United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 10-2326
Issued: July 13, 2011

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 September 16, 2010 appellant filed a timely appeal from an August 26, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate compensation for wageloss and medical benefits as of February 22, 2010.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated November 25, 2008,
the Board found appellant’s fall at work on April 25, 2006 was in the performance of duty, as it

1

5 U.S.C. § 8101 et seq.

was an unexplained fall.2 The history of the case as provided in the Board’s prior decision is
incorporated herein by reference.
OWCP accepted the claim for syncope and aggravation of bilateral shoulder conditions
and spondylolisthesis. In a report dated February 16, 2009, Dr. Curtis Spencer, an attending
orthopedic surgeon, stated that appellant had bilateral rotator cuff disease, had been disabled
since July 26, 2006 and had not returned to his preinjury condition. He noted that appellant also
had back problems that complicated the issue. OWCP referred appellant for a second opinion
examination by Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon.
In a report dated April 15, 2009, Dr. Ha’Eri provided a history and results on
examination. He diagnosed chronic bilateral rotator cuff tears with osteoarthritic changes and
lumbar spondylolisthesis. Dr. Ha’Eri advised that these conditions preexisted the April 25, 2006
injury, and were temporarily aggravated by the work injury, with no material change caused by
the fall at work. He found that the aggravations of the shoulders and back had resolved; the
chronic rotator cuff tears were associated with atrophy of the muscles and osteoarthritis, while
the lumbar spondylosis was worsening as a result of the normal progression of a degenerative
condition.
In a report dated June 3, 2009, Dr. Spencer noted that he had reviewed Dr. Ha’Eri’s
report, but disagreed as to the nature of the work-related aggravation. He stated that a fall could
cause additional cartilaginous damage and he believed appellant’s shoulder condition had been
permanently aggravated by the work injury.
On July 9, 2009 OWCP determined that a conflict arose in medical opinion under 5
U.S.C. § 8123(a). It referred appellant to Dr. Saeed Malekafzali, a Board-certified orthopedic
surgeon selected as a referee physician. On July 28, 2009 appellant submitted a July 2, 2009
report from Dr. David Morrison, an orthopedic surgeon, who provided a history of shoulder
problems since 1989 and stated, “These are work-related injuries.” Dr. Morrison provided
results on examination and diagnosed massive bilateral rotator cuff tears.
In a report dated October 12, 2009, Dr. Malekafzali reviewed the history of injury and
medical evidence and reported results on physical examination. He found that appellant had a
severe preexisting condition in both shoulders and the lumbosacral spine, which was well
documented in the medical record. The referee physician opined that these conditions were
mildly aggravated by the April 25, 2006 injury, but should have resolved in six to eight weeks
and there were no residuals of the work injuries. Dr. Malekafzali stated:
“To answer your [fourth] question,3 the patient has a normal progression of the
ruptured rotator cuff. The subjective complaints started with impingement
syndrome and osteoarthritis at the acromioclavicular joint in the mid 1990’s.
Some treatment was given including a cortisone injection and physical therapy.
Due to lack of cooperation between the patient and his physician, the progress of
this impingement syndrome developed into a ruptured rotator cuff and gradually
2

Docket No. 08-1510 (issued November 25, 2008).

3

The question posed was whether Dr. Malekafzali concurred with Dr. Ha’Eri that there was no material alteration
to the progression of the underlying shoulder and spine conditions from the April 25, 2006 work injury.

2

is reaching the end stage of this problem that we call rotator cuff
osteoarthropathy, on both sides. This was documented in 2004. The lumbar spine
was mildly aggravated and his condition of the lumbar spine, even after five
years, the x-ray is almost the same. He has a stable lumbosacral spine with
degeneration. There is a normal neurovascular evaluation of both lower
extremities. Again, the reason for this opinion is the same as I mentioned in my
history and physical and discussion.”
Dr. Malekafzali found that appellant did not have residuals of the April 25, 2006 work
injury in the shoulders.
In a report dated September 29, 2009 and received by OWCP on October 20, 2009,
Dr. Morrison provided a history and results on examination. He stated that the rotator cuff tears
were unrepairable due to atrophy and the chronic nature of the tears. Dr. Morrison stated that,
while appellant had rotator cuff tears before his April 2006 injury, he had been able to work but
following the injury he could not perform his normal job duties. He opined that this would be
considered a significant alteration in the underlying condition and an increase in the pathology.
In a letter dated November 18, 2009, OWCP advised that appellant it proposed to
terminate compensation for wage-loss and medical benefits. It explained that it found the weight
of the medical evidence rested with the referee physician and he had 30 days to respond with
additional evidence or argument.
In a letter dated December 17, 2009, appellant’s representative argued that the medical
evidence was insufficient to terminate benefits. Appellant also submitted a December 24, 2007
magnetic resonance imaging (MRI) scan report.
By decision dated February 22, 2010, OWCP terminated compensation for wage-loss and
medical benefits. It found the weight of the medical evidence was represented by the referee
physician.
On June 3, 2010 appellant submitted a May 19, 2010 letter requesting reconsideration of
his claim. He argued that a review of his own physicians would establish that his employmentrelated condition had not resolved. Appellant also submitted additional medical evidence. In a
report dated August 18, 2009, Dr. Morrison indicated that appellant had received a pain
medication injection in his left shoulder.
By decision dated August 26, 2010, OWCP reviewed the case on its merits and denied
modification of the termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.4
The right to medical benefits for an accepted condition is not limited to the period of entitlement
4

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

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to compensation for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.5
It is well established that, when a case is referred to a referee medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.6
ANALYSIS
Appellant received compensation for wage-loss and medical benefits resulting from a fall
at work on April 25, 2006. An attending physician, Dr. Spencer, advised in a February 16, 2009
report that appellant still had ongoing shoulder problems, had not returned to his preinjury status
and also had back problems that “complicated” the issue. A second opinion physician,
Dr. Ha’Eri, found that appellant’s continuing shoulder and back symptoms were due to his
underlying preexisting conditions, and the temporary aggravations caused by the work injury had
resolved. Dr. Spencer disagreed in a June 3, 2009 report, stating that appellant sustained a
permanent aggravation to his shoulders from the April 25, 2006 work injury.
FECA provides that, if there is a 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 the examination.7 This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8 In this case, the referee physician selected was Dr. Malekafzali, who
provided an October 12, 2009 report.
Dr. Malekafzali provided a detailed medical report that reviewed the medical history and
results on examination. He opined that appellant had sustained a mild aggravation of the chronic
rotator cuff tears, as well as spondylolisthesis and osteoarthritis of the lumbosacral spine from
the April 25, 2006 work injury. Based on his review of the extensive medical record and results
on examination, Dr. Malekafzali opined that residuals of the employment injury had ceased. He
found that appellant’s continuing shoulder and back complaints were caused by the underlying
chronic, degenerative conditions, not the employment injury.
As noted above, a well-rationalized opinion from a referee physician is entitled to special
weight. Section 8123(a) provides a method to resolve a conflict between an attending physician
and an OWCP physician, and OWCP followed its procedures and resolved the disagreement.
The Board finds that the opinion of Dr. Malekafzali represents the weight of the medical
evidence in this case.
On appeal, appellant states that he does not believe OWCP properly considered the
reports from Dr. Spencer and Dr. Morrison, who found his ongoing condition was employment
5

Furman G. Peake, 41 ECAB 361 (1990).

