United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 20-0448
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from a December 3, 2019 merit
decision of the Office of Workers’ Compensation Programs. 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 18,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 20-0448 (issued November 18, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP appellant received an overpayment of compensation in
the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019 because she
continued to receive disability compensation following her return to work; (2) whether it properly
found that appellant was at fault in the creation of the overpayment and, therefore, precluded from
waiver of recovery; and (3) whether OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 24-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2017 she sustained a left knee injury when her foot hit the bottom
of a trailer and her knee buckled back while in the performance of duty. She stopped work on
July 31, 2017. OWCP initially accepted the claim for left knee contusion, sprain, effusion, and
later expanded the acceptance of the claim to include a left knee lateral meniscus tear. It paid
appellant wage-loss compensation on the supplemental rolls as of September 17, 2017 and on the
periodic rolls as of November 12, 2017.
OWCP advised appellant on September 28, 2017 that she was expected to return to work
as soon as she was able, and it was her responsibility to advise the employing establishment once
her physician found her capable of returning to work. It also advised appellant that once she
returned to work she should notify OWCP and return payment for any period worked to prevent
an overpayment of compensation. OWCP advised appellant that, if she worked during any portion
of the covered period and compensation payments were received via either paper check or for
payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP even if
she had already advised OWCP that she was working.
The employing establishment offered appellant a full-time modified assignment (limited
duty) as a mail processing clerk on October 4, 2018, which appellant accepted on
October 10, 2018.
In an e-mail to OWCP dated January 23, 2019, a health and resource management
specialist at the employing establishment noted that appellant had returned to work on
October 12, 2018.
In an automated compensation payment system (ACPS) worksheet dated January 28, 2019,
OWCP calculated that appellant’s overpayment amount for the period October 12, 2018 through
January 5, 2019 was $6,905.83. It noted that appellant was paid $158.86 for the period October 12
through 13, 2018 and $2,248.99 for each subsequent 28 -calendar-day period through
January 5, 2019.
In a preliminary overpayment determination dated July 8, 2019, OWCP advised appellant
that an overpayment of compensation in the amount of $6,905.83 had been created because she
returned to work full time on October 12, 2018, but continued to receive wage-loss compensation
through January 5, 2019. Appellant’s 28-day net compensation payment for September 16
through October 13, 2018 was $2,224.07, while her 28-day net compensation payment for the three

2

subsequent 28-day periods through January 5, 2019 was $2,248.99. OWCP provided its
computation of the amount of the overpayment for this period, dividing her 28-day compensation
during the relevant periods by 28 to arrive at a daily rate, then multiplying the daily rate by the
number of days appellant was overpaid. It made the preliminary finding that appellant was at fault
in the creation of the overpayment, as she accepted payments she knew or should have known to
be incorrect. OWCP advised appellant that she received a paper compensation check with the
printed period of payment and the amount paid and she should have rea sonably known that the
payment was incorrect because the dates overlapped with the period she worked ; therefore, she
accepted a payment she knew or reasonably should have known was incorrect. It afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
On August 2, 2019 appellant requested a prerecoupment hearing on an overpayment action
request form and contested the fact of the overpayment, the amount of the overpayment, and the
preliminary finding of fault, requesting a waiver. She completed an overpayment recovery
questionnaire (Form OWCP-20) and explained that she had reported her return to full-time work
in October 2018. Appellant noted that it took so long to “get my checks started” she believed the
checks were money she was due.
In a letter dated October 2, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Tuesday, November 19, 2019 at 2:30 p.m. Eastern Standard
Time (EST). The notice provided the appropriate toll-free number and passcode for the hearing.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated December 3, 2019, OWCP determined that appellant had abandoned her
request for a prerecoupment hearing. It indicated that appellant had received 30 days advanced
written notice of the hearing scheduled for November 19, 2019, but that she failed to appear.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to, or within 10 days after the hearing to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing. Consequently, appellant was deemed to have
abandoned her request for an oral hearing.
OWCP also finalized the preliminary overpayment determination that an overpayment of
compensation in the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019
was created. It found that appellant was at fault in the creation of the overpayment and required
recovery in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA4 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 his duty. 5 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

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law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. 7 OWCP regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,905.83 for the period October 12, 2018 through January 5, 2019 because she continued to
receive disability compensation following her return to work.
OWCP paid appellant wage-loss compensation for disability on the periodic rolls. The
evidence reflects that appellant returned to work, full time, on October 12, 2018. Appellant
continued to receive wage-loss compensation through January 5, 2019. A claimant is not entitled
to receive temporary total disability benefits and actual earnings for the same time period. 9
Accordingly, the Board finds that appellant received an overpayment of compensation.10
The record shows that OWCP calculated that, from October 12, 2018 through January 5,
2019, appellant received $6,905.83 in total net compensation, but was not entitled to any
compensation during this time period. OWCP explained that appellant was paid $158.86 for the
period October 12 through 13, 2018 and $2,248.99 for each subsequent 28 -calendar day period
through January 5, 2019.11 The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $6,905.83 for the period October 12,
2018 through January 5, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against

6

Id. at § 8129(a).

7

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

8

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.

9

Supra note 7.

10

J.M., Docket No. 17-1574 (issued February 8, 2018).

11

The daily rate for the period September 16 through October 13, 2018 was $79.43. The daily rate for the periods
during October 14, 2018 through January 5, 2019 was $80.32.

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equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect. 14
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid. 15
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled. 16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
In order for it to establish that appellant was at fault in the creation of the overpayment of
compensation, OWCP must establish that, at the time appellant received the compensation check
in question, she knew or should have known that the payment was incorrect. 17
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, if he or she knows or should
have known that they were not entitled to such compensation, but decides nonetheless to cash or
deposit the check, the cashing or depositing of the check establishes fault.18
On September 28, 2017 OWCP advised appellant that she was to immediately inform it of
any return to work. It also advised appellant that if she continued to receive wage-loss
12

5 U.S.C. § 8129(b).

13

Gregg B. Manston, 45 ECAB 344, 354 (1994).

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

15

Id. at § 10.433(b).

16

Diana L. Booth, 52 ECAB 370 (2001).

17

J.H., Docket No. 17-0592 (issued May 1, 2018); Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

See J.H., id.; William F. Salmonson, 54 ECAB 152 (2002).

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compensation by check, but had worked during any period covered by a check, she had to return
the check, even if she had reported her return to work to OWCP. Thus, appellant should have
known that she could not receive wage-loss compensation by check after her return to work.
The Board finds that as the checks in question do not appear in the record, it is unable to
verify that the checks identified the period for which compensation was paid and , therefore, that
appellant should have known that the checks were compensation payments for the period following
which she had returned to work.
Accordingly, the Board finds that the case must be remanded to OWCP. OWCP shall scan
copies of the checks issued to appellant for the period October 12, 2018 through January 5, 2019
into to the case record. OWCP shall thereafter determine whether appellant knew or should have
known that she received an overpayment of compensation. OWCP shall then issue a new
preliminary overpayment determination regarding the issue of fault, with an overpayment action
request form, a Form OWCP-20 instructions for appellant to provide supporting financial
documentation. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,905.83 from October 12, 2018 through January 5, 2019. The
Board further finds, however, that this case is not in posture for decision as to whether appellant
was at fault in the creation of the overpayment.

