant secured medical treatment from Dr. Petrik on December 8, 2005,
for which the Office paid eight hours of wage loss.12 However, the Office denied her claim for a
reimbursement of travel expenses as it found that the distance of over 200 miles from her
residence to her physician’s office was unreasonable.
While the Office authorized medical treatment from Dr. Petrik and previously paid her
expenses incurred in the course of securing medical services or supplies from Dr. Petrik, the
issues of authorization of medical treatment and reimbursement of travel expense for medical
treatment are separate and distinct. The Office may authorize medical treatment but determine
that the travel expense incurred for such authorized treatment was unnecessary or
unreasonable.13

8

20 C.F.R. § 10.315.

9

See Lecil E. Stevens, 49 ECAB 673 (1998).

10

See Wanda L. Campbell, 44 ECAB 633 (1993).

11

5 U.S.C. § 8103. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies,
Chapter 3.400.10 (April 1992).
12

It is noted that, while the Office’s procedural manual provides that no more than four hours of compensation
should be allowed for routine medical appointments, longer periods of time may be allowed when required by the
nature of the medical procedure and/or the need to travel a substantial distance to obtain the medical care. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).
13

See Dr. Mira R. Adams, 48 ECAB 504 (1997).

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As previously noted, Dr. Petrik’s office is over 200 miles away, an approximate fourhour drive one way. The record supports that Dr. Petrik was appellant’s surgeon and he was
needed for follow-up appointments postsurgery. As well, while Dr. Stodghill referred appellant
to Dr. Petrik, which the field nurse had authorized, there is no evidence that Dr. Stodghill had
ever advised that appellant could only be seen by Dr. Petrik. The Office would only be required
to reimburse appellant for travel between her home and medical appointments at a “reasonable
distance” as provided in section 10.315, delineated above. The regulation declares that this
“generally” is considered to be 25 miles from the place of injury, the work site or the employee’s
home.14 The fact that the Office, in its January 25, 2006 letter, requested appellant to submit
evidence supporting the need to seek medical treatment so far away from her residence and that
she may not have provided a satisfactory response does not relieve the Office from making a
finding with explanation as to why the distance was not reasonable.
The Office’s March 31, 2006 decision provides no explanation other than to find that
appellant did not submit “evidence sufficient to establish the lack of adequate specialists closer”
to her commuting area citing the general 25 mile guideline. The Office’s September 14, 2006
decision provides the same reasoning. The regulation, by using both the terms “reasonable
distance” and “generally” provide the Office with broad discretion in considering such travel
reimbursement claims. That same regulation points out that, in considering whether a distance is
reasonable, the Office is to consider factors such as the availability of services and the
employee’s condition. While the Board is not implying that, benefits should be granted in this
travel reimbursement application, the Office has not provided an explanation of the delineated
factors in its decisions which the claimant can understand and which the Board can review. The
Board cannot substitute its exercise of discretion for that of the Office.
The Board finds that the case is not in posture for decision. The Office did not
adequately explain why the distance of travel was not reasonable other than finding that
Dr. Petrik’s office was more than 25 miles from the place of injury.
LEGAL PRECEDENT -- ISSUE 2
Under the Act, the term disability is defined as the incapacity because of an employment
injury to earn the wages the employee was receiving at the time of injury.15 Whether a particular
injury causes an employee to be disabled for work and the duration of that disability are medical
issues which must be proved by the weight of substantial and reliable medical evidence.16
Appellant has the burden of proving that she is disabled for the period claimed as a result
of the employment injury. She has the burden of establishing by the weight of the substantial,
reliable and probative evidence, a causal relationship between her claimed disability for eight
hours of leave without pay (LWOP) on December 7, 2005 and her accepted left plantar
14

20 C.F.R. § 10.315.

15

See Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006); Prince E. Wallace,
52 ECAB 357 (2001).
16

See Carol A. Lyles, 57 ECAB ___ (Docket No. 05-1492, issued December 13, 2005); Fereidoon Kharabi,
52 ECAB 291 (2001).

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fasciitis.17 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.18
Case law makes clear that an employee is entitled to disability compensation for any loss
of wages incurred during the time he or she receives authorized treatment and for loss of wages
for time spent incidental to such treatment. The rationale for this entitlement is that, during such
required examinations and treatment and during the time incidental to undergoing such
treatment, an employee did not receive his or her regular pay.19
ANALYSIS -- ISSUE 2
Appellant submitted a claim for reimbursement of eight hours LWOP on
December 7, 2005. She advised that Dr. Petrik’s office was more than 200 miles away from her
residence and, because of the travel time involved, it was necessary for her to take the day before
a scheduled appointment off.20
The Board notes that the record does not contain evidence that appellant was seen by
Dr. Petrik on December 7, 2005. There also is no medical evidence indicating that appellant was
precluded from making the roundtrip on the actual date of the examination or that she was
otherwise disabled due to her employment injury on December 7, 2005. The Office explained to
her, in its January 25, 2006 letter, that it could not authorize compensation for dates in which
there was no medical evidence certifying disability or attendance to an appointment for treatment
of a work-related condition.
Under the factual circumstances of this claim, the basis for payment of travel expenses
for appellant’s commute to a physician’s office on the day prior to a scheduled medical
appointment is not readily apparent under the Act. As previously noted, there is no evidence to
substantiate that appellant was undergoing medical treatment on December 7, 2005. Rather, she
indicated that she took time off the day before her scheduled medical appointment because of the
travel time involved. However, there is no medical evidence supporting that additional travel
time was needed due to the effects of her employment injury or that a longer period of time
should be allowed due to the nature of the medical examination or that the trip in question was
such a substantial distance that it could not be traveled in one day. Thus, it cannot be said that
appellant’s travel expenses were reasonably incidental to her medical treatment the next day.
The Office, therefore, properly denied wage-loss compensation on December 7, 2005.

17

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Alfredo Rodriguez, 47 ECAB
437 (1996).
18

See Fereidoon Kharabi, supra note 16.

19

Henry Hunt Searles, III, 46 ECAB 192 (1994).

20

As noted, the Office paid appropriate compensation for appellant’s medical visit to Dr. Petrik on
December 8, 2005.

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CONCLUSION
The Board finds that the case is not in posture for decision on whether the Office properly
denied appellant’s request for reimbursement of travel expenses for the December 8, 2006
medical treatment. It further finds that appellant has not met her burden of proof to establish
entitlement to wage loss on December 7, 2005.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2006 decision of the Office of
Workers’ Compensation Programs’ is affirmed in part and set aside in part. The case is
remanded to the Office for further action consistent with this decision.
Issued: August 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, CHATTAHOOCHEE OCONEE
NATIONAL FOREST, Gainesville, GA,
Employer
__________________________________________

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

Docket No. 21-0772
Issued: November 30, 2021

Case Submitted on the Record

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

JURISDICTION
On April 23, 2021 appellant filed a timely appeal from a November 3, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $47,136.84, for which she was without fault, because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset for the period May 1, 2013 to August 15, 2020; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required