6

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

7

5 U.S.C. § 8123.

8

20 C.F.R. § 10.321 (1999).

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related. As to Dr. Spencer, his reports were considered and created a conflict in medical opinion
with Dr. Ha’Eri, the second opinion physician. Dr. Morrison also opined that there was a more
permanent aggravation to the shoulders caused by the fall at work on April 25, 2006. Appellant
initially submitted the September 29, 2009 report from Dr. Morrison on October 20, 2009, after
the conflict had been created and appellant was referred for a referee examination.
Dr. Morrison’s opinion is not of such probative value to outweigh the referee’s report or create a
new conflict.9 He did not provide a complete factual and medical history. Dr. Morrison briefly
described the fall at work, stating that appellant reported that he injured his shoulders again. In
addition, Dr. Morrison did not provide medical rationale explaining how the fall at work had
materially changed the underlying condition. The referee physician constituted the weight of the
medical evidence and OWCP met its burden of proof to terminate compensation for wage-loss
and medical benefits effective February 22, 2010.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective February 22, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2010 is affirmed.
Issued: July 13, 2011
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

9

See M.A., Docket No. 10-1814 (issued May 11, 2011).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 08-432
Issued: June 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 26, 2007 appellant, through her attorney, filed a timely appeal from
April 11 and November 6, 2007 merit decisions of the Office of Workers’ Compensation
Programs finding that she did not establish a recurrence of a medical condition. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of a
medical condition on December 26, 2006 due to her February 20, 2003 employment injury.
FACTUAL HISTORY
On March 7, 2003 appellant, then a 34-year-old city carrier, filed a claim alleging that on
February 20, 2003 she sustained an injury to her back and neck when she slipped and fell on ice.
She stopped work following her injury and returned to her regular employment around
May 20, 2003. The Office accepted the claim for cervical sprain.

Appellant filed a notice of recurrence of disability on July 18, 2004 causally related to her
February 20, 2003 employment injury. She related that she awoke from sleep with pain and
stiffness in the same area as her employment injury. By decision dated November 23, 2004, the
Office found that she had not established an employment-related recurrence of disability on
July 18, 2004.
In a report dated May 5, 2005, Dr. Mary Ann Wynd, Board-certified in family practice,
noted that appellant had been released from treatment for her February 20, 2003 employment
injury on September 7, 2004. She evaluated appellant on March 11, 2005 for shoulder and neck
pain after she pulled down the door of her work vehicle.1
On January 10, 2007 appellant filed a notice of recurrence of a medical condition on
December 26, 2006 due to her February 2003 work injury. She stopped work on December 26
and returned to work on December 27, 2006. Appellant related that she awoke with a stiff neck
on December 26, 2006. She indicated that the pain was the same as she had previously
experienced.
In a form report dated December 27, 2006, Dr. Alton J. Ball, Board-certified in
preventative medicine, diagnosed an exacerbation of cervical radiculitis and checked “yes” that
the condition was caused or aggravated by an employment activity. He found that appellant
should remain off work the rest of the day for pain management.
On January 5, 2007 Dr. Wynd found right cervical and right trapezius tenderness and
spasm on physical examination. She diagnosed cervical sprain and cervical radiculopathy with
right shoulder pain. Dr. Wynd noted that appellant’s claim was “currently in inactive status, but
injured worker is appealing this at this time.” She requested authorization for a magnetic
resonance imaging (MRI) scan study when the claim was reactivated. In a form report of the
same date, Dr. Wynd listed the history of injury as a fall on ice with “new right shoulder pain.”
She diagnosed cervical radiculopathy and checked “yes” that the condition was caused or
aggravated by employment. Dr. Wynd completed a duty status report indicating that appellant
could perform her usual employment.
On February 6, 2007 the Office requested that appellant submit a factual statement
explaining why she believed that her condition was due to her employment injury and describing
any new injuries. The Office also requested supporting medical evidence.
On February 27, 2007 Dr. Wynd discussed appellant’s history of a February 20, 2003
employment injury. She noted that a March 28, 2003 MRI scan study of the cervical spine
showed degeneration with right side nerve root encroachment at C4-5 and mild encroachment of
the left nerve root at C5-6. An electromyogram performed on April 28, 2003 showed C5 or C6
right radiculopathy. Appellant also had right shoulder degenerative changes. She currently
experienced “moderate to severe pain in the right side of her neck, right shoulder and mid upper
arm,” mild pain in the left shoulder and numbness and tingling of the right and left fingers.

1

In a decision dated July 29, 2005, the Office denied appellant’s claim that she sustained a traumatic injury to her
right shoulder on March 11, 2005 under file number 092057949.

2

Dr. Wynd recommended a right shoulder MRI scan study to “differentiate between cervical
radiculopathy and right shoulder pathology.” She stated:
“It is my medical opinion with reasonable medical probability that falling on the
ice in February of 2003 did, in fact, aggravate her preexisting degenerative joint
disease of the neck resulting in radiculopathy extending down the right upper
extremity. As the MRI [scan] [study] requested of the right shoulder has not yet
been performed, I am unable to give an opinion regarding pathology in the
shoulder related to the fall in February 2003 since we do not have a definitive
right shoulder diagnosis at this time.
“The injured worker has requested that her claim be reopened so that she may
receive appropriate medical treatment for the work[-]related injury with treating
the current conditions of cervical sprain and cervical radiculopathy.”
By decision dated April 11, 2007, the Office found that appellant had not established a
recurrence of a medical condition due to her accepted employment injury. The Office noted that
she had not provided the requested factual statement. The Office further determined that the
medical evidence was insufficiently rationalized to show a recurrence of a medical condition.
Appellant requested an oral hearing. In a report dated July 27, 2007, Dr. Wynd noted that
she experienced pain in her neck and right upper extremity subsequent to a fall on ice while at
work on February 20, 2003. Dr. Wynd again discussed the results of the diagnostic studies and
asserted:
“It is my medical opinion that falling on the ice on February 20, 2003 did in fact
aggravate her preexisting degenerative joint disease of the cervical spine which
then resulted in C5 radiculopathy involving the right upper extremity. It is my
medical opinion that these conditions should be allowed in this claim so that
injured worker may receive appropriate medical treatment for her work[-]related
injury.”
At the hearing, held on September 20, 2007, appellant related that she missed around
three or four months of work after her February 20, 2003 employment injury. She returned to
her regular employment no later than May 20, 2003. Appellant experienced two or three flare
ups of her condition from 2003 to 2006. The increased pain usually occurred after sleeping.
Appellant sought treatment in December 2006 when she experienced pain after sleeping.2 Her
attorney contended that her claim should have been accepted for cervical radiculopathy rather
than a cervical strain.
By decision dated November 6, 2007, an Office hearing representative affirmed the
November 6, 2007 decision.

2

Appellant related that she might have seen Dr. Wynd at that time for an injury which occurred when she pulled
down the door of her vehicle.