19

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Richwell Ison, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1653
Issued: November 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from the April 12, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs refusing to reopen his case for
further review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this nonmerit decision. The last merit decision of record is the Board’s
February 20, 2001 decision denying appellant’s claim for a work-related emotional condition.
Because more than one year has elapsed between the last merit decision and the filing of this
appeal on June 8, 2010, the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error.
1

See 20 C.F.R. §§ 501.2(c) and 501.3. Docket No. 00-683 (issued February 20, 2001). A decision of the Board
is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d). Appellant did not seek
reconsideration of the Board’s decision pursuant to 20 C.F.R. § 501.7(a).

FACTUAL HISTORY
In April 1998 appellant, then a 38-year-old distribution clerk, alleged that he sustained
emotional and stress-related conditions as a result of incidents and conditions at work. In
December 29, 1998 and August 11, 1999 decisions, the Office denied his claim on the grounds
that he did not establish any compensable employment factors.2 In a February 20, 2001 decision,
the Board affirmed the Office’s December 29, 1998 and August 11, 1999 decisions.3
In a March 24, 2010 letter received by the Office on March 31, 2010, appellant’s attorney
requested reconsideration on behalf of appellant. He asserted that, when a package exploded in
appellant’s hands, management did not determine whether the substance was harmful or not.
Counsel argued that management’s refusal to take appellant to the hospital aggravated his posttraumatic stress syndrome. There were no expert witnesses available at the work site and
therefore appellant should have been given the benefit of the doubt and received medical
attention. Counsel stated, “There are clear and unmistakable errors, in the findings against an
individual who has had serious mental problems, after a stressful event. We would like to reopen
this matter, to argue that there were clear and unmistakable errors, by not allowing first-hand
witnesses to testify, and a failure to test the exploding substance.”
In an April 12, 2010 decision, the Office denied appellant’s request for reconsideration of
the merits of his claim on the grounds that it was untimely filed and failed to establish clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted the Office under section 8128(a) of the Act.5
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application

2

Appellant alleged that he was subjected to harassment and discrimination by his supervisors on February 15,
1998 when they failed to show proper concern and refused to allow him to go to the hospital after a liquid substance
leaked from a package onto his hands. The Board found that appellant was not subjected to harassment and
discrimination, noting that he was shown the commercially labeled bottle from which shampoo leaked and was
advised that he was free to take leave in order to go to the hospital if he so wished.
3

Docket No. 00-683 (issued February 20, 2001).

4

20 C.F.R. § 10.607(a). According to Office procedure, the one-year period for requesting reconsideration begins
on the date of the original Office decision, but the right to reconsideration within one year also accompanies any
subsequent merit decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (January 2004).
5

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

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establishes “clear evidence of error.”6 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office decision.13
ANALYSIS
In December 29, 1998 and August 11, 1999 decisions, the Office denied appellant’s
claim for emotional and stress-related conditions on the grounds that he did not establish any
compensable employment factors. In a February 20, 2001 decision, the Board affirmed the
denial of the claim. In an April 12, 2010 decision, the Office denied appellant’s request for
further review of the merits of his claim on the grounds that his request was untimely filed and
failed to demonstrate clear evidence of error.
In its April 12, 2010 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on March 31,
2010, more than one year after the last merit decision of record, the Board’s February 20, 2001

6

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

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). Office procedure further provides, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the [Office] made an error (for
example, proof that a schedule award was miscalculated).” Id. at Chapter 2.1602.3c.
8

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

9

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

10

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

11

See Leona N. Travis, supra note 9.

12

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

13

Leon D. Faidley, Jr., supra note 5.

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decision. Therefore, he must demonstrate clear evidence of error on the part of the Office in the
denial of his claim for an emotional condition.14
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its December 29, 1998 and August 11, 1999 decisions. He did not submit the type of positive,
precise and explicit evidence which manifests on its face that the Office committed an error in
denying his claim for an emotional condition.
In connection with his untimely reconsideration, appellant argued that he had established
an employment factor in connection with management’s handling of the situation when a
package leaked liquid onto his hands.15 He claimed that management’s refusal to take appellant
for medical evaluation, particularly since no medical personnel were present at the work site to
evaluate the liquid, constituted clear error. Appellant made such argument before the Office and
the Board. The facts in evidence identified the substance as commercial shampoo and he was
advised he could take leave if he wished medical evaluation.16 Appellant’s argument does not
establish clear error that the employing establishment acted unreasonably in handling the matter
of the leaking liquid. His contention was previously considered and does not shift the weight of
evidence in favor of the claim.
For these reasons, the argument submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s prior merit decisions. The Office properly
determined that appellant did not show clear evidence of error in those decisions.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
establish clear evidence of error.

14

See supra note 4.

15

The Board has found that an administrative or personnel matter, such as managing a safety-related matter, will
be considered to be an employment factor where the evidence discloses error or abuse on the part of the employing
establishment. In determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably. See Richard J. Dube, 42 ECAB 916, 920 (1991).
16

Appellant also asserted that management wrongly posted a picture depicting him as a wanted person and
improperly placed him on leave without pay status. He did not explain how these claimed facts would show clear
evidence of error in the Office’s prior decisions.

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ORDER
IT IS HEREBY ORDERED THAT the April 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
L.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Washington, DC, Employer
__________________________________________

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

Docket No. 12-93
Issued: May 22, 2012

Case Submitted on the Record

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

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from a May 3, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back injury in the performance of duty on January 31, 2008.
FACTUAL HISTORY
On January 31, 2008 appellant, then a 46-year-old customs and border patrol officer, filed
a traumatic injury claim (Form CA-1) alleging a back injury that day when his heel slipped off a
step; he lost his balance and fell backwards on the stairs. In a witness statement, a Kevin
1