1

5 U.S.C. § 8101 et seq.

recovery of the overpayment by deducting $400.00 every 28 days from appellant’s continuing
compensation payments.
FACTUAL HISTORY
On April 20, 2002 appellant, then a 54-year-old accounting technician, filed an
occupational disease claim (Form CA-2) for acute stress disorder resulting from factors of her
federal employment. She stopped work on February 21, 2002. On June 18, 2004 OWCP accepted
acute stress disorder. It paid appellant wage-loss compensation on the supplemental rolls for
disability from work commencing April 8, 2003 and on the supplemental rolls commencing
April 1, 2005.
On July 18, 2020 SSA forwarded a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in
May 2013 appellant’s SSA rate with FERS was $1,372.70 and without FERS was $862.60,
beginning in December 2013 her SSA rate with FERS was $1,393.20 and without FERS was
$875.50; beginning in December 2014 her SSA rate with FERS was $1,416.80 and without FERS
was $890.30; beginning in December 2015 her SSA rate with FERS was $1,416.80 and without
FERS was $890.30; beginning in December 2016 her SSA with FERS was $1,421.00 and without
FERS was $892.90; beginning in December 2017 her SSA with FERS was $1,449.40 and without
FERS was $910.70; beginning in December 2018 her SSA with FERS was $1,489.90 and without
FERS was $936.10; and beginning in December 2019 her SSA with FERS was $1,513.70 and
without FERS was $951.00.
In a September 3, 2020 letter, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were partially
attributable to federal service, her FECA wage-loss compensation would be offset by the portion
of her SSA age-related retirement benefits attributable to her federal service.
In a preliminary determination of even date, OWCP notified appellant that she had received
an overpayment of compensation in the amount of $47,136.84 because her wage-loss
compensation benefits had not been reduced for the period May 1, 2013 through August 15, 2020
by the portion of her SSA benefits that were attributable to her federal service. It calculated the
overpayment amount by determining the difference between her SSA amount with and without
FERS for the stated period and adding this amount to find a total overpayment of $47,136.84.
OWCP further advised appellant of its preliminary determination that she was without fault in the
creation of the overpayment and requested that she complete an overpayment action request form
and an overpayment recovery questionnaire (Form OWCP-20), and submit supporting financial
documentation. Additionally, it notified her that, she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing. OWCP allotted 30 days for
appellant to respond.
On September 26, 2020 appellant requested waiver of recovery of the $47,136.84
overpayment.
By decision dated November 3, 2020, OWCP finalized the preliminary determination that
appellant had received an overpayment of compensation in the amount of $47,136.84 for the period

2

May 1, 2013 through August 15, 2020, for which she was without fault, because her FECA wageloss compensation payments were not offset by the portion of her SSA age-related retirement
benefits attributable to her federal service. It found that she was without fault in the creation of
the overpayment, but denied waiver of recovery because the evidence of record did no t establish
that recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. OWCP required recovery of the overpayment by deducting $400.00 from appellant’s
continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.3 When an overpayment has been made
to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.4
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.5 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit. 6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$47,136.84, for which she was without fault, because she concurrently received FECA wage -loss
compensation and SSA age-related retirement benefits without appropriate offset for the period
May 1, 2013 to August 15, 2020.
In its November 3, 2020 decision, OWCP found that an overpayment of compensation was
created for the period May 1, 2013 to August 15, 2020. The overpayment was based on the
evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a
claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits
2

Id. § 8102(a).

3

Id. at § 8116.

4

Id. at § 8129(a).

5

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

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attributable to federal service for the same period. 7 The information provided by SSA established
that appellant received SSA age-related retirement benefits that were attributable to federal service
beginning May 1, 2013. OWCP, however, neglected to offset her FECA benefits until
August 15, 2020. Accordingly, the Board finds that OWCP properly determined that appellant
received an overpayment of wage-loss compensation for the period May 1, 2013 to
August 15, 2020.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age -related retirement
benefits that were attributable to federal service. The SSA provided appellant’s SSA benefit rates
with FERS and without FERS for the period May 1, 2013 to August 15, 2020. OWCP provided
its calculations of the amount that it should have offset during the relevant period based on the
SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period May 1, 2013 to August 15, 2020 and finds that an overpayment of compensation in the
amount of $47,136.84 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 9
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary. 10
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

7

5 U.S.C. § 8116(d)(2); see W.C., Docket No. 20-1241 (issued February 9, 2021); R.D., Docket No. 19-1598
(issued April 17, 2020); C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).
8

See W.C., id.; M.S., Docket No. 18-0740 (issued February 4, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
9

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
10

20 C.F.R. § 10.438(a); R.G., Docket No. 21-0148 (issued June 7, 2021); M.S., Docket No. 18-0740 (issued
February 4, 2019).

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The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 11 Waiver is only possible if recovery would defeat the
purpose of FECA or be against equity and good conscience.12 Appellant, however, did not provide
the requested financial documentation to OWCP. 13
In its preliminary overpayment determination dated September 3, 2020, OWCP explained
the importance of providing the completed Form OWCP-20 and supporting financial
documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish
the requested financial information within 30 days. On September 26, 2020 appellant submitted
the overpayment action request form. However, no ad ditional evidence was received prior to
OWCP’s November 3, 2020 final overpayment determination. OWCP, therefore, did not have the
necessary financial information to determine whether waiver of recovery of the overpayment
would defeat the purpose of FECA or would be against equity and good conscience within 30 days
of the preliminary overpayment determination. 14 It was, therefore, required to deny waiver of
recovery of the overpayment. 15
For the foregoing reasons, the Board finds that OWCP properly denied waiver of recovery
of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further payments,
the individual shall refund to OWCP the amount of the overpayment as soon as the error is
discovered or his or her attention is called to same. If no refund is made, OWCP shall decrease
later payments of compensation, taking into account the probable extent of future payments, the
rate of compensation, the financial circumstances of the individual and any other relevant facts, so
as to minimize any hardship. 16
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$400.00 from appellant’s continuing compensation payments every 28 days.
11

See M.W., Docket No. 20-1107 (issued March 17, 2021); L.M., Docket No. 19-1197 (issued January 8, 2020);
M.D., Docket No. 19-1500 (issued February 24, 2020); L.D., Docket No. 19-0606 (issued November 21, 2019); R.B.,
Docket No. 15-0808 (issued October 26, 2015).
12

20 C.F.R § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

13

Id. at § 10.438(b); T.J., Docket No. 19-1242 (issued January 13, 2020).

14

See R.G., supra note 10; D.B., Docket No. 20-0592 (issued September 21, 2020); R.M., Docket No. 19-1570
(issued June 1, 2020); E.M., Docket No. 19-0857 (issued December 31, 2019); G.G., Docket No. 19-0684 (issued
December 23, 2019).
15

Supra note 12.

16

20 C.F.R. § 10.441(a). See also L.B., Docket No. 11-2076 (issued August 29, 2012); G.B., Docket No. 11-1568
(issued February 15, 2012).

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OWCP provided a Form OWCP-20 to appellant with the September 3, 2020 preliminary
overpayment determination. Appellant did not complete the Form OWCP-20 or provide any
financial information to support that she was financially unable to repay the debt prior to the final
November 3, 2020 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP. 17 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
designed to collect the debt promptly and in full. 18 The Federal (FECA) Procedure Manual
provides that, in these instances, OWCP should set the rate of repayment at 25 percent of the 28day net compensation amount until the balance of the overpayment is paid in full. 19 Further, the
Board has held that OWCP may properly collect an overpayment from the amount of
compensation owed a claimant through a schedule award. 20 While appellant did not submit the
financial information requested, the record reflects that her continuing 28-day compensation as of
August 16, 2020 was $1,922.76. Therefore, deducting $400.00 every 28 days from her continuing
compensation does not exceed the 25 percent repayment rate. 21
As appellant did not submit the financial documentation to OWCP as requested, the Board
finds that there is no evidence of record to establish that OWCP erred in directing recovery of the
$47,136.84 overpayment at the rate of $400.00 every 28 days from her continuing compensation
payments.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$47,136.84, for which she was without fault, because she concurrently received FECA wage -loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
May 1, 2013 to August 15, 2020. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment and properly required recovery of the overpayment by deducting
$400.00 every 28 days from her continuing compensation payments.