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LEGAL PRECEDENT
Section 10.5(y) of the Office’s regulations provides in pertinent part:
“Recurrence of medical condition means a documented need for further medical
treatment after release from treatment of the accepted condition or injury when
there is no accompanying work stoppage. Continuous treatment for the original
condition or injury is not considered a ‘need for further medical treatment after
release from treatment’ nor is an examination without treatment.”3
The Office’s procedure manual provides:
“After 90 days of Release from Medical Care (Again, this should be based on the
physician’s statement or instruction to return PRN or computed by the [claims
examiner] from the date of last examination.) The claimant is responsible for
submitting an attending physician’s report which contains a description of the
objective findings and supports causal relationship between the claimant’s current
condition and the previously accepted work injury.”4
ANALYSIS
The Office accepted that appellant sustained cervical strain due to a February 20, 2003
work injury when she slipped and fell on ice. Appellant stopped work following her injury and
returned to her regular employment no later than May 2003. She was released from medical
treatment on September 7, 2004. Appellant alleged that she sustained a recurrence of her
medical condition such that she required further medical treatment beginning
December 26, 2006. She related that she experienced pain in the right neck and shoulder when
she woke up from sleep. As appellant is more than 90 days of release from medical care, it is her
responsibility to submit “an attending physician’s report which contains a description of the
objective findings and supports causal relationship between [appellant’s] current condition and
the previously accepted work injury.”5
In a form report dated December 27, 2006, Dr. Ball diagnosed an exacerbation of cervical
radiculitis. He checked “yes” that the condition was caused or aggravated by an employment
activity and found that appellant should stay off work the remainder of the day. The Board has
held, however, that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion has little probative value
and is insufficient to establish a claim.6

3

20 C.F.R. § 10.5(y).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (May 2003).

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Id.

6

Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 3234 (2003).

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On January 5, 2007 Dr. Wynd diagnosed cervical sprain and cervical radiculopathy with
right shoulder pain. She requested authorization for an MRI scan study when appellant’s claim
was reactivated. In a duty status report of the same date, Dr. Wynd opined that she could
perform her usual employment. As she did not specifically address the cause of the diagnosed
cervical sprain and cervical radiculopathy, her opinion is of little probative value.7 In an
accompanying form report of the same date, Dr. Wynd listed the history of injury as a fall on ice
with “new right shoulder pain.” She diagnosed cervical radiculopathy and checked “yes” that
the condition was caused or aggravated by employment. Dr. Wynd, however, did not provide
any rationale for this finding. Medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof.8 The medical
evidence must include rationale explaining how the physician reached the conclusion he or she is
supporting.9
On February 27, 2007 Dr. Wynd reviewed the history of appellant’s February 20, 2003
work injury and the findings on diagnostic studies. She had degeneration of the cervical spine
and right shoulder. Dr. Wynd asserted that appellant’s February 20, 2003 work injury “did, in
fact, aggravate her preexisting degenerative joint disease of the neck resulting in radiculopathy
extending down the right upper extremity.” The Office, however, has not accepted an
aggravation of cervical degenerative joint disease as employment related. Where appellant
claims that, a condition not accepted or approved by the Office was due to her employment
injury, she bears the burden of proof to establish that the condition is causally related to the
employment injury through the submission of rationalized medical evidence.10 Dr. Wynd did not
provide any rationale for her opinion that the work injury aggravated a preexisting cervical
condition. Medical conclusions unsupported by rationale are of little probative value.11
In a report dated July 27, 2007, Dr. Wynd noted that appellant experienced pain in her
neck and right upper extremity subsequent to a fall on ice while at work on February 20, 2003.
She opined that her work injury aggravated preexisting cervical degenerative joint disease which
caused radiculopathy at C5. Dr. Wynd requested that the Office expand acceptance to include
the diagnosed conditions. As noted, it is appellant’s burden to submit rationalized medical
evidence supporting that her aggravation of preexisting degenerative joint disease and resulting
radiculopathy are employment related. Dr. Wynd did not explain how the fall three years earlier
caused the diagnosed aggravation and radiculopathy; thus, her opinion is of little probative
value.12

7

Conard Hightower, 54 ECAB 796 (2003) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).
8

Sedi L. Graham, 57 ECAB 494 (2006).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

11

Willa M. Frazier, 55 ECAB 379 (2004); Jimmie H. Duckett, 52 ECAB 332 (2001).

12

See Cecelia M. Corley, 56 ECAB 662 (2005) (a medical opinion not fortified by rationale is of diminished
probative value).

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An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.13 She must submit a physician’s report in which the physician reviews those
factors of employment identified by her as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.14 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of a
medical condition on December 25, 2006 due to her February 20, 2003 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 6 and April 11, 2007 are affirmed.
Issued: June 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13

Robert Broome, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

14

See Robert Broome, supra note 13.

6


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

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

Docket No. 21-1025
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a June 1, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the $69,177.66
overpayment of compensation which occurred due to his concurrent receipt of Social Security
Administration (SSA) retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018; and (2) whether OWCP properly required recovery of
the overpayment by deducting $400.00 from appellant’s continuing compensation payments every
28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught on a black residue under his desk as he rose from his chair while in the performance
of duty. He stopped work on August 29, 2001. OWCP accepted the claim for right knee strain
and right knee medial meniscus tear. The record reflects that OWCP paid appellant wage-loss
compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it would have to deduct at least part of his SSA
retirement benefit to which he would be entitled based on age, explaining that a portion of a FERS
benefit was included in SSA retirement benefits. Appellant was, therefore, advised to notify
OWCP immediately after filing for or receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP, noting appellant’s SSA age-related retirement benefit rates with and without
FERS. It noted that appellant began receiving retirement benefits effective September 2010.
In a FERS offset overpayment calculation form dated May 21, 2018 OWCP documented
its calculation of the total overpayment in the amount of $69,177.66 for the period September 1,
2010 until April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working for the Federal Government,
and this portion of his SSA was a prohibited dual benefit. OWCP found him at fault in the creation
of the overpayment as he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It informed him of his review rights, via an overpayment action request form, and instructed him
to complete an enclosed overpayment recovery questionnaire Form OWCP-20 and submit
supporting documentation including copies of tax returns, bank account statements, bills and
cancelled checks, pay slips, and other records which supported the income and expenses listed.
OWCP allotted 30 days for him to respond.
On a July 2, 2018 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. He contested OWCP’s findings regarding the fact and
amount of overpayment, and requested waiver of recovery of the overpayment.

2

Docket No. 19-0334 (issued August 7, 2020).

2

On a Form OWCP-20 dated October 10, 2018, appellant noted total monthly income of
$4,312.22 and total monthly expenses of $3,547.61, with assets of $795.00. He attached financial
information to substantiate his expenses.
A prerecoupment hearing was held on October 10, 2018. By decision dated November 14,
2018, the OWCP hearing representative finalized the preliminary determination, finding that an
overpayment of compensation in the amount of $69,177.66 occurred for the period September 1,
2010 through April 28, 2018 because appellant received FECA benefits and benefits from SSA
without the appropriate offset.3 She further found he was at fault in the creation of the overpayment
because he failed to report his SSA retirement benefits and that recovery of the overpayment,
therefore, could not be waived. The hearing representative found that recovery of the overpayment
would be made by deducting $500.00 every 28 days from appellant’s continuing FECA
compensation payments.
Appellant appealed the November 14, 2018 decision to the Board on November 30, 2018.
By decision dated August 7, 2020,4 the Board affirmed in part and set aside in part the
November 14, 2018 decision. The Board found that OWCP properly determined that an
overpayment in the amount of $69,177.66 had been created because appellant concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018. The Board determined, however, that appellant was
without fault in the creation of the overpayment of compensation. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment.
On remand from the Board’s decision, OWCP provided appellant with another Form
OWCP-20 for his completion, noting that updated financial information was needed for
consideration of waiver of recovery of the overpayment.
In a letter dated February 8, 2021, OWCP’s hearing representative informed appellant that
an oral hearing would be held pursuant to the Board’s remand instructions to consider waiver of
recovery of the overpayment. She requested he complete an updated Form OWCP-20 and provide
supporting financial documentation. Appellant was informed that under 20 C.F.R. § 10.438 the
failure to submit the requested financial information would result in denial of waiver of the
overpayment.
On a Form OWCP-20 dated March 1, 2021, appellant noted monthly income of $2,760.00
from SSA and $144.14 from other benefits, for a total monthly income, without FECA benefits,
of $2,904.14. He listed monthly expenses of $3,490.00, which included $860.00 for rent, $500.00
for food, $100.00 for clothing, $605.00 for utilities, and $225.00 for miscellaneous expenses, he
also noted $1,000 in monthly installment payments to a credit union , and $200.00 in monthly
installment payments to a bank. He listed assets of $4,687.90. He attached numerous financial
documents to substantiate his expenses.