5 U.S.C. § 8101 et seq.

Packwood reported that he heard appellant complaining of back pain from falling down the stairs
when he slipped. Appellant notified his supervisor on January 31, 2008.
In a safety investigation form, appellant’s supervisor reported that appellant sustained
back pain when he slipped and fell backwards down a stairwell at the Champlain Port of Entry
on January 31, 2008.
In a September 28, 2010 medical report, Dr. Eric Herskowitz, a Board-certified
diagnostic radiologist, noted that a magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine showed no evidence of fracture, dislocation, fusion or instability with flexion or
extension. Lumbar disc spaces were preserved and there was minimal degenerative changes of
the sacroiliac joints. Dr. Herskowitz noted normal radiographs of the lumbar spine and
diagnosed minimal osteoarthritis of the sacroiliac joints.
In progress notes dated April 10, 2008 to February 14, 2011, Adelaide Chute, a nurse
practitioner, stated that appellant complained of low back pain after his left leg slipped on the
stairs at work causing him to fall on January 31, 2008. Ms. Chute noted that appellant’s pain had
been intermittent over the last several years and diagnosed lumbago from the injury at work.
In an undated narrative statement, appellant stated that immediately after he fell down the
stairs on January 31, 2008, he experienced severe pain with movement such as sitting, kneeling,
twisting and standing. He notified his supervisor and filed a Form CA-1 on the date of the
incident. Appellant stated that his pain slowly decreased after the date of injury but never fully
went away, causing him to seek medical attention.
In an April 20, 2011 medical report, Dr. Richard Webber, Board-certified in internal
medicine, stated that appellant initially complained of low back pain on April 10, 2008 from
falling on stairs at work on January 31, 2008. Appellant was treated with physical therapy and a
September 26, 2010 lumbar spine x-ray revealed normal except for minimal osteoarthritis of the
sacroiliac joints. Dr. Webber opined that it was possible that the original injury caused
appellant’s recurrent back pain.
By decision dated May 3, 2011, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that appellant’s osteoarthritis of the sacroiliac joints was
causally related to the accepted January 31, 2008 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.5 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. This medical opinion must
include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
The term physician is defined under section 8101(2), as follows: “physician includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.”7
ANALYSIS
OWCP accepted that the January 31, 2008 employment incident occurred in the
performance of duty as alleged. The issue is whether appellant has established that this fall on
the stairs caused his back condition. The Board finds that he did not submit sufficient medical
evidence to support that his osteoarthritis of the sacroiliac joints is causally related to the
January 31, 2008 employment incident.8
In a September 28, 2010 medical report, Dr. Herskowitz reported that an MRI scan of
appellant’s lumbar spine showed no evidence of fracture, dislocation, fusion or instability with
flexion or extension. Lumbar disc spaces were preserved and there was minimal degenerative
changes of the sacroiliac joints. Dr. Herskowitz noted normal radiographs of the lumbar spine
and diagnosed minimal osteoarthritis of the sacroiliac joints. While Dr. Herskowitz provided a
diagnosis of osteoarthritis of the sacroiliac joints, he did not explain whether or how the accepted
January 31, 2008 incident caused or contributed to any back condition. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

5 U.S.C. § 8101(2).

8

See Robert Broome, 55 ECAB 339 (2004).

3

is of limited probative value on the issue of causal relationship.9 Thus, Dr. Herskowitz’s report
is insufficient to meet appellant’s burden of proof.
In an April 20, 2011 medical report, Dr. Webber reported that he began treating appellant
on April 10, 2008 for complaints of low back pain from falling on stairs at work on
January 31, 2008. Appellant was treated with physical therapy and a September 26, 2010 lumbar
spine x-ray revealed normal except for minimal osteoarthritis of the sacroiliac joints.
Dr. Webber opined that it was possible that the original injury caused appellant’s back pain.
The Board finds that the opinion of Dr. Webber is not well rationalized. While
Dr. Webber diagnosed appellant’s injury, he failed to explain how the accepted January 31, 2008
incident caused or contributed to the diagnosed back condition. Dr. Webber’s opinion that it was
possible that the original injury caused appellant’s back pain is speculative and equivocal.10 To
be of probative value, a physician’s opinion on causal relationship should be one of reasonable
medical certainty.11 Dr. Webber’s opinion references back pain and not osteoarthritis of the
sacroiliac joints, as a possible diagnosis resulting from the January 31, 2008 employment
incident. The Board has held that pain is generally a description of a symptom rather than a firm
medical diagnosis.12 Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.13 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record
and provide medical rationale explaining the relationship between the diagnosed condition and
the established incident or factor of employment.14 Without medical reasoning explaining how
January 31, 2008 employment incident caused or contributed to appellant’s osteoarthritis of the
sacroiliac joints, Dr. Webber’s report is insufficient to meet appellant’s burden of proof.15
The remaining medical evidence of record from Ms. Chute, a nurse, is also insufficient to
establish causal relationship between appellant’s injury and the January 31, 2008 employment
incident. Nurse practitioners are not physicians as defined under FECA, therefore, their reports
do not constitute medical evidence in support of a claim.16

9

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

10

See Michael R. Shaffer, 55 ECAB 339 (2004).

11

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

12

C.F., Docket No. 08-1102 (issued October 10, 2008).

13

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

14

See Lee R. Haywood, 48 ECAB 145 (1996).

15

C.B., Docket No. 08-1583 (issued December 9, 2008).

16

Section 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law; see also Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

4

In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the January 31, 2008 employment incident and appellant’s osteoarthritis of
the sacroiliac joints. Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
osteoarthritis of the sacroiliac joints is causally related to the January 31, 2008 employment
incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 22, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 10-2289
Issued: July 5, 2011

Case Submitted on the Record

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

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from a March 19, 2010 merit
decision of the Office of Workers’ Compensation Programs which denied his claim for
recurrence and a May 12, 2010 nonmerit decision which denied his request for review of the
written record. Pursuant to the Federal Employees’ Compensation Act1 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 a recurrence of partial disability
commencing March 6, 2009 as a result of his accepted bilateral knee condition; and (2) whether
the Office properly denied his request for an oral hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 1999 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim alleging he suffered from a bilateral knee condition due to his employment. On
November 30, 2000 the Office accepted his claim for exacerbation bilateral chondromalacia
patella. In December 2000, appellant returned to full-time limited duty at his employing
establishment.
On August 5, 2009 appellant filed a recurrence claim alleging that he sustained a
recurrence of disability commencing on March 6, 2009 due to his accepted bilateral
chondromalacia condition. In a supplemental statement, he explained that he continued to have
knee pain, which increased over time, even after he began his light-duty assignment. Appellant
provided a timeline of doctor visits, medical restrictions given and limited-duty assignments. He
stated that his knee pain increased and never went completely away despite physical therapy,
medications and cutting back on normal life activities such as cooking and cleaning. By 2008,
appellant stopped doing almost anything at home, but, in March 2009, he decided that he could
no longer justify his low quality of life. He asked his physician if his pain could be reduced
through means other than medication, so his doctor restricted his workday to six hours.
In support of his recurrence claim, appellant submitted various forms and reports by
Dr. Luis Valls, a Board-certified internist. In June 26, 2009 medical report, Dr. Valls reduced
appellant’s work hours to a six-hour workday, instead of an eight-hour workday. He explained
that appellant requested a reduction in his work hours because of increasing knee pain. In a
July 9, 2009 duty status report, Dr. Valls stated that appellant was working eight hours a day
until recently and requested the Office to consider this information. He described appellant’s
injury as pain under his knee caps, tendons and joints of knees.
In a letter dated August 10, 2009, the Office requested additional evidence from appellant
regarding his wage-loss compensation claim. It specifically asked that appellant provide a
narrative medical report from his treating physician with objective findings explaining how his
condition worsened and why he was no longer able to perform the light-duty assignments he
used to be able to perform. The Office advised him that Form CA-17s and Form CA-20s would
not suffice to meet his burden of proof.
Appellant thereafter submitted various additional forms and reports by Dr. Valls,
including duty status reports with restrictions dated December 1999 to July 2009, modified duty
assignments from June 2005 to August 2009 and medical notes from November 1999 to
March 2006. He also provided various medical reports from Dr. Valls to support his claim. In a
July 9, 2009 medical form, Dr. Valls reported that appellant suffered from bilateral
chondromalacia and constant knee pain since June 1997. He also checked a box marked “yes”
that appellant needed to work on a reduced schedule because it was medically necessary and
stated that appellant should work six hours a day, five days a week. Dr. Valls stated that
appellant’s condition was chronic, but stable. He included a duty status report, which noted that
appellant had been working eight hours a day until recently and requested the Office to
reconsider the information. In an August 11, 2009 handwritten addendum, Dr. Valls listed
appellant’s dates of examination and estimated a reduced work schedule to six hours a day, five
days a week on June 26, 2009.