17

Id. at § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

18
See R.G., supra note 10; J.A., Docket No. 19-1946 (issued July 13, 2020); A.S., Docket No. 19-0171 (issued
June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400.3 (September 2018).
19

Id. at Chapter 6.500.8(c)(1) (September 2018).

20

W.L., Docket No. 16-0037 (issued June 23, 2016); M.O., Docket No. 14-1133 (issued September 22, 2014).

21

D.B., supra note 14; E.M., supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1068
Issued: November 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2010 appellant filed a timely appeal from a September 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim and a November 4, 2010 nonmerit decision which denied his request
for an oral hearing. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether OWCP properly denied his request for an oral hearing as
untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 22, 2010 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging that on January 28, 2010 he first became aware of his stress and anxiety.
He stated that since he moved to the employing establishment’s location he was constantly
harassed and his health has worsened. Appellant was fine until his duties were monitored for
time, which put pressure on him. He stated that management gave letter carriers express mails to
deliver before noon and 30 minutes of additional work but still required them to finish by 5:00
p.m. If mail carriers did not return on time, management took action against the carrier which
led to dismissal. When appellant informed management that he could not give them what they
wanted, they harassed, threatened and demeaned him. This treatment caused him high blood
pressure, stress and anxiety.
Appellant also provided specific incidents when he felt harassed, threatened and
demeaned. On October 24, 2009 he reported that the brakes of the long life vehicle (LLV) he
drove did not work. Isaac Matthews, supervisor of customer services, test drove the LLV and
told appellant he found no brake problems. When appellant filled out a vehicle repair tag,
Mr. Matthews would not sign it and shouted at him “Are you crazy?” He felt that his safety was
jeopardized, which caused him stress, nerves and high blood pressure. On November 18, 2009
appellant reported that the LLV had no horn and Mr. Matthews responded “[b]ull shit.” On
January 30, 2010 he informed management that the right front signal light of the LLV did not
work, but Mr. Matthews forced him to drive it.
On January 5, 2010 Mr. Matthews issued a seven-day suspension letter for
“Unsatisfactory Performance and Unprofessional Estimate.” When appellant requested to see his
union steward, management refused his request because the union steward was on vacation. He
continued to work but after 45 minutes his stress levels were so high that he did not feel well.
Appellant told management that he needed to go home because he did not feel well, and they
informed him that if he went home it would be considered an unscheduled absence. On
January 13, 2010 Mr. Matthews told appellant to fill out mis-sorted, mis-sent and mis-sequenced
(3M) case paperwork, but he refused to fill it out because it was not an official U.S. Postal
Service form and he was off the clock. He then followed appellant outside and told him that
whenever he forgot something in the future, he would be written up.
Appellant submitted medical reports from Dr. Ramarao Makkena, a psychiatrist, who
treated him for major depression and anxiety disorder and excused him from work from
February 12 to 15, 2010.
In a February 23, 2010 letter, the employing establishment controverted appellant’s claim
alleging that he did not identify specific employment factors and was merely reacting to
management’s review of his duties. It submitted a description of his position and additional
personnel forms.
In a February 24, 2010 narrative statement, Mr. Matthews refuted appellant’s statements
regarding the various LLV incidents. When appellant reported that the LLV he drove had no
brakes, Mr. Matthews told him he would get a replacement vehicle. When Mr. Matthews arrived
with the replacement vehicle, he drove appellant’s vehicle in the parking lot and it stopped each

2

time. He also drove it back to the employing establishment, which was approximately five miles
away and the brakes worked fine. The next morning, vehicle maintenance was unable to find a
problem with the brakes. Mr. Matthews stated that he never told appellant to drive the vehicle
with no brakes, never shouted that appellant was crazy when approached with a vehicle repair
tag and never responded “[b]ull shit” when appellant reported that the horn did not work.
Regarding the January 30, 2010 incident, he inspected the vehicle and observed that the right
front signal light worked. Mr. Matthews stated that appellant had reported problems with
vehicles in the past, but when vehicle maintenance came to repair the problem, they found
nothing wrong.
Regarding the January 5, 2010 incident, Mr. Matthews explained that he told all
employees that they would not get a shop steward immediately, but one would be provided
within a reasonable amount of time, which was normally within two to three days. He explained
that he never told appellant that the union steward was on vacation and that appellant did not
follow orders that day. Instead, appellant refused to deliver his route unless he talked to a union
steward. Mr. Matthews informed him that, if he did not follow instructions and deliver his route,
he would receive corrective action. Appellant left for approximately 20 minutes, came back and
turned in a form for sick leave.
In a February 22, 2010 statement, H.J. Crandall, the postmaster, stated that appellant was
a city letter carrier whose duties included casing and delivering letters, flats and parcels. He
reported that management expected nothing more or less from appellant than any other carrier
and refuted that appellant was expected to be back to the office on time even when given extra
work. Mr. Crandall explained that appellant was only given additional work when appellant
stated that he would be back in time and volunteered for additional work by signing his name on
the overtime desired list. He also stated that every employee who took an unscheduled absence
from work was noted as an unscheduled absence even if appellant went home in the middle of
the day.
On March 24, 2010 OWCP advised appellant that the evidence submitted was
insufficient to support his claim and addressed the factual and medical evidence needed to
establish his claim.
In a May 20, 2010 narrative statement, appellant explained that he felt his supervisors did
not treat him with dignity and respect and always demeaned him when interacting with him. He
stated that it was not relevant whether someone felt the brakes were adequate because he was the
one who drove the vehicle. Appellant also noted that management’s expectations of the time it
would take to complete his duties were an additional cause of stress. He submitted safety
violation reports, vehicle repair tags requesting for brakes to be repaired, a November 7, 2009
report of hazard or unsafe conditions and various grievance forms.
In a November 18, 2008 affidavit, appellant stated that on May 27, 2008 at 7:30 a.m.
many workers were on the workroom floor waiting to clock in when Karen Rodriguez, a
supervisor, singled him out and harassed him. Ms. Rodriguez told appellant that he was not
allowed in the workroom floor before 7:30 a.m., which caused his anxiety to build up. While
appellant was preparing for his route, she came over to him and started talking to him. Appellant
asked that Ms. Rodriguez please leave him alone so he could calm down, but she ignored his