3

The Board notes that the hearing representative incorrectly identified the period of the overpayment as from
September 1, 2010 through December 1, 2017.
4

Supra note 2.

3

A hearing before an OWCP hearing representative was held on March 10, 2021.
By decision June 1, 2021, OWCP’s hearing representative found that, based on the
evidence appellant submitted regarding his income and expenses, his total monthly income was
$4,510.54 and his ordinary and necessary living expenses did not exceed $ 3,886.99. She
determined that recovery of the overpayment would not defeat the purpose of FECA as his monthly
income exceeded his monthly expenses by more than $50.00. The hearing representative further
found that there was no evidence that appellant relinquished a valuable right in reliance on the
additional compensation or changed his position for the worse in reliance on the erroneous
compensation payment such that recovery would be inequitable or against good conscience. The
hearing representative related that recovery of the overpayment would be made by deduction of
$400.00 every 28 days from appellant’s continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA 5 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 7 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. 8
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such

5

Supra note 1.

6

J.T., Docket No. 21-0010 (issued September 30, 2021); G.L., Docket No. 19-0297 (issued October 23, 2019).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide those assets must not exceed a resource base of
$6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) and (3) (September 2020).
8

Id. at Chapter 6.400.4b(3)(a), (b).

4

payments or on notice that such payments would be made, gives up a valuable right or cha nges
her position for the worse. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board notes that after it remanded the case to OWCP for consideration of waiver,
OWCP provided appellant with another Form OWCP-20 to complete with updated financial
information. A prerecoupment hearing was held on March 10, 2021.
As appellant was found to be without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. The hearing
representative noted that the financial documentation appellant submitted prior to the hearing
represented his current monthly income and expenses. OWCP considered app ellant’s updated
financial information, as reported on appellant’s Form OWCP 20, to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
The evidence of record establishes that appellant has monthly income totaling $4,510.54
and average monthly necessary expenses totaling $3,886.99. Appellant’s monthly income,
therefore, exceeds his monthly expenses by $623.55. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, he has not established that he needs
substantially all of his income for ordinary and necessary living expenses. 10
Appellant also has not established that recovery of the overpayment would b e against
equity and good conscience. He has not submitted evidence that he would experience severe
financial hardship in attempting to repay the debt, or that in reliance on the overpayment he gave
up a valuable right or changed his position for the worse.11 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,

9

20 C.F.R. § 10.437(b)(1).

10

See G.L., Docket No. 19-0297 (issued October 23, 2019).

11

J.T., supra note 6; L.D., Docket No. 18-1317 (issued August 17, 2019); William J. Murphy, 41 ECAB 569 (1989).

5

taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method would minimize resulting
hardship. The Board finds that OWCP gave due regard to the financial information provided,
noting that appellant was not deemed to need substantially all of his monthly income to meet
current and ordinary living expenses as monthly income exceeds monthly expenses by $623.55.
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment. The
Board also finds that OWCP properly required repayment of the overpayment by deduction of
$400.00 every 28 days from his continuing compensation payments.

12

20 C.F.R. § 10.441(a); J.T., supra note 6; A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler,
39 ECAB 1056, 1062 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wausau, WI, Employer
__________________________________________

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

Docket No. 07-2419
Issued: April 15, 2008

Case Submitted on the Record

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

JURISDICTION
On September 27, 2007 appellant filed a timely appeal from a September 18, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her claim for compensation
and a September 20, 2007 merit decision retroactively finding that she had no loss of wageearning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she was disabled beginning
August 31, 2006 causally related to her employment; and (2) whether the Office properly found
retroactively that her actual earnings effective February 23, 2006 fairly and reasonably
represented her wage-earning capacity.
FACTUAL HISTORY
On March 15, 2002 appellant, then a 31-year-old automation clerk, filed an occupational
disease claim alleging that she sustained pain in the neck area from sweeping above her

shoulders and performing repetitive work with the right arm. The Office accepted her claim for
cervical strain. Appellant worked limited duty beginning around March 2002.
On August 25, 2003 appellant requested that the Office expand acceptance of her claim
to include thoracic outlet syndrome. She submitted an April 30, 2003 report from her attending
physician, Dr. Lester Owens, an osteopath and Board-certified physiatrist, who diagnosed
bilateral thoracic outlet syndrome, right greater than left, due to employment activities.
On March 4, 2006 appellant accepted a limited-duty position as a modified manual clerk
with restrictions against lifting over 10 pounds and overhead work with her right hand. On
September 1, 2006 she filed a notice of recurrence of disability beginning August 31, 2006
causally related to her accepted employment injury.
Appellant stopped work on
August 31, 2006. She attributed her recurrence of disability in part to performing her limitedduty employment. Appellant indicated that she had experienced a previous recurrence of
disability on March 31, 2004.
In a report dated October 11, 2006, Dr. Owens discussed appellant’s history of recurring
neck, back and shoulder girdle pain following a 2002 employment injury. Appellant experienced
pain performing her current work duties. Dr. Owens diagnosed cervicobrachial syndrome which
he found was a “reaggravation of a preexisting condition following work exposure in the month
preceding [appellant’s] August 31, 2006 reported work injury….” He also diagnosed thoracic
outlet syndrome and hypermobility syndrome. Dr. Owens opined that appellant was disabled
until October 10, 2006 and could resume sedentary work for four hours per day starting
October 11, 2006.
By decision dated November 16, 2006, the Office found that appellant failed to establish
that she sustained an employment-related recurrence of disability beginning August 31, 2006.
On November 20, 2006 appellant requested a review of the written record. She submitted
reports dated from December 2006 through February 2007 from Dr. Owens, who diagnosed
cervicobrachial syndrome and thoracic outlet syndrome and opined that she could work part time
with restrictions.
In a decision dated March 20, 2007, an Office hearing representative set aside the
November 16, 2006 decision. She found that the Office had not sufficiently developed whether
appellant sustained thoracic outlet syndrome due to employment factors. The hearing
representative instructed the Office to refer appellant for a second opinion examination regarding
whether she had any additional employment-related conditions and whether her disability
beginning August 31, 2006 was due to her employment injury.
On May 16, 2007 the Office referred appellant to Dr. Paul A. Cederberg, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated June 25, 2007,
Dr. Cederberg reviewed the statement of accepted facts and listed findings on examination. He
noted that appellant had “obliteration of the right radial pulse with abduction of the arm, left
lateral rotation and Valsalva maneuver.” Dr. Cederberg stated:
“My assessment of [appellant’s] upper extremity is that she has a right thoracic
outlet syndrome, neck strain and probable cervical disc syndrome. She has a