2

In a September 23, 2009 medical report, Dr. Valls confirmed appellant’s condition of
chondromalacia patellae. He explained that this condition could not be demonstrated by x-rays
or magnetic resonance imaging (MRI) scans, but only through an arthroscope or other surgical
procedure. Dr. Valls stated that he could not provide any objective findings to establish the
progression of appellant’s condition other than recognizing the classic symptoms of bilateral
knee pain, worsened with quadriceps functioning and that the arthritic process of his condition
was classic in its clinical presentation. He explained that evidence of the progression of
appellant’s condition included increased use of aspirin and other anti-inflammatory medication,
increased restrictions at work and home and the need of narcotic analgesics. Dr. Valls felt that
appellant could no longer tolerate an eight-hour workday and should be given a reduced work
schedule. He requested appellant be allowed to work a six-hour workday. In an undated medical
report, Dr. Valls stated that appellant worked six-hour days and continued to suffer from chronic
bilateral knee pain secondary to chondromalacia patellae.
Appellant filed additional wage-loss compensation claims for the period August 1 to
September 25, 2009 alleging that he was medically restricted to working only six hours.
By decision dated September 29, 2009, the Office denied appellant’s claims for a
recurrence of disability and wage-loss compensation on the grounds that he failed to demonstrate
a change in his limited-duty assignment or in the nature and extent of his condition to establish
that he sustained a recurrence of disability.
On October 8, 2009 appellant requested a review of the written record and resubmitted
Dr. Valls’ September 23, 2009 medical report. He also filed additional wage-loss compensation
claims for the period September 26 to November 20, 2009 alleging that he was medically
restricted to working six hours a day.
In a decision dated November 25, 2009, an Office hearing representative set aside the
Office’s September 29, 2009 decision and remanded the case for further development. The
Office determined that, although Dr. Valls’ reports were not completely rationalized, they were
consistent in supporting appellant’s claim for a recurrence and reduction of work hours. The
Office hearing representative requested that it prepare a statement of accepted facts and refer the
claimant for a second opinion examination regarding whether claimant’s disability from work
due to appellant’s accepted bilateral knee condition was causally related to his limited-duty
assignment at work.
On December 4, 2009 appellant filed another wage-loss compensation claim for the
period November 21 to December 4, 2009.
In a May 13, 2009 medical report, Dr. Michael B. Wyman, a Board-certified orthopedic
surgeon, noted appellant’s complaints of pain and stiffness in both his knees. The pain was
described as largely anterior around the four corners of his patella, radiating distally but without
a radicular quality. Upon examination, Dr. Wyman observed appellant had full extension in his
knee without difficulty but experienced some pain with compression. His distal CMS was intact
and straight leg raise test was negative. Dr. Wyman radiographs also showed minimal arthritic
changes and no joint space narrowing. He diagnosed appellant with patella malalignment, which
exacerbated his chondromalacia, as an overuse phenomenon relative to his work. Dr. Wyman

3

also stated that appellant was getting along okay with diminished activity, but had inquired about
how he could lessen his symptoms.
On January 20, 2010 the Office referred appellant, together with a statement of accepted
facts, the medical record and a work capacity evaluation form, to Dr. Ronald Lohman, a Boardcertified orthopedic surgeon, for a second opinion medical examination.
In a February 12, 2010 report, Dr. Lohman reviewed the statement of accepted facts,
history of injury and appellant’s medical records. Upon examination he noted that appellant’s
chief complaint regarded pain in both knees. Appellant rated his pain between a four to five on a
daily basis and explained that the pain increased when remaining immobile, sitting in the bentknee position, carrying weight and ascending or descending stairs. Dr. Lohman observed mild
crepitus bilaterally in the patellofemoral articulation and minor discomfort to compression at the
patellofemoral joint bilaterally. The Lachman’s and McMurray’s tests were also normal.
Dr. Lohman reviewed appellant’s May 23, 2009 radiographs and noted some minimal narrowing
of the patellofemoral articulation on the right side and bilateral medial compartment narrowing,
which was symptomatic with some minor spurring, over the distal aspect of the medial femoral
condyle in the notch on the bent-knee films. He diagnosed appellant with chronic bilateral
anterior knee pain, patellofemoral crepitus bilaterally, which was suggestive of chondromalacia
patellae and underlying alignment issues.
Dr. Lohman further opined that he saw no orthopedic rationale for appellant to not be
able to perform his modified-duty requirements eight hours a day. He explained that based on
his examination, he could not see where appellant’s condition has changed significantly to where
he was no longer capable of performing his light-duty assignments prior to March 6, 2009.
Dr. Lohman pointed out that appellant only complained of increased pain, but that pain was a
subjective symptom that could not be addressed objectively. He also included a work capacity
evaluation form which restricted appellant to sitting for up to four hours, walking for one to four
hours intermittently and standing for four hours intermittently.
In a decision dated March 19, 2010, the Office denied appellant’s claim for recurrence of
disability. It found that Dr. Lohman’s second opinion examination was the weight of medical
evidence. Based on the second opinion report, the Office determined that appellant did not show
that his condition materially changed such that he was no longer able to perform his light-duty
position prior to March 6, 2009.
On April 21, 2010 appellant filed a request for a review of the written record. He
resubmitted Dr. Valls’ September 23, 2009 medical report, July 9, 2009 duty status report and
the February 12, 2010 second opinion examination and included an April 21, 2010 personal
statement.
By decision dated May 12, 2010, the Office denied appellant’s request for review of the
written record because it was untimely filed and it determined that his issue could equally be
addressed through requesting reconsideration.