3

request and continued to talk to him. Aaron Lawson, his manager, also came over and stood next
to his case staring at him. When appellant asked Mr. Lawson to leave, Mr. Lawson responded,
“I [did not] say anything. I [am] just standing here.” Appellant felt that management was
intimidating him, which caused his anxiety to build up, induced chest pain and made him start
shaking.
In a January 22, 2010 dispute resolution decision, a union and U.S. Postal Service
representative reported that the January 5, 2010 seven-day notice of suspension would be
rescinded.
In an April 7, 2010 narrative statement, Michael Pelliccia, appellant’s union steward,
stated that on March 25, 2010 appellant met with his station manager about filling out 3M case
paperwork. Appellant stated that on January 13, 2010 Mr. Matthews harassed and threatened
him, even though he was already off the clock, by ordering him to fill out 3M case paperwork.
He did not fill out the form because it was not an official U.S. Postal Service form, and he was
off the clock. Mr. Matthews followed appellant outside and told him that whenever he forgets
something in the future, he would be written up.
In an April 12, 2010 letter, David Destouche, a retired letter carrier stated that he had
known appellant since he first started as a letter carrier in 1987 and remembered appellant as a
dedicated worker who never complained and had no problems with anyone. In 2008 appellant
told Mr. Destouche that his supervisors were harassing him and he was hospitalized for jobrelated stress. He explained to Mr. Destouche that his supervisors were also disrespectful to him
and would write him up whenever he reported an incident. Appellant’s supervisor also told
appellant to drive an unsafe LLV and gave him a hard time when he refused to drive it.
In an April 27, 2010 e-mail, Steven Montuori, a coworker, stated that he had known
appellant for the past 22 years and noticed in the past two years that appellant called him about
problems at work and feeling stressed out. Appellant’s major complaint was that his supervisors
were constantly on top of him watching everything he did and always found something wrong.
In a May 13, 2010 note, Ibrahm Monteagude, a coworker, stated that on January 13, 2010
he saw and heard Mr. Matthews talk to appellant with a bad attitude. Mr. Matthews also
appeared angry.
In a May 22, 2010 narrative statement, Linda Phillips, supervisor of customer services,
reported that she never used any type of profanity with appellant and only spoke to him about his
performance. She explained that if his return call exceeded the scope of his workload a
supervisor instructed him to take relief to ensure that his assignment was completed on time.
Ms. Phillips also stated that, while she was the manager at the Oak Street Station, she did not
recall appellant complaining about stress and anxiety.
In a July 2, 2010 narrative statement, Karen Rodriguez, the active delivery operations
supervisor, reported that on May 27, 2008 she observed appellant walking behind the city
carrier’s case where the box section was located in the workroom and instructed him that he was
not allowed on the workroom floor if he was not on the clock due to safety and liability issues.
Appellant responded by walking towards the break room, lifting his hands towards her, and

4

making loud and aggressive statements such as: “Just leave me alone;” “Don’t talk to me;” and
“Get lost.” After all the carriers had clocked in and were casing mail, Ms. Rodriguez continued
her supervisory duties by asking each carrier about their leaving and returning time. When she
asked appellant about his leaving and returning time, he became very aggressive towards her by
moving his hands around, pointing them towards her, yelling, and telling her to leave this area.
Ms. Rodriguez stated that all her conversations with him were in a professional way and strictly
work related. She disputed appellant’s statement that she spoke to him after instructing him to
leave the workroom floor; rather, she inquired only as to his leaving and returning times.
Ms. Rodriguez also provided an August 22, 2008 e-mail and August 6, 2010 letter relating
appellant’s allegations and her similar responses.
In an August 5, 2010 narrative statement, Mr. Crandall reported that on the day that
appellant received a seven-day suspension appellant was extremely loud and belligerent,
demanding to see a steward, even though he was told numerous times that a steward was not
available at that time and one would be provided as soon as possible. He explained that
appellant was issued a suspension letter because he regularly missed his return estimate by a
large estimate, sometimes as much as two hours. Regarding the incidents with the LLV vehicle,
Mr. Crandall stated that when management switched vehicle assignments appellant became very,
very angry. Later that day, appellant called the employing establishment and stated that the
brakes were bad. Mr. Matthews obtained another vehicle, took it to him and drove the other
vehicle back to the employing establishment. A certified mechanic checked the brakes the next
morning and reported that nothing was wrong with them. The next week, appellant wrote the
brakes up again and was given an alternative vehicle. A certified mechanic from the vehicle
maintenance facility adjusted the brakes even though he reported nothing was wrong with them.
The next time appellant drove the vehicle, he wrote the brakes up a third time. Mr. Crandall
reported that many other carriers had driven the vehicle during this time frame and reported
nothing wrong with the brakes. He stated that there was no interaction with appellant that went
beyond what normally took place in a city carrier operation.
In a decision dated September 20, 2010, OWCP denied appellant’s claim for an
emotional condition finding that his injury did not arise out of the course of employment. It
determined that his emotional reaction to an administrative or personnel matter was not covered
under FECA and that his employing establishment did not act unreasonably. OWCP further
determined that mere perception of harassment and discrimination was not compensable under
FECA.
In an appeal form dated October 20, 2010 and postmarked October 21, 2010, appellant
requested an oral hearing before OWCP’s hearing representative and submitted an October 20,
2010 narrative statement.
By decision dated November 4, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing as untimely filed. It exercised its discretion and denied his
request finding that the issue in his case could equally well be addressed by requesting
reconsideration from OWCP and submitting evidence not previously considered which
established that he sustained an emotional condition in the performance of duty.

5

LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.2 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular duties or specifically assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.4 On the other
hand, the disability is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his or her frustration from not being permitted to work in a particular
environment or to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specifically
assigned work duties of the employee and are not covered under FECA.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
2

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

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

6

providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.10
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of management
harassing, threatening and demeaning him. In a September 20, 2010 decision, OWCP denied his
emotional condition claim on the grounds that he did not establish any compensable employment
factors. The Board must initially review whether these alleged incidents and conditions of
employment are considered compensable employment factors according to FECA.
The Board notes initially that appellant has not alleged that the actual performance of his
job duties caused his emotional condition, but rather he has alleged that his supervisors’ actions
caused his condition.
Appellant asserted that he was constantly harassed, demeaned and threatened by
management when his duties were watched for time and he informed them that he could not give
them what they wanted within that time frame. He also alleged that he was singled out by a
supervisor to leave the workroom if he had not yet clocked in. Appellant further described
incidents when he reported that his LLV vehicle did not work properly, but management ordered
him to drive it even though he felt unsafe. Lastly, he stated that his manager forced him to fill
out 3M case paperwork even though he was off the clock. The Board notes that harassment or
verbal abuse by a claimant’s supervisor or coworker may constitute a compensable factor of
employment under FECA. In evaluating claims under FECA, the term “harassment” is
synonymous, as generally defined with a persistent disturbance, torment or persecution.11 Mere
perceptions or feelings of harassment do not constitute a compensable factor of employment.12
An employee’s allegation that he or she was harassed or discriminated against is not
determinative of whether or not harassment or discrimination occurred.13 To establish
entitlement to benefits, a claimant must establish a factual basis for the claim by supporting his
or her allegations with probative reliable evidence.14

9

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

10

Id.

11

K.W., 59 ECAB 271 (2007).

12

Lorraine E. Schroeder, 44 ECAB 323 (1992); Joel Parker, Sr., 43 ECAB 220 (1991); G.S., Docket No. 09-764
(issued December 18, 2009).
13

V.W., 58 ECAB 428 (2007); Ronald K. Jablanski, 56 ECAB 616 (2005).

14

David S. Gilreath, 56 ECAB 241 (2005); Ruthie M. Evans, 41 ECAB 416 (1990).