2

positive Adson test on the right for thoracic outlet syndrome. [Appellant’s] neck
complaints and injections suggest that she has cervical disc syndrome, but her
diagnostic workup has been inadequate. Dr. Owens has diagnosed her with
hypomobility syndrome meaning that she has range of motion of her neck well
beyond the normal limits and I agree with that.”
Dr. Cederberg opined that appellant’s subjective complaints were supported by the
objective findings. He found that there was a causal relationship between the diagnosed
conditions and her employment duties. Dr. Cederberg determined that appellant could work
eight hours per day with restrictions against using her right arm above shoulder level or lifting
over 10 pounds with the right arm.
On July 12, 2007 the Office notified appellant that it had expanded acceptance of her
claim to include thoracic outlet syndrome and hypermobility syndrome.1 The Office noted that
Dr. Cederberg diagnosed probable cervical disc syndrome but found that appellant’s neck
condition had not been sufficiently evaluated. The Office informed appellant that a conflict
existed between Dr. Owens and Dr. Cederberg regarding the number of hours that she could
work. The Office indicated that it would request that the physician selected to resolve the
conflict address whether appellant had cervicobrachial syndrome.
The Office referred appellant on July 26, 2007 to Dr. Stephen F. Weiss, a Board-certified
orthopedic surgeon, for an impartial medical examination. The Office requested that Dr. Weiss
assess appellant’s upper extremities, neck and back and “[s]pecifically state” whether he
believed that she had cervicobrachial syndrome. The Office further requested that Dr. Weiss
comment on appellant’s work restrictions if he believed that there was a causal relationship
between the diagnosed conditions and her employment. The Office additionally asked Dr. Weiss
to discuss whether she had any disability from employment as of August 31, 2006 and explain
the basis for his opinion.
In a report dated September 13, 2007, Dr. Weiss reviewed the medical records and
discussed appellant’s current complaints. On examination, he found a positive Adson test on the
right, a positive Phalen’s test over the right middle and ring fingers and a positive Tinel sign over
the Guyon’s canal. Dr. Weiss found normal cervical range of motion and uncomfortable but
“not classically positive” Spurling maneuvers. He diagnosed right thoracic outlet syndrome and
possible cervical degenerative disc disease. Dr. Weiss opined that, based on the examination, he
“was suspicious that her symptomatology might also be related to a carpal tunnel or Guyon canal
syndrome, but diagnostic studies have not been performed.” He noted that he should discuss
work restrictions if he found the diagnosis due to appellant’s employment. Dr. Weiss opined that
she could work full time with restrictions. In response to the Office’s request for a reasoned
opinion whether appellant was incapable of working in her March 4, 2006 limited-duty position
for eight hours beginning August 31, 2006, Dr. Weiss stated: “I believe she could have
performed the described work activities for [eight] hours a shift, provided she did not have to lift
in excess of 10 pounds frequently and 20 pounds occasionally.”
1

The Office indicated that Dr. Cederberg diagnosed hypomobility instead of hypermobility syndrome but found
that this was a typographical error.

3

By decision dated September 18, 2007, the Office found that appellant had not
established that she sustained a recurrence of disability beginning August 31, 2006 such that she
could not perform full-time work.
In a decision dated September 20, 2007, the Office found that appellant had no loss of
wage-earning capacity based on its retroactive determination that her actual earnings beginning
February 23, 2006 fairly and reasonably represented her wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim
was filed within the applicable time limitation of the Act; that an injury was sustained while in
the performance of duty as alleged; and that any disability and/or specific condition, for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.3
Section 8123(a) provides that, 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.4 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.5
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.6
In situations where the Office secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the

2

5 U.S.C. §§ 8101-8193.

3

Calvin E. King, 51 ECAB 394 (2000); Caroline Thomas, 51 ECAB 451 (2000).

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321.

6

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

4

specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case should be
referred to another appropriate impartial medical specialist.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical strain due to factors of her federal
employment. She worked limited duty beginning February 27, 2002. Appellant accepted a
limited-duty position on March 4, 2006 which restricted lifting to 10 pounds and required no
overhead work with the right arm. On August 25, 2003 she had previously requested that the
Office expand acceptance of her claim to include thoracic outlet syndrome. On September 1,
2006 appellant alleged that she sustained a recurrence of disability beginning August 31, 2006
causally related to her accepted employment injury. She attributed her recurrence, in part, to
performing her work duties after February 2002. Appellant stopped work on August 31, 2006
and returned to limited-duty employment for four hours per day on October 11, 2006. As she
attributed her recurrence of disability, in part, to new work duties, her claim is for a new injury
rather than a recurrence of disability.8
On October 11, 2006 Dr. Owens, appellant’s attending physician, diagnosed
employment-related cervicobrachial syndrome and also thoracic outlet syndrome and
hypermobility syndrome. He found that she was disabled until October 10, 2006 and could
resume sedentary work for four hours per day on October 11, 2006. On June 25, 2007
Dr. Cederberg, an Office referral physician, diagnosed thoracic outlet syndrome on the right side,
neck strain and probable cervical disc syndrome. He indicated that her symptoms “suggest that
she has cervical disc syndrome, but her diagnostic workup has been inadequate.” Dr. Cederberg
found that appellant’s subjective complaints were supported by the objective findings and that
there was a causal relationship between the diagnosed conditions and her employment duties.
He determined that she could work eight hours per day with restrictions of not using her right
arm above shoulder level or lifting over 10 pounds with the right arm.
Based on Dr. Cederberg’s opinion, the Office expanded acceptance of appellant’s claim
to include thoracic outlet syndrome and hypermobility syndrome. The Office found that there
was a conflict in medical opinion between Dr. Owens and Dr. Cederberg on the extent of her
disability. The Office referred appellant to Dr. Weiss for resolution of the conflict and to address
the issue of whether she had cervicobrachial syndrome.
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9 In a report dated September 13, 2007, Dr. Weiss
7

See Guiseppe Aversa, 55 ECAB 164 (2003).

8

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 had resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness.” 20 C.F.R. § 10.5(x). An
occupational disease is defined as a condition produced by the work environment over a period longer than a single
workday or shift.” 20 C.F.R. § 10.5(q).
9

See David W. Pickett, supra note 6.