4

LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
an assignment are altered so that they exceed his established physical limitations.3
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements through the submission of
probative, medical evidence.4 To establish a change in the nature and extent of the injury-related
condition the employee must submit rationalized medical evidence documenting such change
and explaining how and why the accepted injury or condition disabled the claimant for work on
and after the date of the alleged recurrence of disability.5
Section 8123 (a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”6 When there are
opposing reports of virtually equal weight and rationale, the case must be refereed to an impartial
medical specialist, pursuant to section 8123 (a) of the Act, to resolve the conflict in the medical
evidence.7
ANALYSIS -- ISSUE 1
On August 5, 2009 appellant filed a claim alleging that he sustained a recurrence of
disability commencing on March 6, 2009 because he was medically restricted to a six-hour
workday due to a worsening of his bilateral chondromalacia patella. The Board finds that the
case is not in posture for decision.
2

20 C.F.R. § 10.5(x).

3

Id.

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
5

Maurissa Mack, 50 ECAB 498, 503 (1999); James H. Botts, 50 ECAB 265 (1999).

6

5 U.S.C. § 8123(a).

7

M.S., 58 ECAB 328 (2007).

5

Appellant provided medical reports from Dr. Valls, his treating physician, to support his
claim. In a June 26, 2009 medical report, Dr. Valls noted that appellant requested a reduction of
work hours due to increasing knee pain and provided a duty status report reducing appellant’s
workday to six hours. In a July 9, 2009 medical form and August 11, 2009 addendum, he
reported that appellant suffered from constant knee pain since June 1997 and recommended he
work six-hour workdays. In his September 23, 2009 medical report, Dr. Valls stated that he
could not provide objective findings to establish the progression of appellant’s condition other
than recognizing the symptoms of bilateral knee pain. He explained that the arthritic process of
appellant’s condition was classic in its clinical presentation and had progressed such that he felt
appellant could no longer tolerate an eight-hour workday.
Dr. Lohman’s February 12, 2010 second-opinion report reviewed the statement of
accepted facts, history of injury and appellant’s medical records. He examined appellant and
performed tests. Dr. Lohman reported examination findings of mild crepitus bilaterally in the
patellofemoral articulation, minor discomfort to compression at the patellofemoral joint
bilaterally; normal Lachman’s and McMurray’s tests, and minimal narrowing of the
patellofemoral articulation on the right and bilateral medial compartment narrowing with minor
spurring over the distal aspect of the medial femoral condoyle based upon May 23, 2009 x-rays.
Based on his observations, Dr. Lohman found that appellant’s condition had not significantly
changed to where he was not capable of performing his same light-duty assignments as of
March 6, 2009 and that there was no orthopedic rationale for why he was unable to keep his
light-duty position for eight hours a day.
The Board finds that the reports of Dr. Valls and Dr. Lohman are in conflict as to whether
appellant could continue to perform light-duty work for eight hours a day. In order to resolve the
conflict in medical opinion, the case will be remanded to the Office. The Office shall prepare a
statement of accepted facts and refer appellant and the case record to an impartial medical
specialist for examination and evaluation. After such further development as necessary, it shall
issue a de novo decision.8
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
sustained a recurrence of disability from March 6 until December 4, 2009.

8

Given the disposition of the first issue, the issue of denial of review of the written record is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the May 12 and March 19, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded for further
development consistent with this decision.
Issued: July 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bolingbrook, IL, Employer
__________________________________________

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

Docket No. 12-720
Issued: August 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 13, 2012 appellant filed a timely appeal from a December 20, 2011 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has greater
than 12 percent right upper extremity impairment.
On appeal, appellant asserts that the opinion of the attending physician who examined her
should be credited regarding her degree of right upper extremity impairment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 18, 1994 appellant, then a 34-year-old sorting machine operator, filed an
occupational disease claim alleging that repetitive keying at work caused bilateral wrist
tendinitis. The claim was adjudicated under OWCP file number xxxxxx660 and it accepted
bilateral tenosynovitis of the hand and wrist. OWCP also accepted that appellant sustained a
fracture of the left humerus and subsequent left shoulder tendinitis when she slipped and fell at
work on October 20, 2008. Appellant stopped work that day and did not return. OWCP
adjudicated the left upper extremity claim under file number xxxxxx052 and she receives wageloss compensation for this claim on the periodic rolls.
On April 8, 2010 appellant filed a schedule award claim under file number xxxxxx660.
In a July 19, 2010 report, Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon,
noted appellant’s complaints of diminished strength and swelling in both wrists with physical
examination findings of clicking, popping, crepitus and tenderness of the extensor and flexor
tendons of both wrists. He diagnosed bilateral wrist tenosynovitis and advised that maximum
medical improvement was reached on January 14, 2010. Regarding appellant’s right wrist
impairment, Dr. Chmell advised that in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2
under Table 15-32, Wrist Range of Motion, she had flexion of 45 degrees for a 3 percent
impairment, extension of 56 degrees for a 3 percent impairment, radial deviation of 10 degrees
for a 2 percent impairment and ulnar deviation of 10 degrees for a 4 percent impairment, for a
total range of motion impairment of 12 percent. He also advised that, under Table 15-8, Physical
Examination Adjustment, appellant had a 4 percent impairment due to a strength deficit and a
7 percent impairment due to additional findings of clicking, popping, crepitus and tenderness, for
a total right upper extremity impairment of 23 percent.
In an August 8, 2010 report, an OWCP medical adviser, Dr. Neil Ghodadra, an
orthopedic surgeon, reviewed the medical record including Dr. Chmell’s report. He agreed with
Dr. Chmell that maximum medical improvement was reached on January 14, 2010 and that
appellant had 12 percent impairment due to loss of wrist range of motion. Dr. Ghodadra differed
with Dr. Chmell regarding appellant’s entitlement to greater impairment, noting that he could
find no basis in the sixth edition for an additional impairment due to crepitus and a popping
sensation.
By decision dated July 6, 2011, OWCP granted appellant a schedule award for a
12 percent loss of use of the right upper extremity, with January 14, 2010 as the date of
maximum medical improvement. The award was for 29.28 weeks, to run from January 14 to
August 6, 2010 and was based on a weekly pay rate of $1,010.12 at the augmented compensation
rate of 75 percent or a weekly compensation rate of $757.59.
On August 18, 2011 appellant requested reconsideration and submitted an August 2, 2011
report in which Dr. Chmell advised that he disagreed with Dr. Ghodadra. Dr. Chmell stated that
Table 15-8 of the sixth edition of the A.M.A., Guides clearly indicated that physical examination
2