7

The Board finds that the factual evidence of record does not support appellant’s claim of
harassment. Appellant made general assertions that management put pressure on him to finish
on time even when they gave him 30 minutes of additional work and a few express mails. He
explained that management gave letter carriers express mails to deliver before noon and 30
minutes of additional mail, but still required them to finish by 5:00 p.m. The employing
establishment, however, refuted appellant’s assertions. Mr. Crandall stated that appellant was
not expected to be back in the office on time when given extra work and was not singled out for
additional duties. He explained that appellant was only given additional work when he requested
overtime. Ms. Phillips also stated that, if appellant’s return call exceeded the scope of his work
load, he was provided relief to ensure that his assignment was completed on time. The evidence,
therefore, is insufficient to show that appellant was treated disparagingly or unreasonably with
regards to his assertions of harassment. There is no other written evidence to support his
allegations. Appellant in alleging harassment by management in the conduct of supervisory
functions must establish error or abuse.15
Appellant also asserted that on January 13, 2010 he refused to complete 3M case
paperwork because it was not official U.S. Postal Service paperwork and he was off the clock.
Mr. Matthews followed him outside and told him that, whenever he forgot something, he would
be written up. Although Mr. Monteagude confirmed that on January 13, 2010 he witnessed
Mr. Matthews talk to appellant with a bad attitude and appeared angry, the Board has generally
held that being addressed in a raised or harsh voice does not of itself constitute verbal abuse or
harassment.16 There is no further specific information about that incident to establish verbal
abuse. Thus, this evidence does not establish that harassment or discrimination did, in fact,
occur.
Appellant further described a May 27, 2008 incident when Ms. Rodriguez singled him
out in the workroom floor and told him that he was not allowed to be there before signing in. He
further stated that Ms. Rodriguez came over and talked to him while he was preparing for his
route and refused to leave when he asked her to leave him alone. Appellant stated that
Mr. Lawson also came over to observe his work, which caused appellant to feel like management
was intimidating him. The employing establishment, however, denied appellant’s allegations.
Ms. Rodriguez explained that she asked appellant to leave the workroom floor pursuant to
workplace rules about safety and liability. She also stated that, after all the carriers clocked in,
she continued her supervisory duties by asking each carrier about their coming and going times.
When Ms. Rodriguez asked appellant about his return time, he became very aggressive towards
her and yelled at her to leave his area. Mr. Lawson also came over to appellant to try to calm
him down. The Board notes that an employee’s complaints regarding the manner in which a
supervisor performs his duties as a supervisor or the manner in which a supervisor exercises his
supervisory 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
duties; and that employees will at times dislike the actions taken, but that mere disagreement or
dislike of a supervisory or management action will not be actionable, absent evidence of error or
15

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

16

T.G., 58 ECAB 189 (2006); see also L.H., Docket No. 10-2045 (issued July 14, 2011).

8

abuse.17 The Board finds that Ms. Rodriguez did not act erroneously or abusively when asking
appellant to leave the workroom floor and for his leaving and return time.
Appellant described several incidents when the brakes, horn and right front signal light of
his LLV vehicle did not work properly. While he alleges that Mr. Matthews screamed at him,
used profanity and forced him to drive the vehicle without brakes, Mr. Matthews denies these
events. Mr. Matthews stated that he never used profanity, shouted at appellant, nor forced him to
drive the LLV without breaks. He and Mr. Crandall both noted that he drove appellant’s LLV
back to the employing establishment, about five miles and the brakes worked fine. Vehicle
maintenance was also unable to find a problem with the brakes. Mr. Matthews also stated that
when he went to check on the right front signal the light worked properly. Both he and
Mr. Crandall noted that appellant had reported problems with the vehicles in the past but vehicle
maintenance was never able to find anything wrong with the vehicle. The Board finds that
Mr. Matthews did not scream at appellant or use profanity as the record contains conflicting
evidence and there are no other witness statements supporting appellant’s allegations. Thus, the
Board does not find sufficient evidence to establish that appellant’s supervisors engaged in
harassment or other threatening behaviors.
Based on the evidence of record, the Board finds that appellant has not established a
factual basis for his allegations that he was harassed, threatened and demeaned by the employing
establishment. Therefore, appellant has failed to establish a compensable employment factor.
Appellant further alleges that management caused him increased stress and anxiety on
January 5, 2010 when he was erroneously issued a suspension letter for unsatisfactory
performance and not allowed to speak with a union steward. He stated that when he requested to
go home because he did not feel well, management advised him that it would be considered an
unscheduled absence and disciplinary action may be taken. The Board finds that these matters
are administrative functions of the employer as they relate to procedures and requirements of the
employer and disciplinary actions. An administrative or personnel matter will be considered a
compensable employment factor where the evidence reveals error or abuse on the part of the
employing establishment.18 To determine whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.19
In an August 5, 2010 statement, Mr. Crandall explained that appellant was issued a
suspension letter because he was continuously late, an average of two hours late, regarding his
return time. Mr. Matthews also explained that he told all employees that they did not get a union
steward immediately but could speak to one within two to three days. The evidence does not
support that the employing establishment acted unreasonably. Mr. Crandall explained why
appellant was issued a suspension letter and Mr. Matthews explained that it was customary for
all employees to not have access to a union steward immediately. While the disciplinary action
was later rescinded pursuant to a January 22, 2010 dispute joint-resolution decision, the mere
17

See Marguerite J. Toland, 52 ECAB 294 (2001).

18

Karen K. Levene, 54 ECAB 671, 673 (2003); Hasty P. Foreman, 54 ECAB 427 (2003).

19

Richard J. Dube, 42 ECAB 916, 921 (1991); P.S., Docket No. 11-177 (issued August 9, 2011).

9

fact that disciplinary actions taken by the employing establishment were subsequently reduced or
rescinded does not establish that it acted in an abusive manner towards the employee.20
Appellant has not submitted any evidence demonstrating that the employing establishment
committed error or abuse with respect to these matters. Therefore, he has failed to establish a
compensable factor of employment.
On appeal, appellant alleges that his supervisors created a hostile situation where they
contradicted and distorted the facts, harassed and demeaned him and called him crazy. He
further requested that the Board examine the medical evidence, which demonstrated that he was
diagnosed with work performance and occupational stress. The evidence of record, however, is
insufficient to support appellant’s allegations. The only statements appellant provided to support
his claim were an April 12, 2010 letter from Mr. Destouche and an April 27, 2010 e-mail from
Mr. Montuori. The Board notes that neither individual witnessed any of the alleged incidents or
events, but merely related what appellant had told them. The Board finds that appellant has
failed to submit sufficient evidence to establish that his supervisors and management engaged in
harassment as alleged and that the administrative and personnel actions taken by management
were in error. As appellant has not established a compensable factor of employment, the Board
is under no obligation to analyze the medical evidence.21
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation who is not
satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision and before review under section 8128(a), to a hearing on his
claim before a representative of the Secretary.22
OWCP regulations further provide that a claimant can choose between two types of
hearings: an oral hearing or a review of the written record.23 The hearing request must be sent
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.24 The Board has held that section 8124(b)(1) is
unequivocal in setting forth the time limitation for requesting hearings or reviews of the written
record.25 A claimant is entitled to a hearing or review of the written record as a matter of right
only if the request is filed within the requisite 30 days and before the claimant has requested
20

See Linda K. Mitchell, 54 ECAB 748 (2003); S.R., Docket No. 10-2159 (issued July 20, 2011).

21

See Dennis J. Balogh, supra note 9.

22

5 U.S.C. § 8124(b)(1).

23

20 C.F.R. § 10.615.

24

Id. at § 10.616(a).