5

reviewed the medical records and listed findings on examination of a positive Adson test on the
right, a positive Phalen’s test over the right middle and ring fingers, a positive Tinel sign over the
Guyon’s canal and uncomfortable but not positive Spurling’s maneuvers. He diagnosed right
thoracic outlet syndrome and possible cervical degenerative disc disease. Dr. Weiss found that
appellant required further diagnostic studies to determine whether she had carpal tunnel or
Guyon canal syndrome. He opined that appellant could work full time in a limited-duty
capacity. Regarding the question of whether she was disabled from full-time employment
beginning August 31, 2006, Dr. Weiss related: “I believe [that] she could have performed the
described work activities for [eight] hours a shift, provided she did not have to lift in excess of
10 pounds frequently and 20 pounds occasionally.” He did not, however, provide any rationale
for his finding that appellant could work full time from August 31, 2006 onward. The Office
requested that he explain the basis for any disability finding. Instead, while Dr. Weiss made
statements regarding disability that were clear and unequivocal, he failed to offer medical
reasoning in support of his conclusions.10 The certainty with which he expressed his opinion
cannot overcome the lack of medical rationale.11 The Board has held that medical conclusions
unsupported by rationale are of little probative value.12 As Dr. Weiss failed to provide rationale
for his disability finding, the Office should have requested clarification from the physician.
Additionally, the Office asked that Dr. Weiss “specifically state” whether appellant sustained
cervicobrachial syndrome. He diagnosed possible cervical degenerative disc disease and
determined that her cervical symptoms may be due to carpal tunnel syndrome or Guyon canal
syndrome. Dr. Weiss opined that further testing would be required to determine the nature of her
condition. He thus did not sufficiently address the issue of whether appellant sustained
cervicobrachial syndrome.
In situations where the Office secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the
specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case should be
referred to another appropriate impartial medical specialist.13 As the Office referred appellant to
Dr. Weiss, it has the duty to obtain a report sufficient to resolve the issues raised and the
questions posed to the specialist. The case, consequently, is remanded for the Office to obtain a

10

See Elaine Sneed, 56 ECAB 373 (2005).

11

See Willa M. Frazier, 55 ECAB 379 (2004).

12

Jimmy H. Duckett, 52 ECAB 332 (2001).

13

See Guiseppe Aversa, 55 ECAB 164 (2003).

6

supplemental report from Dr. Weiss. Following this and such further development deemed
necessary, the Office should issue an appropriate decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 20 and 18, 2007 are set aside and the case is remanded
for further proceedings consistent with this opinion of the Board.
Issued: April 15, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

In view of the Board’s disposition of the issue of whether appellant sustained disability beginning August 31,
2006 due to her employment, it is premature to address the retroactive loss of wage-earning capacity determination.
The Board has held that it is inappropriate to issue a retroactive wage-earning capacity determination when there is a
pending claim for compensation from the time of the work stoppage. Juan A. DeJesus, 54 ECAB 721 (2003). The
Office’s procedure manual provides that a retroactive loss of wage-earning capacity determination may be made
where the claimant worked in the position for at least 60 days, the employment fairly and reasonably represented his
or her wage-earning capacity and the work stoppage did not occur because of any change in the claimant’s injuryrelated condition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining WageEarning Capacity, Chapter 2.814.7(e) (May 1997).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Big Lake, CA, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1510
Issued: February 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 19, 2016 appellant, through counsel, filed a timely appeal of a February 12, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her left hip
condition was causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2013 appellant, then a 52-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that her work duties aggravated a left hip condition. She
stated that she first became aware of the condition on August 19, 2011, but did not realize it had
been caused or aggravated by her loading and unloading a postal vehicle six times per day until
January 5, 2012.
In an October 21, 2013 report, John Buirice, a physician assistant, noted appellant’s
history of injury, provided examination findings, and reviewed x-ray reports. He related that she
began having hip problems approximately five years ago. Mr. Buirice diagnosed severe hip
degenerative arthritis and recommended possible hip replacement. In a note dated October 16
2013, he indicated that appellant could return to work on October 21, 2013.
Dr. Dana G. Seltzer, a Board-certified orthopedic surgeon, in a November 18, 2013
report, reviewed appellant’s x-ray reports and diagnosed bilateral femoroacetabular
impingement. He reported that her left hip had more advanced arthritis than her right hip.
Dr. Seltzer noted that appellant had been employed as a letter carrier for approximately 25 years,
provided a brief description of the employment duties, and concluded that she was disabled from
performing those duties. He concluded that her hip problems had been caused by her
employment due to the lack of any history of a prior hip injury.
In correspondence dated December 18, 2013, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her as to the medical and
factual evidence needed to establish her claim and afforded her 30 days to provide this
information.
On January 2, 2014 Dr. Seltzer diagnosed labral tear with femoroacetabular
impingement, which combined to cause hip arthritis.
By decision dated January 22, 2014, OWCP denied appellant’s claim as it found that she
had failed to establish fact of injury. It found that the medical evidence submitted by appellant
failed to contain any diagnosis of a left hip condition.
In an August 13, 2014 letter, Linda Warda, a registered nurse (RN), reported diagnoses of
osteoarthritis and denial of a hip magnetic resonance imaging scan. She informed appellant that
her hip problem appeared to be employment related.
In a September 9, 2014 report, Dr. Paul D. Burton, an osteopathic Board-certified
orthopedic surgeon, diagnosed left hip osteoarthritis with an element of developmental dysplasia
of the hip, lumbar spine degenerative disc disease and scoliosis, low back pain, and narcotic
dependence with use of fentanyl patch. Under history of illness, he noted that appellant injured
her back at work on July 23, 2014 as the result of twisting her body while moving a box.
Dr. Burton noted that she related having a 2011 workers’ compensation claim for her left hip and
that her current work duties aggravated her hip pain. A physical examination of the left hip
revealed no swelling, skin lesions, masses or abnormal skin discoloration, and mild degree of
diffuse lumbar paraspinal tenderness, and lumbar spine scoliotic curvature. Dr. Burton

2

diagnosed complete loss of left hip joint space with hip developmental dysplasia, lumbar
degenerative disc disease, and left hip and acetabulum subchondral cysts based on a June 12,
2014 x-ray interpretation. He concluded that appellant was totally disabled and her work
activities had aggravated her hip pain.
On October 7, 2014 appellant requested reconsideration.
In a September 22, 2014 report, Dr. Christopher H. Fagan, a Board-certified emergency
room physician, noted that appellant had been evaluated by Dr. Burton. He opined that her hip
condition was due to her getting in and out of her car while on her mail route. Dr. Fagan
explained appellant’s “job has been somewhat contributory to her symptomatology, if not the
chronic arthritis of her hip.”
By decision dated January 5, 2015, OWCP found that the medical evidence of record was
sufficient to establish a diagnosed medical condition, but remained insufficient to establish that it
was causally related to the identified work factors.
In letters dated January 15, 2015 and February 5, 2016, counsel requested
reconsideration. He argued that Dr. Burton’s September 9, 2014 report and Dr. Fagan’s
September 22, 2014 report were sufficient to establish further development of the evidence.
By decision dated February 12, 2016, OWCP denied modification. It found the evidence
insufficient to establish that appellant’s left hip condition had been caused or aggravated by her
employment and did not warrant further development of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed hip conditions are causally related to her federal employment duties.
Appellant was treated by Dr. Seltzer who diagnosed labral tear with femoroacetabular
impingement and hip arthritis. Dr. Seltzer noted that she had been employed for 25 years as a
letter carrier and opined that her employment caused her hip problems as she had no history of a
hip injury. In a report dated September 9, 2014, Dr. Burton provided examination findings and
reviewed a July 12, 2014 x-ray interpretation. He diagnosed left hip osteoarthritis, hip
developmental dysplasia, lumbar spine degenerative disc disease, low back pain, and narcotic
dependence with use fentanyl patch. Dr. Burton opined that appellant was totally disabled and
that her work activities aggravated her hip pain. Dr. Fagan, in a September 22, 2014 report,
attributed her hip condition as being aggravated by her getting in and out of her car while on her
mail route. Although Dr. Burton, Dr. Fagan, and Dr. Seltzer supported causal relationship, they
did not provide sufficient medical rationale explaining the basis of their opinion regarding the
causal relationship between appellant’s diagnosed conditions and her work duties.10 None of the
physicians explained how her duties as a letter carrier or getting in and out of a car would have
physiologically caused or aggravated the diagnosed left hip conditions.11 A medical report is of

6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

F.T., Docket No. 09-919 (issued December 7, 2009); Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H.
Duckett, 52 ECAB 332 (2001).
11

E.M., Docket No. 16-1335 (issued November 22, 2016).

