United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Z., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-50
Issued: July 12, 2010

Case Submitted on the Record

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

JURISDICTION
On October 7, 2009 appellant filed a timely appeal from an August 12, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Because more than 180 days elapsed between the March 3, 2009 merit decision
of the Office and the filing of this appeal on October 7, 2009, pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board lacks jurisdiction to review the merits of appellant’s case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 22, 2008 appellant, then a 51-year-old electronic integrated system repair
inspector, filed a traumatic injury claim alleging that on May 20, 2008 he twisted his right knee
while climbing into an aircraft for inspection.

In a letter dated June 2, 2008, the Office informed appellant that the evidence of record
was insufficient to establish his claim as the only evidence submitted was the traumatic injury
claim form. Appellant was advised as to the medical and factual evidence required to support his
claim. The Office gave him 30 days to submit additional information.
In response to the Office’s letter appellant submitted statements dated May 20 and
June 16, 2008. In progress notes dated May 21 and June 11, 2008, Dr. Larry L. Grabhorn, a
treating Board-certified aerospace medicine physician, noted that appellant twisted his right knee
on May 20, 2008 while climbing into a helicopter and diagnosed severe right knee pain. On
physical examination, there was no swelling, bruising or erythema and no tenderness along the
joint line. Dr. Grabhorn noted appellant’s patella moved freely and tracked normally without
crepitation with pain in flexion. He diagnosed right knee joint pain.
By decision dated July 18, 2008, the Office denied appellant’s claim on the grounds that
he failed to establish fact of injury. It accepted that the May 20, 2008 incident occurred as
alleged, but found that there was insufficient medical evidence to establish that his knee
condition was caused by the accepted incident.
On October 30, 2008 appellant requested reconsideration and submitted his statement in
support of his request.
By decision December 18, 2008, the Office denied appellant’s request for
reconsideration.
On February 19, 2009 appellant requested reconsideration and noted that he was
submitting new medical evidence. However the evidence was not included with his request.
In a merit decision dated March 3, 2009, the Office denied modification of the June 18,
2008 decision denying his traumatic injury claim. It noted that there was no medical evidence of
record to support a diagnosed condition causally related to the May 20, 2008 employment injury.
The Office also noted that medical evidence referenced in his reconsideration request was not
received.
On June 17, 2009 appellant requested reconsideration. He noted that he was submitting
reports from a Dr. Seger and medical reports from Corpus Christi MRI Center, but they were not
included with his request.
By decision dated August 12, 2009, the Office denied appellant’s request for
reconsideration on the grounds that he failed to raise a substantive legal question or present
relevant evidence.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,1
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.2 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.3 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.5 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.6
ANALYSIS
The Office denied appellant’s claim on the grounds that the medical evidence was not
sufficient to establish that his right knee condition was causally related to the accepted May 20,
2008 employment injury. The most recent merit denial was dated March 3, 2009. Appellant
requested reconsideration on June 17, 2009, contending that he established his claim and was
submitting new medical evidence. However, the evidence referenced by appellant was not
received by the Office.
Appellant’s June 17, 2009 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office. Appellant did not
submit any pertinent new or relevant evidence with his request for reconsideration. The issue to
be resolved is a medical one and appellant did not submit any medical evidence with his request.
Consequently, he is not entitled to further merit review of his claim under section 10.606(b)(2).

1

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.
2

20 C.F.R. § 10.606(b)(2). See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009); Susan A. Filkins,
57 ECAB 630 (2006).
3

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); Robert G. Burns, 57
ECAB 657 (2006).
4

20 C.F.R. § 10.608(b). See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009); Tina M. ParrelliBall, 57 ECAB 598 (2006).
5

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

6

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

3

The Board finds that appellant was not entitled to further consideration of the merits of
his claim pursuant to three requirements under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 12, 2009 is affirmed.
Issued: July 12, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Fort Worth, TX, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1957
Issued: June 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 20, 2017 appellant filed a timely appeal from an August 22, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has established permanent, ratable hearing loss, warranting
a schedule award.
FACTUAL HISTORY
On June 22, 2017 appellant, then a 57-year-old materials handler, filed an occupational
disease claim (Form CA-2) alleging that she developed hearing loss and tinnitus due to her federal
1