25

Claudio Vazquez, 52 ECAB 496, 499 (2001).

10

reconsideration.26 However, if the request is not timely filed or when reconsideration has
previously been requested, OWCP must exercise its discretion to grant or deny a request that is
made after this 30-day period.27 In such a case, it will determine whether to grant a discretionary
hearing and, if not, will so advise the claimant with reasons.28
ANALYSIS -- ISSUE 2
On September 20, 2010 OWCP denied appellant’s emotional condition claim.
Appellant’s request for an oral hearing before OWCP’s hearing representative was postmarked
on October 21, 2010. The date of his hearing request is determined by the date of the
postmark.29 As appellant’s October 21, 2010 hearing request was made more than 30 days after
the date of OWCP’s September 20, 2010 decision, he was not entitled to a hearing as a matter of
right.
OWCP, however, has the discretionary authority to grant a hearing if the request was not
timely filed. In its November 4, 2010 decision, it considered the issue involved and properly
exercised its discretion when it denied appellant’s hearing request and determined that he could
equally well address his emotional condition claim by requesting reconsideration and submitting
new evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness. 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.30 In the present case, OWCP did not abuse its discretion in
denying a discretionary hearing and properly denied appellant’s request for an oral hearing under
section 8124 of FECA.31
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty. The Board also finds that OWCP properly denied
appellant’s request for an oral hearing as untimely.

26

Martha A. McConnell, 50 ECAB 129, 130 (1998).

27

See also Herbert C. Holley, 33 ECAB 140 (1981); G.W., Docket No. 10-782 (issued April 23, 2010).

28

Id.; see also Rudolph Bermann, 26 ECAB 354 (1975).

29

20 C.F.R. § 10.616(a); N.M., 59 ECAB 511 (2008).

30

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

31

See Herbert Jones, Jr., 57 ECAB 467 (2006); D.F., Docket No. 11-42 (issued August 1, 2011).

11

ORDER
IT IS HEREBY ORDERED THAT the November 4 and September 20, 2010 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Guaynabo, PR, Employer
__________________________________________

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

Docket No. 08-854
Issued: August 22, 2008

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 January 29, 2008 appellant filed a timely appeal from February 5, June 6 and
December 13, 2007 decisions of the Office of Workers’ Compensation Programs, denying her
traumatic injury claim. Pursuant to 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 sustained pneumonia on December 5, 2006 in the
performance of duty.
FACTUAL HISTORY
On December 21, 2006 appellant, then a 53-year-old customer service representative,
filed a traumatic injury claim alleging that on December 5, 2006 she sustained pneumonia while
assisting with a training program. She alleged that the training room was extremely cold due to
air conditioning. Appellant felt ill at the end of the workday and could not get out of bed the

next day. An emergency room report dated December 7, 2006, indicated that she sustained
bronchopneumonia and was hospitalized through December 11, 2006.
The employing
establishment controverted appellant’s claim. It indicated that appellant had bronchitis prior to
the December 5, 2006 training and had been feeling better but called in sick December 6, 2006
alleging that she experienced further respiratory problems due to the cold environment in the airconditioned training room. Appellant stated that “The prior bronchitis, even though recovered,
made me more susceptible to a hazardous environment -- such as the one in the job training,
where excessive cold temperature and possible gas or fumes presented a real hazard.”
In a form report dated January 2, 2007, Dr. Johnny A. Rodriguez Espinoza, a specialist in
internal medicine and infectious diseases, diagnosed bronchopneumonia. The history provided
by appellant was that she was exposed to cold air conditioning on December 5, 2006, which she
believed was the cause of her pneumonia. Dr. Rodriguez did not provide his opinion as to the
cause appellant’s diagnosed condition.
On January 3, 2007 the Office requested additional information, including a medical
report with a diagnosis and medical rationale explaining any causal relationship to appellant’s
employment on December 5, 2006.
By decision dated February 5, 2007, the Office denied appellant’s claim on the grounds
that the evidence did not establish that her bronchopneumonia was sustained on December 5,
2006 in the performance of duty.
On February 15, 2007 appellant requested a review of the written record and submitted a
January 24, 2007 report in which Dr. Rodriguez stated that her physical examination on
December 4, 2006 revealed that her lungs were clear and she could return to work the next day.
Dr. Rodriguez indicated that appellant was hospitalized on December 7, 2006 because her prior
bronchial condition was aggravated by “prolonged exposure to extreme cold temperature in an
enclosed room and possible toxic environment.” He stated that she was disabled from
December 6 to 20, 2006.
By decision dated June 6, 2007, an Office hearing representative affirmed the February 5,
2007 decision.
On August 15, 2007 appellant requested reconsideration and submitted an August 20,
2007 report in which Dr. Rodriguez stated:
“[Appellant] informed that on December 5, 2006 she attended work all day. The
work training room was extremely cold, less than 60 degrees. [Appellant] arrived
to her home feeling ill and the next day, December 6, 2006, was sick. She had
fatigue and fever. [Appellant] could n[o]t get out of bed and go to work that
morning, the training building was evacuated due to gas escape.”
***
“A cause of pneumonia is an adverse occupational environment. Respiratory
disease [is] associated with environment, in an airtight building it [is] more likely
to contact the disease. Cold temperature, exposure to irritants and fumes are
2

causes of pneumonia. Respiratory disease is more frequent in winter.
temperature of less than 79 degrees is cold.

A

“Cold air affects the mucus transport. When this is affected the respiratory
system is more susceptible to infection. Cold air increases mucus production.
Inhaled particles are cleared less easily. When cold air is breathed and the nose
tissue lining swell[,] [t]his causes nasal congestion. The nose mucus increases
and is thicker. Cold air can produce nasal congestion and make the body difficult
to remove inhaled virus and bacteria. Cold air reaches the lungs and the lungs
respond by releasing histamine. You can get sick breathing cold air or toxic
material. Also an improperly cleaned air conditioner or contaminated air
conditioner can cause pneumonia.
“Pneumonia was [the] result of being exposed to cold temperature … in an
enclosed environment.
“[Appellant] was physically well on December 4, 2006. On December 5, 2006
she arrived home ill after being exposed the whole day to very cold temperature
and possible fumes. On December 7, 2006 appellant was hospitalized with
pneumonia.
“It is … reasonable to conclude that pneumonia was work incident as a result of
exposure to adverse work condition. Condition apparently began during training.
“There [is] no other incident or outside activity that could have caused
sickness….
“The adverse work environment is the origin of injury considering all the
circumstances. The environment was contributory in weakening [appellant’s]
body resistance. [Appellant] was more sensitive to the cold temperature and
possible seep of toxic fumes due to recent bronchitis. Excessive cold increases
the risk that bronchitis aggravates and can lead to pneumonia. [Appellant] had
bronchitis from November 27 … to December 1, 2006. Pneumonia can develop if
you had bronchitis. Also, inhaling the pollutants that are trapped in confined
space can cause breathing problems especially to a person that had bronchitis.”
***
“[Appellant had bronchitis. She recovered and went to work well and left sick.
The adverse work environment, excessive cold and possible fumes caused or
aggravated her respiratory condition. The lung condition from December 6 to 20,
2006 was a result of work.”
By decision dated December 13, 2007, the Office denied modification of its denial of
appellant’s claim for pneumonia.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden to establish the essential elements of her claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, that
an injury was sustained in the performance of duty as alleged and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.3 Second, the employee must
submit medical evidence to establish that the employment incident caused a personal injury.4 An
employee may establish that the employment incident occurred as alleged but fail to show that
her disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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 specific employment factors identified
by the claimant.5
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed injury and her
employment.6 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by her as causing her condition
and, taking these factors into consideration, as well as findings upon physical examination of
appellant and her medical history, state whether the employment factors caused or aggravated
appellant’s diagnosed conditions and present medical rationale in support of his or her opinion.7
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

John J. Carlone, 41 ECAB 354 (1989).