4

limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.12
Appellant also submitted a report and disability notes from Mr. Buirice, a physician
assistant, and an August 13, 2014 letter from RN Warda indicating that appellant’s hip problem
had been caused by her employment. However, the letter, report, and disability notes have no
probative value as they do not qualify as medical evidence. Physician assistants and nurses are
not considered physicians under FECA.13
On appeal counsel asserts that OWCP improperly denied the claim and that the medical
evidence of record is sufficient evidence to warrant further development of the evidence on the
issue of whether appellant’s left hip condition had been caused or aggravated by loading and
unloading a postal vehicle multiple times during the day. As found above, the medical evidence
of record is insufficient to establish that her diagnosed conditions are causally related to her
employment duties. Appellant has not submitted a physician’s report, based on a complete
medical and factual history, which explains how her work activities caused or aggravated a left
hip condition.14 She has therefore not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her left
hip condition was causally related to factors of her federal employment

12

Id.

13

5 U.S.C. § 8101(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 B.B., Docket No. 09-1858 (issued April 16, 2010) (nurses are not physicians under FECA; see
L.L., Docket No. 13-829 (issued August 20, 2013) (physician assistants are not physicians under FECA, therefore,
their reports are of limited probative medical value; Roy L. Humphrey, supra note 6.
14

Supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 12, 2016 is affirmed.
Issued: February 2, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, WILLIAM P. HOBBY
AIRPORT, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 08-68
Issued: April 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 9, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 20, 2006 that denied his stress-related claim
and a September 12, 2007 decision that denied his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a stress-related condition in the performance of duty causally related to factors of his
federal employment; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On April 13, 2006 appellant, then a 37-year-old deputy federal security director of
operations, filed an occupational disease claim alleging that he sustained abdominal pain, ulcers,
anxiety, stress and depression caused by working in a stressful environment. He stopped work
on April 12, 2006 when he became ill and was taken to the emergency room and treated for
stress-related symptoms.
In letters dated May 1, 2006, the Office informed appellant of the evidence needed to
support his claim. It asked that the employing establishment respond to his claim. The
employing establishment controverted the claim and submitted appellant’s job description.
Vernon J. Baker, federal security director, stated that on February 13, 2006 he received a
Freedom of Information Act (FOIA) request and on February 14, 2006, notified appellant of the
request and granted him two extensions to comply but he did not respond. Mr. Baker stated that
on March 18, 2006 he was notified that the information was overdue and both he and Diane Silva
contacted appellant, advising him that the materials were needed that day. He stated that
appellant did not inform him that he was on leave and out of town and noted that appellant left
work abruptly on April 12, 2006, stating that he was ill.
By decision dated August 10, 2006, the Office denied the claim, finding that appellant
failed to establish that he sustained an emotional condition in the performance of duty.
On August 23, 2006 appellant requested reconsideration and referenced an Equal
Employment Opportunity (EEO) Commission complaint that he had filed. In discharge
instructions dated April 12, 2006, Dr. Victor Flagiello, a Board-certified osteopath specializing
in family medicine, diagnosed abdominal pain and pancreatitis. In medical reports dating from
February 22 to August 21, 2006, Dr. P.K. Roy, a Board-certified psychiatrist, noted appellant’s
complaints of stress due to working in a hostile environment. He diagnosed depression and
anxiety.
Appellant submitted an e-mail dated April 12, 2006 sent by him requesting assistance
regarding his complaints of a hostile work environment. He alleged that he was harassed by
Mr. Baker and had been working in a hostile work environment since his arrival in 2003.
Appellant noted that, on March 18, 2006, when he was out of town, he was contacted by
Mr. Baker who notified him to respond to a FOIA request that day. He was forced to cancel his
trip and return to Houston. Appellant stated that he had been on leave since March 5, 2006 and
had not had the opportunity to review the request as he had not been at work except on
March 16, 2006, when he was interviewed by a management inquiry team. He attempted to
comply with the request on March 18, 2006 but could not locate the relevant information.
Appellant was then out of the office again concerning a family emergency until April 6, 2006.
When he returned, he found that his computer hard drive had been inappropriately confiscated.
Appellant additionally stated that he was not privy to information, such as surveys conducted by
the ombudsman’s office, normally provided to senior management, and that Mr. Baker had not
addressed appellant’s complaints regarding false accusations and inappropriate remarks by staff
and management. An EEO specialist responded that, if appellant felt he had been discriminated
against, he should file an EEO claim. On April 13, 2006 appellant noted that he had been taken
to the emergency room the previous day.

2

In a grievance memorandum dated April 16, 2006, addressed to Mr. Baker, appellant
stated that he had no knowledge prior to Mr. Baker’s telephone call regarding the FOIA request.
He characterized Mr. Baker’s request as malicious, in that it led to the early termination of his
leave, did not provide him adequate time to complete a suitable search, and that other staff
members were allotted more time to comply. Appellant reiterated his belief that his computer
hard drive was inappropriately confiscated. On May 23, 2006 Mr. Baker advised appellant that
in accordance with employing establishment policies, his concerns regarding the FOIA request
were excluded from the grievance process. He was not aware that appellant’s hard drive was
being confiscated until internal affairs arrived at the employing establishment. Mr. Baker
concluded that appellant should grieve this matter with internal affairs, who confiscated his hard
drive.
By decision dated November 20, 2006, the Office denied modification of the August 10,
2006 decision.
In an undated statement, received by the Office on July 3, 2007, appellant requested
reconsideration. He alleged that materials he provided showed that it became increasingly
difficult for him to perform his work duties beginning in 2005 due to distractions, interference
and restrictions placed on him by management. Appellant alleged that he was harassed by Rufus
Davison and Mr. Baker, that he was the brunt of gossip, and that he did not receive e-mails when
he should and that he was wrongfully terminated. He referenced a February 8, 2006 e-mail in
which Mr. Baker stated:
“The situation here at Hobby is shameful. It points to the age-old premise that
[b]lacks can[no]t work together and SHOULD NOT be put in management
positions because we are n[o]t smart enough or whatever reason. Have I made
some mistakes here, yes. I [a]m not perfect, and we work in a nonperfect
environment. As [b]lack men in an organization such as this we are the laughing
stock of TSA and what do you think our employees and staff [think]. We are
assisting them in proving their opinions of blacks as a whole. We are our own
worse enemy.”
Appellant also submitted copies of e-mails and policies that concerned a reorganization
of the employing establishment, his complaints regarding derogatory e-mails and voice mails left
on his telephone.1 The affidavits from Rose O’Neill, Athena Perkins, Kenneth Jolley, Helen
Williams and Yolanda Robinson, coworkers, attested that they had witnessed appellant being
harassed by Mr. Baker and Mr. Davison, who would refer to him in a disparaging, crude manner
and send rude and unprofessional e-mails. They stated that appellant’s attendance records were
more closely scrutinized than others and that he was required to document his absences when
others were not. His coworkers indicated that he was inappropriately excluded from meetings
and e-mails, that his security clearance was inappropriately removed, that his subordinates were
disrespectful to him, that he was forced to cancel leave, and a pay raise was inappropriately
1

Many of appellant’s allegations and the supportive documentation provided are in reference to events that
occurred after the claimed emotional condition. The record supports that the employing establishment was subject
to a mandated realignment in 2006. At that time appellant was separated subject to a reduction-in-force, effective
September 30, 2006.