5 U.S.C. § 8101 et seq.

employment duties. She first became aware of her condition on October 29, 2014 and first
attributed it to factors of her federal employment on that date. Appellant did not stop work and
continued to be exposed to noise.
In her accompanying narrative, appellant reported previous exposure to weapons fire,
helicopters, and large trucks as a military police officer in the U.S. Army from June 1993 through
February 1994. She also listed her employment as a warehouse clerk from February 1994 through
March 1995 and her current position as a materials handler from March 1995 driving a forklift in
a warehouse setting. Appellant also described noise from mutilation pipes from a large machine
that shreds currency, cardboard, and metal plates as well as construction work, printing presses,
large trucks, and hydraulic jacks. She alleged that the employing establishment initially did not
enforce earplug usage and that with earplugs sound was not entirely eliminated.
In a June 2, 2017 memorandum, the employing establishment listed appellant’s noise
exposure to forklift operation and production machinery noise. It noted that assorted hearing
protection was provided including earplugs and earmuffs.
Appellant underwent periodic audiograms with the Division of Federal Occupational
Health. As part of this, she sought treatment for hearing loss from Dr. James Sweatt, a Boardcertified surgeon, on October 29, 2014. Dr. Sweatt recommended a complete hearing evaluation.
On April 3, 2017 appellant underwent an audiogram which demonstrated mild high-frequency
sensorineural hearing loss.
A statement of accepted facts (SOAF) dated June 27, 2017 noted that appellant was
employed as a materials handler since March 1995 and was exposed to noise from forklifts,
machinery, truck deliveries, mutilation pipes, printing presses, and hydraulic jacks as well as
construction noises.
On July 3, 2017 OWCP referred appellant, together with the SOAF to Dr. Kenneth S. Hsu,
a Board-certified otolaryngologist for an otologic examination and an audiological evaluation. In
a July 20, 2017 report, Dr. Hsu reviewed the SOAF and found that appellant’s employment-related
noise exposure was sufficient to have caused her hearing loss. He diagnosed asymmetric noiseinduced sensorineural hearing loss and mild tinnitus. Dr. Hsu opined that this hearing loss was
due to noise exposure encountered in appellant’s federal employment. He opined that appellant’s
progressive hearing loss was consistent with noise-induced hearing loss and the asymmetry of the
high-frequency hearing loss suggested a medical cause beyond presbycusis. Audiometric testing
was performed for Dr. Hsu on July 20, 2017. Testing at the frequencies of 500, 1,000, 2,000, and
3,000 cycles per second revealed the following: right ear 15, 20, 25, and 35 decibels; left ear 10,
20, 30, and 35 decibels.
On August 2, 2017 OWCP accepted appellant’s claim for binaural hearing loss and tinnitus
due to noise exposure.
On August 10, 2017 appellant filed a claim for a schedule award (Form CA-7).
On August 14, 2017 an OWCP medical adviser reviewed Dr. Hsu’s report and the
audiometric test of July 20, 2017. He concluded that, in accordance with the sixth edition of the

2

American Medical Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A.,
Guides), appellant had zero percent monaural hearing loss in each ear and zero percent binaural
hearing loss. The medical adviser determined that appellant’s hearing loss was not sufficiently
severe to be ratable for a schedule award after applying OWCP’s standards for evaluating hearing
loss to the results of the July 20, 2017 audiogram. He did not recommend hearing aids.
By decision dated August 22, 2017, OWCP found that although appellant’s hearing loss
was employment related it was not sufficiently severe to be considered ratable for purposes of a
schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the
ability to hear everyday speech under everyday conditions.8 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the

2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See also M.A., Docket No. 17-1490 (issued November 14, 2017); Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Supra note 2 at 250 (6th ed. 2009).