4

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

5

Gary J. Watling, 52 ECAB 278 (2001); id.

6

Donald W. Long, 41 ECAB 142 (1989).

7

Id.

4

ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained
pneumonia on December 5, 2006 in the performance of duty.
Dr. Rodriguez noted that appellant’s physical examination on December 4, 2006 revealed
that her lungs were clear and she could return to work the next day. He stated that she was
physically well on December 4, 2006 but went home ill on December 5, 2006 after being
exposed the whole day to very cold temperatures and possible fumes. Dr. Rodriguez opined that
she was hospitalized with pneumonia on December 7, 2006 and disabled from December 6 to 20,
2006, because her prior bronchial condition was aggravated by “prolonged exposure to extreme
cold temperature in an enclosed room and possible toxic environment.” He explained that cold
air increases mucus production and nasal congestion which can make it difficult for the lungs to
remove inhaled virus and bacteria. Dr. Rodriguez indicated that pneumonia required exposure to
an infectious agent but he did not specify any specific agents to which appellant might have been
exposed on December 5, 2006 at work. In fact, he indicated only a “possible” exposure to
irritants, nor does the record establish the presence of any infectious agent or irritant in the
training room on December 5, 2006. Dr. Rodriguez noted that the training building was
evacuated on December 6, 2006 due to a gas leak. However, the gas leak occurred the day after
appellant claimed that she developed pneumonia and there is no evidence that she was exposed
to gas fumes on December 5, 2006. Dr. Rodriguez suggested that an improperly cleaned air
conditioner or contaminated air conditioner can cause pneumonia but there is no evidence of a
problem with the air-conditioning system where appellant worked on December 5, 2006, which
could have caused bacteria or other agents to be released into the air. He stated that it was
reasonable to conclude that appellant’s pneumonia was a result of exposure to adverse work
conditions because she noticed her condition at work and there was no other incident or outside
activity that could have caused sickness. However, the Board has held that the opinion of
Dr. Rodriguez that a condition is causally related to an employment injury because the employee
was asymptomatic before the injury is insufficient, without supporting medical rationale, to
establish causal relationship.8 He stated that appellant was more sensitive to the cold
temperature and possible seep of toxic fumes due to her recent bronchitis and excessive cold
increases the risk that bronchitis can lead to pneumonia. However, this rationale seems to
conflict with Dr. Rodriguez’ statement that appellant had recovered from her bronchitis before
December 5, 2006. If appellant was more sensitive to cold and susceptible to developing
pneumonia because of her recent bronchitis, then her assertion that she had recovered from her
bronchitis and “went to work well and left sick” seems inconsistent. Dr. Rodriguez did not
explain why, if she had recovered from her bronchitis and was well, she would be susceptible to
developing pneumonia due to her bronchitis. Medical reports not containing adequate rationale
on causal relationship are of diminished probative value and are generally insufficient to meet an
employee’s burden of proof.9 Due to these deficiencies, the reports of Dr. Rodriguez are
insufficient to establish that appellant’s pneumonia was caused or aggravated by factors of her
employment on December 5, 2006.
8

Jaja K. Asaramo, 55 ECAB 200 (2004).

9

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001).

5

CONCLUSION
The Board finds that appellant failed to establish that her pneumonia was sustained on
December 5, 2006 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 13, June 6 and February 5, 2007 are affirmed.
Issued: August 22, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
ENTRANCE PROCESSING STATION,
Miami, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0673
Issued: January 11, 2021

Case Submitted on the Record

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

JURISDICTION
On February 5, 2020 appellant, through counsel, filed a timely appeal from a December 31,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and medical benefits, effective June 6, 2019, as she no longer had
residuals or disability causally related to her accepted August 17, 2017 employment injury.
FACTUAL HISTORY
On August 21, 2017 appellant, then a 54-year-old medical technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 17, 2017 she injured her left hip and lower back
when she fell off a right leg scooter that she was riding due to a nonwork-related right ankle injury
while in the performance of duty. She stopped work on the date of injury.
By decision dated October 2, 2017, OWCP accepted appellant’s claim for sprain/strain of
the thoracic spine, lateral epicondylitis of the right elbow, sprain of the right elbow, lumbar spine,
and pelvis, unspecified sprain of the left hip, and strain of the muscle of the fascia and tendon of
the left hip. On January 11, 2018 it expanded the acceptance of her claim to include other sprain
of the left shoulder joint. Appellant received wage-loss compensation on the periodic rolls
beginning April 29, 2018.
Appellant returned to part-time limited-duty work on July 31, 2018. She stopped work
again on August 8, 2018 when the employing establishment withdrew her limited-duty work
assignment because it was unable to accommodate her work restrictions.
In letters dated January 7 and 8, 2019, OWCP requested that Dr. Yukhanan Benjamin,
appellant’s attending family practitioner, provide an opinion as to whether, she had any continuing
residuals or continuing disability resulting from her August 17, 2017 employment injury. It
afforded him 30 days to respond. No response was received.
On January 30, 2019 OWCP referred appellant, together with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Peter J. Millheiser, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding the status of her August 17,
2017 employment injury.
In a February 12, 2019 medical report, Dr. Millheiser noted his review of the SOAF and
the medical evidence of record. He described the August 17, 2017 employment injury and noted
that appellant’s claim was accepted for thoracic, right elbow, lumbar, left hip, and left shoulder
sprains, and right lateral epicondylitis. Dr. Millheiser noted her current complaints of right elbow,
left hip, back, left shoulder, and right lower extremity pain. Upon examination of the thoracic
spine, he noted moderate restriction of motion. There were no spasms, tenderness, or trigger
points. Upon examination of the lumbar spine, Dr. Millheiser reported moderate restriction of
motion. There was no tenderness, spasms, or trigger points. Lumbar lordosis was normal.
Dr. Millheiser indicated that appellant was using a back support which was removed for the
purpose of his examination. Appellant had normal ability to get on and off the examining table.
She limped slightly on the right. There was no atrophy in the lower extremities. Motor and sensory
examinations in the lower extremities were normal. Knee and ankle reflexes were intact. Straight
leg raising was negative sitting and positive at 10 degrees bilaterally when appellant was supine