3

cancelled. Ms. Perkins addressed a telephone conversation regarding appellant’s sexual
orientation. Mr. Jolley noted that he heard disparaging voice mails left on appellant’s telephone,
that he overheard Ron Peay curse at appellant, and that appellant’s computer was inappropriately
confiscated. Ms. Williams noted that she witnessed Mr. Davison following appellant around the
office and airport in a motor vehicle, that appellant had to hide to avoid Mr. Davison, that she
overheard heated discussion between appellant and Mr. Davison, and that Mr. Davison prevented
appellant from speaking with his subordinates.2
In a nonmerit decision dated September 12, 2007, the Office denied appellant’s
reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
To establish a stress-related condition in the performance of duty, appellant must submit
the following: (1) medical evidence establishing that he has an emotional or stress-related
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.6 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.7 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.8

2

Appellant, Mr. Baker and Mr. Davison are African American.

3

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

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

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

7

Lillian Cutler, supra note 4.

8

Roger Williams, 52 ECAB 468 (2001).

4

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.10
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. A claimant must establish
a factual basis for his or her allegations with probative and reliable evidence. Grievances and
EEO complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred. Where an employee alleges harassment and cites specific incidents, the Office or other
appropriate fact finder must determine the truth of the allegations. The issue is not whether the
claimant has established harassment or discrimination under EEO standards. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to factors of his
federal employment.
Other than generally alleging harassment, appellant submitted no description of claimed
employment factors at the time he filed his claim and did not respond to the Office’s May 1,
2006 development letter. With his August 23, 2006 reconsideration request, appellant alleged
that he was inappropriately contacted by Mr. Baker on March 18, 2006 while he was on leave
regarding a FOIA request. Mr. Baker, however, advised that appellant was initially asked to
comply with the request on February 14, 2006 and was given several extensions. Generally,
complaints about the manner in which a supervisor performs his or her duties or the manner in
which a supervisor exercises his or her discretion fall, as a rule, outside the scope of coverage
provided by the Act. This principle recognizes that a supervisor or manager in general must be
allowed to perform his duties and employees will, at times, dislike the actions taken. Mere
disagreement or dislike of a supervisory or managerial action will not be compensable, absent
evidence of error or abuse.12 Absent error or abuse, the assignment of work is an administrative
function of the employer and the manner in which a supervisor exercises his or her discretion
9

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

10

Kim Nguyen, 53 ECAB 127 (2001).

11

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

12

T.G., 58 ECAB ____ (Docket No. 06-1411, issued November 28, 2006).

5

falls outside the ambit of the Act.13 Although the handling of leave requests and attendance
matters are generally related to employment, they too are administrative functions of the
employer and not duties of the employee,14 and perceptions of unfair treatment are not enough to
establish error or abuse. A claimant must submit proof that management did in fact commit error
or abuse.15 In determining whether the employing establishment erred or acted abusively, the
Board has examined whether the employing establishment acted reasonably.16 The Board finds
that Mr. Baker exercised reasonable supervisory discretion in asking that appellant comply with
the FOIA request on March 18, 2006. Mr. Baker had initially requested the information on
February 14, 2006 and did not know appellant was out of town on March 18, 2006. Appellant
therefore failed to establish a compensable factor of employment in this administrative matter.17
Appellant indicated that he had filed a grievance and/or EEO claim. In assessing the
evidence, the Board has held that grievances and EEO complaints, by themselves, do not
establish that workplace harassment or unfair treatment occurred.18 In this case, appellant
submitted insufficient evidence. He included an e-mail in which he outlined his concerns
regarding Mr. Baker’s actions on March 18, 2006 and an allegation that his computer hard drive
had been inappropriately confiscated.
Appellant included a response from an EEO
representative advising him that, if he felt he had been discriminated against, he should file an
EEO claim. He also submitted a grievance memorandum dated April 16, 2006 addressed to
Mr. Baker regarding the FOIA request and seizure of his computer. Mr. Baker responded that
his request was in compliance with established policies and that he was unaware that appellant’s
computer was being confiscated and that this was done by internal affairs. Based on the
evidence of record appellant has not established a compensable employment factor pertaining to
these matters.
Appellant generally alleged that he was harassed at the employing establishment. Mere
perceptions of harassment or discrimination are not compensable under the Act.19
Unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.20 Appellant submitted no evidence with his
August 23, 2006 reconsideration request to substantiate harassment by Mr. Baker or any

13

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

14

Joe M. Hagewood, 56 ECAB 479 (2005).

15

L.S., 58 ECAB ____ (Docket No. 06-1808, issued December 29, 2006).

16

Peter D. Butt, Jr., 56 ECAB 227 (2004).

17

Kim Nguyen, supra note 10.

18

Michael L. Deas, 53 ECAB 208 (2001).

19

James E. Norris, supra note 11.

20

Id.

6

coworker or other member of employing establishment management. He therefore failed to
establish a factual basis for his claim of harassment by probative and reliable evidence.21
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.22 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).23 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.24 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.25
ANALYSIS -- ISSUE 2
The Board finds that the Office improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of the Act.
The Board finds that appellant submitted new and relevant evidence not previously
considered by the Office, meeting the requirements of section 10.606(b)(2). Appellant alleged
that he was harassed by Mr. Baker, Mr. Davison and Mr. Peay, and submitted numerous e-mails
and other documentation, including a February 8, 2006 e-mail addressing comments by
Mr. Baker and e-mails in which Mr. Davison allegedly used unprofessional, crude language. He
also submitted five affidavits from coworkers in support of his allegations of harassment at the
employing establishment. However, the Office did not reopen appellant’s claim for further merit
review.26 The Board finds that appellant submitted new supportive factual evidence with his
July 2007 reconsideration request. The Office therefore erred in denying further merit review.27
21

Id.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.608(a).

24

Id. at 10.608(b)(1) and (2).

25

Id. at § 10.608(b).

26

The Board notes that the memorandum discussing the evidence submitted on appeal includes language
weighing the evidence and its relevancy which is properly the subject of a merit review. See Donald T. Pippin,
54 ECAB 631 (2003).
27

See F.D. (S.D.), 58 ECAB ____ (Docket No. 06-1937, issued March 9, 2007).

7

As appellant submitted new and relevant evidence not previously considered by the Office, the
case will be remanded for a decision on the merits of whether the evidence supports his claim
that he sustained a stress-related condition in the performance of duty.28
CONCLUSION
The Board finds that the Office properly denied the claim by its November 20, 2006
merit decision. The Office abused its discretion in denying appellant’s request for a merit review
pursuant to section 8128(a) of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2006 be affirmed.
The decision dated
September 12, 2007 is set aside and the case remanded to the Office for proceedings consistent
with this decision of the Board.
Issued: April 15, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

28

Annette Louise, 54 ECAB 783 (2003).

8