7

Id.

8

Id.

9

Id.

3

amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.11
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.12 The A.M.A., Guides also provide that if
tinnitus interferes with activities of daily living, including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation, and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.14 It may follow the advice of its medical
adviser or consultant where he or she has properly utilized the A.M.A., Guides.15
ANALYSIS
The Board finds that the evidence of record does not establish that appellant has ratable
binaural hearing loss. The July 20, 2017 audiogram results did not demonstrate ratable values in
accordance with the sixth edition of the A.M.A., Guides.
OWCP properly referred appellant to Dr. Hsu for an examination relative to her hearing
loss. Dr. Hsu’s July 20, 2017 examination found that appellant’s binaural hearing loss was due to
her workplace noise exposure. On August 14, 2017 OWCP’s medical adviser reviewed Dr. Hsu’s
report and found that the hearing loss was not ratable for schedule award purposes. He applied the
standardized procedures to the June 20, 2017 audiogram performed for Dr. Hsu to determine if
appellant’s hearing loss was ratable for schedule award purposes.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibel losses of, 15, 20, 25, and 35, respectively. These decibels were totaled at
95 and were divided by 4 to obtain an average hearing loss at those cycles of 23.75 decibels. The
average of 23.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal zero percent hearing loss for the right ear.
10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

Supra note 2 at 249 (6th ed. 2009).

13

Id. See also M.A. supra note 5; R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139
(issued July 13, 2011); Robert E. Cullison, 55 ECAB 570, 573 (2004).
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017).
15

See M.A., supra note 5; Ronald J. Pavlik, 33 ECAB 1596 (1982).

4

Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibel losses of 10, 20, 30, and 35, respectively. These decibels were totaled at
95 and were divided by 4 to obtain the average hearing loss at those cycles of 23.75 decibels. The
average of 23.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to 0 which was multiplied by the established factor of 1.5 to compute 0 percent
hearing loss for the left ear. Thus, OWCP’s medical adviser concluded that appellant did not have
any permanent impairment of her hearing that warranted a schedule award. Consequently,
appellant does not have ratable hearing loss under OWCP’s standardized procedures. Although
she has employment-related hearing loss, it is not sufficiently severe to be ratable for schedule
award purposes.16 Appellant has, therefore, failed to meet her burden of proof to establish
permanent, ratable hearing loss warranting a schedule award.17
The Board notes that Dr. Hsu diagnosed tinnitus. The A.M.A., Guides allows for
compensation of up to five percent impairment for tinnitus in the presence of measurable hearing
loss if the tinnitus impacts the ability to perform activities of daily living.18 The Board has held
that, in the absence of a ratable hearing loss, a schedule award for tinnitus is not appropriate.19 As
explained above, appellant has not established a ratable hearing loss. She is, therefore, not entitled
to a schedule award for tinnitus.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent, ratable hearing loss,
warranting a schedule award.

16

W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-174 (issued July 26, 2011).

17

W.T., id.; S.B., Docket No. 17-1527 (issued January 9, 2018).

18

Supra note 2 at 246; see Leslie M. Mahin, 55 ECAB 311 (2004).

19

L.S., 57 ECAB 725 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, SNAPPER CREEK
POST OFFICE, Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-389
Issued: June 12, 2008

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 November 20, 2007 appellant filed a timely appeal from the September 19, 2007
merit decision of the Office of Workers’ Compensation Programs, which denied her recurrence
of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on October 31, 2006.
FACTUAL HISTORY
On January 7, 2001 appellant, then a 50-year-old mail processing clerk, sustained an
injury in the performance of duty when she struck her left ankle on a gurney. On February 6,
2004 the Office accepted her claim for left ankle sprain.1 On June 30, 2004 appellant accepted a
limited-duty assignment at no wage loss.
1

OWCP No. 062046824.