2

and asked if there was pain. Various Waddell findings were positive, including a Patrick’s sign,
axial rotation, and log rolling of the legs with appellant supine on the bed and asked if this caused
pain.
Upon examination of appellant’s left shoulder, Dr. Millheiser found significantly restricted
motion compared to what was found by her treating physician. He reported range of motion
measurements, observing 70 degrees of abduction, 60 degrees of flexion, 60 degrees of external
rotation, 40 degrees of internal rotation, 10 degrees of adduction, and 20 degrees of extension.
There was pain with any motion of the shoulder so impingement testing and O’Brien testing were
positive. There was no atrophy in the upper extremities. There was no shoulder tenderness,
crepitus, or instability. The right shoulder had full range of motion and no tenderness or crepitus.
Appellant complained about severe left hip pain and groaned with any motion of the left hip. She
had restricted motion of the hip, observing 90 degrees of flexion, 0 degrees of extension, 20
degrees of abduction, and 10 degrees of adduction. Appellant was vaguely tender about the hip.
There were no localizing signs. Any motion of the hip caused pain and this included impingement
testing. Dr. Millheiser indicated that x-rays of the lumbar spine showed slight narrowing of the
L5-S1 disc space. X-rays of the hips and left shoulder were negative.
Dr. Millheiser diagnosed left shoulder tendinopathy, lumbar sprain, right elbow sprain with
prior lateral epicondylitis, and left hip degenerative arthritis. In response to questions posed by
OWCP, he reported that appellant had no significant objective findings of residuals of her accepted
conditions. Dr. Millheiser explained that range of motion was under her voluntary control and that
while there was apparently a small anterior labral tear noted on a magnetic resonance imaging
(MRI) scan of the hip and appellant apparently was being treated for preexisting degenerative
arthritis of the hip, there was no significant arthritis seen on x-rays performed during his
examination and the hip MRI scan showed no significant arthritis and trochanteric bursitis. He
noted that there was considerable evidence of an over-exaggeration of complaints. Dr. Millheiser
also noted that, although appellant exhibited marked restriction of left shoulder motion, this was
certainly far different than what she exhibited to her physicians. He noted that she may have
sprained her left shoulder, but the sprain had resolved. Dr. Millheiser indicated that, by history,
appellant may have had a right elbow sprain and that various examiners found tenderness of the
lateral epicondyle, but there was no tenderness found on his examination. He maintained that she
may have had a lateral epicondylitis that had apparently cleared. Dr. Millheiser advised that
appellant had numerous findings of over-exaggeration regarding her lumbar spine condition. He
maintained that her back sprain would have cleared relatively shortly after her work accident.
Regarding appellant’s left hip sprain, Dr. Millheiser noted that she had limited motion, but there
was no significant limp on the left side. He would have expected a Duchenne limp if she had any
significant arthritis and no arthritis was shown either on x- rays or MRI scans. Dr. Millheiser noted
that appellant’s thoracic spine condition had returned to baseline. He determined that she had
previously reached maximum medical improvement (MMI) related to her August 17, 2017
employment injury. Dr. Millheiser opined that appellant had no residuals of her accepted
conditions and that she was capable of performing her full work duties with no restrictions, eight
hours per day. He further opined that no further medical treatment was needed. In a February 12,
2019 work capacity evaluation (Form OWCP-5c), Dr. Millheiser reiterated his opinion regarding
appellant’s work capacity.

3

By notice dated April 12, 2019, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits based on Dr. Millheiser’s opinion that
the August 17, 2017 accepted conditions had ceased without residuals or disability. It afforded
her 30 days to submit additional evidence or argument challenging the proposed termination.
In a May 8, 2019 report, Dr. Benjamin noted a history of the accepted August 17, 2017
employment injury. He reported findings on physical examination and reviewed diagnostic test
results. Dr. Benjamin noted that appellant’s accepted conditions of left shoulder joint sprain,
thoracic spine sprain/strain, unspecified right elbow and left hip sprains, lumbar-pelvis sprain, and
strain of the muscle of the fascia and tendon of the left hip. He advised that she also sustained left
shoulder supraspinatus tendinitis, right hand spontaneous rupture of the extensor tendon in
multiple sites, sacroiliitis, anxiety, and depression as a result of her August 17, 2017 employment
injury. Dr. Benjamin determined that appellant had reached MMI as of the date of his examination.
He opined that she had residuals of her accepted work injury. Dr. Benjamin noted that appellant
may have an exacerbation of her symptoms with activities of daily living which at that time may
need to be reassessed. He indicated that she should continue psychiatric treatment for her
depression and pain management.3 In a May 13, 2019 Form OWCP-5c, Dr. Benjamin indicated
that appellant was unable to perform her usual job.
A May 15, 2019 Notification of Personnel Action (Standard Form 50) indicated that
appellant resigned from the employing establishment effective that date as she sought medical
disability retirement benefits.
OWCP, by decision dated June 5, 2019, finalized the termination of appellant’s entitlement
to wage-loss compensation and medical benefits, effective June 6, 2019, finding that the medical
evidence submitted was insufficient to outweigh Dr. Millheiser’s second opinion.
On June 19, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated December 31, 2019, an OWCP hearing representative affirmed the
June 5, 2019 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
3

Additionally, in his May 8, 2019 report, Dr. Benjamin utilized the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and determined that appellant had
five percent permanent impairment of the left shoulder, two percent permanent impairment of the left hip, three percent
permanent impairment of the right elbow, and three percent permanent impairment of the lumbar spine. A.M.A.,
Guides (6th ed. 2009).
4
See D.G., Docket No. 19-1259 (issued January 29, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective June 6, 2019, as she no
longer had residuals or disability causally related to her accepted August 17, 2017 employment
injury.
OWCP referred appellant to Dr. Millheiser for a second opinion evaluation to determine
the status of appellant’s accepted conditions and work capacity. In his February 12, 2019 report,
Dr. Millheiser described her August 17, 2017 employment injury and noted that her claim was
accepted for thoracic, right elbow, lumbar, left hip, and left shoulder sprains, and right lateral
epicondylitis. He indicated that appellant’s physical examination revealed no objective findings
of the accepted conditions. Dr. Millheiser opined that the accepted work-related conditions had
resolved, that she could return to full-time full-duty work, and that there was no need for further
medical treatment.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Millheiser. Dr. Millheiser based his opinion on a proper factual and medical history and
physical examination findings and provided medical rationale for his opinion. He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related
to appellant’s August 17, 2017 employment injury. Accordingly, OWCP properly relied on
Dr. Millheiser’s second opinion report in terminating her entitlement to wage-loss compensation
and medical benefits.9
The remaining evidence submitted is insufficient to overcome the weight afforded to
Dr. Millheiser as the second opinion physician. Appellant submitted a May 8, 2019 report from
Dr. Benjamin describing the accepted August 17, 2017 employment injury, noting her accepted
5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6
K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

8

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

9
See K.W., supra note 6; N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued
June 24, 2016).

5

conditions, providing examination findings, and reviewing diagnostic test results. Dr. Benjamin
diagnosed left shoulder supraspinatus tendinitis, right hand spontaneous rupture of the extensor
tendon in multiple sites, sacroiliitis, anxiety, and depression causally related to the August 17,
2017 employment injury. Additionally, he opined that appellant had residuals of her accepted
injury, she was unable to perform her usual job, and continued medical treatment was needed.
However, Dr. Benjamin did not provide medical rationale explaining the basis of his conclusory
opinion and thus his opinion is insufficient to overcome the weight accorded to Dr. Millheiser.
The Board finds, therefore, that OWCP properly terminated appellant’s entitlement to wage-loss
compensation and medical benefits, effective June 6, 2019.
On appeal counsel contends that OWCP failed to give due deference to the findings of the
attending physician. However, Dr. Benjamin did not provide a rationalized opinion sufficient to
establish that appellant continued to have residuals or disability causally related to the August 17,
2017 employment injury.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective June 6, 2019, as she no
longer had residuals or disability causally related to her accepted August 17, 2017 employment
injury.

6

ORDER
IT IS HEREBY ORDERED THAT the December 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2021
Washington, DC

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

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

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

7