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

2

findings of clicking provided a grade modifier 2 which yielded a 7 to 10 percent impairment. He
further indicated that, while he initially stated that appellant had a 7 percent impairment under
Table 15-8, upon further consideration, she had a 10 percent impairment.
A second OWCP medical adviser, Dr. David H. Garelick, Board-certified in orthopedic
surgery, reviewed the medical record. He agreed with Dr. Ghodadra’s report regarding the right
upper extremity and provided additional findings regarding appellant’s left upper extremity.3
In a December 20, 2011 letter, OWCP informed appellant that she would not be granted a
schedule award for the left upper extremity because of ongoing left upper extremity problems
attributable to the 2008 employment injury, adjudicated under file number xxxxxx052.
Regarding the right upper extremity, it informed her that she was underpaid in the July 6, 2011
schedule award decision because the weekly pay rate did not include night differential or Sunday
premium. Further, the number of weeks granted was based on a right hand impairment rather
than a right arm impairment.
By decision dated December 20, 2011, a new schedule award was issued to reflect a 12
percent right upper extremity impairment, for 37.44 weeks or 262.08 days, to run from
January 14 to October 3, 2010, based on a weekly rate of $1,101.10 for an augmented weekly
compensation rate of $825.83, that included night differential and Sunday premium pay.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulation5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is used.8

3

Drs. Chmell, Ghodadra and Garelick also provided impairment analysis regarding appellant’s left upper
extremity, not at issue in this case.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

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

3

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has a 12 percent impairment of the right arm. Under the
sixth edition of the A.M.A., Guides, for upper extremity impairment the evaluator is to first
identify an impairment class for the diagnosed condition which is then adjusted by grade
modifiers based on functional history, physical examination and clinical studies.13 The evaluator
is to then apply the net adjustment formula.14 Section 15.2a of the sixth edition provides that the
first step in determining an impairment rating is to choose the diagnosis that is most applicable
for the region being assessed, to be followed by assessment in accordance with Table 15-7
through Table 15-9.15 It further provides that, under specific circumstances, range of motion
may be selected as an alternative approach in rating impairment and cautions that an impairment
rating that is calculated using range of motion stands alone and may not be combined with a
diagnosis-based impairment.16 Section 15.2 indicates that wrist impairment is to be evaluated
under Table 15-3, Wrist Regional Grid, to be followed by the adjustment modifiers in Table 15-7
to Table 15-9.17

9

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

A.M.A., Guides, supra note 10 at 385-419.

14

Id. at 411.

15

Id. at 389-90.

16

Id. at 390.

17

Id.

4

Dr. Chmell utilized range of motion findings found in Table 15-32, which he modified
using Table 15-8, the physical examination modifier table. As noted above, this is an incorrect
application of the A.M.A., Guides. While it is preferred that a diagnosis-based impairment be
utilized under the sixth edition, Dr. Chmell did not provide a diagnosis under Table 15-3 but
merely utilized Table 15-8 to find an additional impairment of 11 percent, which he identified as
“strength,” for 4 percent and “clicking/popping/crepitus/tenderness” for 7 percent. Section 15.3b
describes the correct application for utilizing Table 15-8. While it indicates that range of motion
can be part of the grading process, this is merely to modify the diagnosis identified under Table
15-3 and used in the net adjustment formula. Dr. Chmell did none of these things. Therefore,
his rating of impairment is not in accordance with the sixth edition of the A.M.A., Guides.
Both Dr. Ghodadra and Dr. Garelick agreed with Dr. Chmell’s findings with regard to his
range of motion measurements of appellant’s right wrist and his finding that she had 12 percent
impairment due to loss of wrist motion. The medical evidence establishes that appellant has 12
percent impairment of the right upper extremity, for which she received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a 12 percent impairment of the right upper extremity.

5

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2405
Issued: March 5. 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 September 24, 2007 appellant filed a timely appeal from a September 25, 2006 merit
decision of the Office of Workers’ Compensation Programs granting her a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUES
The issues are: (1) whether appellant has more than a five percent permanent impairment
of the left upper extremity; and (2) whether she has any permanent impairment of the right upper
extremity.
FACTUAL HISTORY
On May 14, 2003 appellant, then a 42-year-old bulk mail clerk, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome due to factors of her
federal employment. The Office accepted her claim for bilateral carpal tunnel syndrome.
Appellant stopped work on January 17, 2003 and returned to work on February 13, 2003. She

began working with restrictions on December 15, 2003. Appellant stopped work on February 4,
2004 and underwent a right carpal tunnel release on April 15, 2004 and a left carpal tunnel
release on July 14, 2004. Appellant resumed work with restrictions on October 18, 2004.1
In a report of the employing establishment dated April 29, 2005, Dr. Thomas A.
Wiedrich, a Board-certified plastic surgeon, measured full range of motion of the upper
extremities and 5/5 two-point discrimination for all fingers except the right thumb which had 6/5
discrimination. He found that appellant had a positive Phalen’s test on the left, negative Tinel’s
sign and median nerve compression tests bilaterally and no atrophy or hypertrophy.
Dr. Wiedrich stated, “The only objective finding that [appellant] currently has is a positive
Phalen’s test on the left wrist.” He noted that she had pain in her palm that did not substantially
limit her activities. Dr. Wiedrich listed work restrictions.
On June 23, 2005 appellant filed a claim for a schedule award. The Office requested that
she submit an evaluation from her attending physician addressing the extent of any permanent
impairment in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides). Appellant submitted a report dated
June 5, 2006 from Dr. Manmohan Singh, a Board-certified orthopedic surgeon, who found that
she had a five percent upper extremity impairment due to decreased strength and a five percent
upper extremity impairment due to sensory deficit. Dr. Singh opined that appellant reached
maximum medical improvement on June 5, 2006. He noted that she “appears to have symptoms
of peripheral neuropathy due to chemotherapy for breast cancer.” Dr. Singh related that he could
not determine appellant’s impairment due to this problem and recommended an evaluation by a
neurologist.
On September 4, 2006 an Office medical adviser reviewed the medical evidence and
noted that the only objective indication of carpal tunnel syndrome was Dr. Wiedrich’s finding of
a positive Phalen’s test on the left side. Applying the second scenario for evaluating carpal
tunnel syndrome on page 495 of the A.M.A., Guides, he found that appellant had a five percent
permanent impairment of the left upper extremity and no impairment of the right upper
extremity. The Office medical adviser opined that appellant reached maximum medical
improvement six months post surgery, October 15, 2004 on the left side and January 14, 2005 on
the right side.
By decision dated September 25, 2006, the Office granted appellant a schedule award for
a five percent left upper extremity impairment. The period of the award ran for 15.6 weeks from
October 18, 2004 to February 4, 2005.

1

By decision dated August 23, 2005, the Office reduced appellant’s compensation to zero based on its finding
that her actual earnings as a modified bulk mail technician effective May 25, 2005 fairly and reasonably represented
her wage-earning capacity.

2

LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulations3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.4
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.5
Regarding carpal tunnel syndrome, the A.M.A., Guides provide:
“If, after an optimal recovery time, following surgical decompression, an
individual continues to complain of pain, paresthesia and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS [carpal tunnel
syndrome] is rated according to the sensory and/or m motor deficits as
described earlier.
(2) Normal sensibility and opposition strength with abnormal sensory and
or motor latencies or abnormal EMG [electromyogram] testing of the
thenar muscles: a residual CTS is still present and an impairment rating
not to exceed five percent of the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”6
ANALYSIS -- ISSUES 1 & 2
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. She
underwent a right carpal tunnel release on April 15, 2004 and a left carpal tunnel release on
July 14, 2004. Appellant returned to work with restrictions on October 18, 2004.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

A.M.A., Guides 495.

3

On April 29, 2005 Dr. Wiedrich found that appellant had no atrophy and full range of
motion of both upper extremities. Appellant had normal two-point discrimination and negative
Tinel’s sign and median nerve compression tests bilaterally. Dr. Wiedrich determined that the
only objective finding of carpal tunnel syndrome was a positive Phalen’s test on the left side.
On June 23, 2005 appellant submitted a claim for a schedule award. In an impairment
evaluation dated June 5, 2006, Dr. Singh concluded that she had a five percent upper extremity
impairment due to loss of strength and a five percent upper extremity impairment due to sensory
deficits. He further found that appellant may have an additional impairment due to peripheral
neuropathy possibly related to chemotherapy. Dr. Singh did not provide the clinical findings
upon which he based his impairment rating or reference the tables and pages of the A.M.A.,
Guides. He further did not specify whether his evaluation pertained to the right or left upper
extremity. As Dr. Singh did not provide the sufficient clinical findings to evaluate appellant’s
upper extremity impairment, his opinion is of diminished probative value.7
The A.M.A., Guides provides a specific method for determining permanent impairment
for carpal tunnel syndrome following surgical release. Page 495 of the A.M.A., Guides states
that after an optimal recovery time following surgical decompression of carpal tunnel syndrome,
three scenarios are possible: if positive clinical findings of median nerve dysfunction are
present, the impairment is rated according to sensory or motor deficits; with normal sensibility
and opposition strength or abnormal sensory or motor latencies or abnormal EMG testing, an
impairment rating not to exceed five percent may be justified; finally, with normal sensibility,
opposition strength and nerve conduction studies, there is no objective basis for an impairment
rating.8
An Office medical adviser reviewed the evidence and noted that the only positive clinical
findings showing residual carpal tunnel syndrome was a positive Phalen’s test on the left side.
He applied the second scenario on pages 495 of the A.M.A., Guides, which provides an
impairment rating not to exceed five percent for residual carpal tunnel syndrome demonstrated
by normal sensibility and opposition strength with abnormal sensory and/or motor latencies or
abnormal EMG testing of the thenar muscles. The Office medical adviser’s finding is not
supported by any diagnostic studies obtained subsequent to appellant’s carpal tunnel releases.
He gave appellant the presumption of abnormal testing and determined that she had a five
percent impairment of the left upper extremity. The Office medical adviser concluded that she
had no impairment of the right upper extremity. The evidence in this case fails to establish that
appellant has more than a five percent permanent impairment of the left upper extremity or a
permanent impairment of the right upper extremity.
On appeal appellant contends that she is entitled to a schedule award for the right upper
extremity based on Dr. Singh’s report. As discussed above, however, Dr. Singh did not provide

7

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

8

See supra note 6.

4

any clinical findings upon which he based his rating or cite to the A.M.A., Guides, consequently,
his report is of diminished probative value.9
CONCLUSION
The Board finds that appellant has not established that she has more than a five percent
permanent impairment of the left upper extremity. It further finds that she has not established a
permanent impairment of the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2006 is affirmed.
Issued: March 5, 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

9

See Patricia J. Penney-Guzman, supra note 7.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brunswick, ME, Employer
__________________________________________

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)
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)
)
)

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

Docket No. 07-1814
Issued: June 19, 2008

Case Submitted on the Record

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

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 30 and June 7, 2007 merit decisions finding that he did not
sustain an injury in the performance of duty on January 23, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 23, 2006.
FACTUAL HISTORY
On January 24, 2006 appellant, then a 63-year-old clerk, filed a traumatic injury claim for
compensation for a slip and fall on ice in the employing establishment’s parking lot on
January 23, 2006. He indicated that the injury occurred at 4:45 p.m. and that he landed on his
back. Appellant’s supervisor, Bobby-Jo Watson, checked a box on the form to indicate that he
was not considered to be in the performance of duty when the injury occurred. She reported that

appellant’s regular duty hours were 5:00 a.m. to 2:00 p.m. and that he had “clocked out for the
day” at 4:03 p.m. In support of his claim, appellant submitted reports of Dr. Timothy Manahan,
an attending osteopath, dated January 25 to November 24, 2006.
In a January 26, 2006 statement, appellant indicated that on January 23, 2006 he had
“clocked out” at the tenth-hour as he did not want to incur penalty time. He asserted that he
returned to his office and worked on pay statements regarding vehicle repairs for about
45 minutes. Appellant indicated that he was to retire on about February 3, 2006 and he wanted
to wrap up unfinished projects.
In an April 19, 2006 letter, the Office advised appellant of the factual and medical
evidence needed to establish his claim. In a May 2, 2006 letter, appellant reiterated that he
slipped on a patch of ice in the employing establishment’s parking lot and landed on his back.
He stated that two people witnessed the fall and helped him to get up. In an April 27, 2006
report, Dr. Manahan opined that appellant sustained muscle spasms, neck pain, thoracic pain and
lumbar pain as a result of his January 23, 2006 fall.
In a January 3, 2007 letter, the Office requested additional information from the
employing establishment. In a January 26, 2007 response, Doris Baker advised that penalty
overtime occurs when an employee works more than 10 hours in 1 day. She indicated that such
an employee would be paid double time in wages. Ms. Baker stated that appellant incurred three
minutes of penalty overtime on January 23, 2006. She stated that she was not aware that
appellant was working “off the clock” and noted that he was not authorized by management to
work beyond 10 hours per day. Ms. Baker indicated that appellant retired 10 days after the
injury and pointed out that he “stated he wanted to make sure that all work was complete prior to
his retirement.”
In a January 30, 2007 decision, the Office denied appellant’s claim. It found that
appellant was not injured in the performance of duty on January 23, 2006 as he was not required
or authorized to work the additional time of 45 minutes just prior to the claimed injury.
On February 16, 2007 appellant requested a review of the written record by an Office
hearing representative. In a February 16, 2007 letter, he indicated that the work he did off the
clock was part of his regular duties and the additional accounting duties he took over. Appellant
stated that such work had to be completed before his February 3, 2006 retirement. In a
February 5, 2007 letter, he stated that Ms. Baker was not working at the employing establishment
on January 23, 2006 and would not have had knowledge of what transpired on that date.
Appellant asserted that his supervisor, Ms. Watson, knew that he was “working over” to finish
the necessary paperwork and was well aware that he had been working a minimum of 10 hours
per day to perform his regular duties along with the additional accounting duties.
In a February 13, 2007 statement, Richard Barrett, a coworker, noted that he was
employed from 1981 to 2005 and “during this time frame, on numerous occasions, management
was aware of [appellant] working off the clock.” In a February 13, 2007 statement, another
coworker1 noted that he worked with appellant for 13 years prior to his retirement and indicated
1

The name is not entirely legible.

2

that he “consistently worked in the Brunswick Post Office Building, with supervisor and
postmaster knowledge, while he was not on the clock. He was doing vehicle paperwork on
supplies in the basement.”
In a June 7, 2007 decision, the Office hearing representative affirmed the Office’s
January 30, 2007 decision. He found that appellant’s January 23, 2006 injury was not sustained
in the performance of duty as it occurred at an unreasonable interval of time after his work shift
ended.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”3 The phrase “sustained while in the performance of duty” has been
interpreted by the Board to be the equivalent of the commonly found prerequisite in workers’
compensation law of “arising out of and in the course of employment.”4 The phrase “in the
course of employment” is recognized as relating to the work situation and more particularly,
relating to elements of time, place and circumstance. To arise in the course of employment, an
injury must occur at a time when the employee may reasonably be said to be engaged in the
master’s business, at a place where he may reasonably be expected to be in connection with the
employment and while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.”5 This alone is not sufficient to establish entitlement to
benefits for compensability. The concomitant requirement of an injury “arising out of the
employment” must be shown and this encompasses not only the work setting but also a causal
concept, the requirement being that the employment caused the injury.6
As to employees having fixed hours of work, injuries occurring on the premises of the
employing establishment, while the employee is going to or from work, before or after working
hours or at lunch time, are compensable. Given this rule, the Board has noted that the course of
employment for employees having a fixed time and place of work includes a reasonable time
while the employee is on the premises engaged in incidental acts and is based on the
circumstance of the employee’s activity.7 However, presence at the employing establishment’s
premises during work hours or a reasonable period before or after a duty shift, is insufficient, in
and of itself, to establish entitlement to benefits for compensability. The claimant must also
establish the concomitant requirement of an injury arising out of the employment. This
encompasses not only the work setting, but also the causal concept that some factor of the
employment caused or contributed to the claimed injury. In order for an injury to be considered
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

Charles Crawford, 40 ECAB 474, 476-77 (1989).

5

Mary Keszler, 38 ECAB 735, 739 (1987).

6

Eugene G. Chin, 39 ECAB 598, 602 (1988).

7

Maryann Battista, 50 ECAB 343 (1999).

3

as arising out of the employment, the facts of the case must show substantial employer benefit is
derived or an employment requirement gave rise to the injury.8
In cases in which coverage has been extended, some substantial employer benefit or
requirement has been shown. In Catherine Callen,9 coverage was extended to a legal secretary
who sustained a fractured left wrist after she fell over a chair. The injury occurred at 11:00 p.m.,
following her regular tour of duty which stopped at 5:00 p.m. The Board noted that the
employee’s presence on the premises that Friday evening was to complete a project for an
attorney at the employing establishment which had been requested earlier that day in order that
she could work on it during the weekend as the materials were needed the following Monday.
That Friday was her last day at the employing establishment prior to her relocation to a
U.S. Attorney’s office across the country. The Board noted that there was no express prohibition
concerning her overtime work and the record established a substantial employer benefit from her
presence at work.
ANALYSIS
In the present case, appellant had fixed hours from 5:00 a.m. to 2:00 p.m. On January 23,
2006 he “clocked out” at 4:03 p.m. after working approximately 10 hours, which the employing
establishment verified. Thus, the evidence establishes that on January 23, 2006 appellant’s
workday ended at 4:03 p.m. Appellant’s injury, a slip and fall in the employing establishment’s
parking lot, occurred at 4:45 p.m., approximately 45 minutes after the workday ended. As noted
above, a claimant’s presence at the employing establishment’s premises, a reasonable period
after a duty shift, would be insufficient, in and of itself, to establish entitlement to benefits for
compensability. A claimant must also establish the concomitant requirement of an injury arising
out of the employment, i.e., the causal concept that some factor of the employment caused or
contributed to the claimed injury.10
The Board notes that it would be instructive to compare the circumstances of the present
case with those of the above-cited case of Callen. In both cases, it is clear that some type of
regular or specially assigned duties were performed. In Callen, the employee was completing a
project for an attorney on her last day at the employing establishment prior to her relocation to a
U.S. Attorney’s office across the country. In the present case, appellant worked on pay
statements regarding vehicle repairs and performed other regular and specially assigned
accounting duties that had to be finished before he retired in about 10 days. Given the nature of
the duties in both instances and urgent need for them to be completed, it can be said that
substantial employer benefit was derived in both instances. In Callen, the employee’s supervisor
did not have direct knowledge of the employee’s presence on site after hours, but on the same
day he did specifically assign her the task she was working on when she was injured. In the
present case, it is not entirely clear whether appellant’s supervisor, Ms. Watson, knew that he
was working after hours on January 23, 2006. However, too much emphasis should not be
8

Cheryl Bowman, 51 ECAB 519 (2000); Shirlean Sanders, 50 ECAB 299 (1999).

9

47 ECAB 192 (1995).

10

See supra note 8 and accompanying text.

4

placed on whether there was actual knowledge by appellant’s supervisor that appellant was
working after hours on January 23, 2006. In Callen, the Board emphasized that, regardless if
there was actual knowledge of the employee’s working after hours, there was no express
prohibition concerning the performance of such work.
In the present case, there is no evidence that appellant was expressly prohibited from
working after hours. Statements from appellant’s coworkers suggest that management knew that
employees were performing after-hours work and generally tolerated it. Much like in Callen,
appellant was performing work of an urgent nature which was of substantial benefit to the
employer. In Callen, the accepted injury occurred a full five hours after the employee had
clocked out for the day. In the present case, appellant’s claimed injury on January 23, 2006
occurred only about 45 minutes after he clocked out for day. The Board finds that, particularly
when one considers the incidental nature of appellant’s activity, the claimed injury occurred
during a reasonable interval after the end of his workday. Given the high level of the benefits of
appellant’s work to the employer, the fact that his working after hours was not expressly
prohibited and the occurrence of the alleged incident within a reasonable interval after clocking
out for the day, the Board finds that appellant’s fall on January 23, 2006 occurred in the
performance of duty.
CONCLUSION
The Board finds that the alleged incident on January 23, 2006 occurred in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 7 and January 30, 2007 decisions are reversed and the case is remanded for further action
consistent with this decision.
Issued: June 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5