Also on June 30, 2004 appellant filed a claim alleging that her left ankle tendinitis was a
result of her federal employment. The Office accepted her claim for left ankle tendinitis and left
ankle degenerative arthritis.2
Appellant underwent an arthroscopic synovectomy on
January 19, 2006. She returned to limited duty on March 20, 2006. Appellant’s podiatrist,
Dr. Mark A. Maederer, Jr., excused her from work from July 24 through August 8, 2006
following an aspiration of her left ankle. Dr. Maederer continued appellant’s previous
restrictions but limited her lifting to 20 pounds.
On September 25, 2006 appellant asked Dr. Maederer for time off to file for disability
retirement and consider her options. She was concerned because her employer was planning to
switch her to the third shift. Dr. Maederer stated that appellant was unable to work the third shift
because she took medication in the evening that caused drowsiness. He noted soreness and
diffuse swelling around the left ankle “which is worsened with increased ambulation.”
Dr. Maederer diagnosed chronic degenerative arthritis, left ankle.
On October 19, 2006 Dr. Maederer reported that appellant was doing much better after
her period of rest and was ready to go back to work the next day. He reported minimal
inflammation, minimal soreness “and everything is being well controlled with the Richie brace.”
Dr. Maederer released appellant with the following restrictions: “She is to continuing (sic) with
restricted duty, consisting of eight-hour shift. [Appellant] may sit as much as desired, but should
walk and stand only 15 minutes each intermittently during the entire shift. Maximum carrying
and lifting is 20 pounds intermittently. [Appellant] will return to the office for follow up in [six]
weeks for recheck or sooner if necessary.”
Appellant’s application for disability retirement was approved with a finding that she was
totally disabled for her position as a mail processing clerk due to degenerative arthritis of the left
ankle. Her last day in a pay status was October 31, 2006.
Appellant filed a claim for wage loss beginning October 31, 2006.
supported appellant’s claim in a January 28, 2007 report:

Dr. Maederer

“This is a letter of clarification regarding the disability status of the patient listed
above. This patient has been diagnosed with a permanent disability of her left
ankle due to severe degenerative changes as a result of her previous work injury
on October 3, 2003. I have set the date of her permanent disability as of
October 31, 2006 since that is when it became apparent to me that she will NOT
improve beyond her current condition and that she will require permanent work
restrictions of 8 hours of seated duty with 15 minutes of walking and standing per
shift and a maximum of 20 [pounds] of lifting.
“The patient initially filed for a formal disability claim since she was having a
great deal of difficulty getting her employer to cooperate with her work
restrictions. This has caused numerous flare-ups of her condition, requiring
injection of her ankle and release from work. When [appellant’s] employer
finally agreed to comply with the conditions, they decided to transfer her to a
2

OWCP No. 062121112 (master).

2

facility requiring her to work [third] shift, overnight. This patient takes Darvocet
(a synthetic narcotic) periodically for pain to her left ankle, in addition to
Celebrex. When [appellant] takes Darvocet during the day, she is able to
function, but if she takes it in the evening, it causes a debilitating degree of
drowsiness. This is due to the body’s natural diurnal sleep cycle and its response
to darkness. This is the reason for her disability application, since once again, her
employer failed to meet her required work restrictions in a reasonable manner.
[Appellant] is medically unable to work an overnight shift safely due to the facts I
have just described.
“If [appellant’s] employer can meet her required restrictions, as described above,
in a reasonable fashion, [she] will happily continue working. Indeed, she prefers
to work rather than taking disability. It seems to me that her employer has been
intentionally making this more difficult than necessary for [appellant] due to some
sort of personal spite regarding her condition. Please help us to resolve this
matter in a timely and appropriate fashion.” (Emphasis in the original.)
In a decision dated March 14, 2007, the Office denied appellant’s claim of recurrence.
An Office hearing representative vacated this decision and remanded the case for further
development, including a statement from the employer on appellant’s allegation that she had to
retire because she was forced to walk and stand in excess of her doctor’s restrictions.3 On
August 30, 2007 the employer responded that at no time from March 20 to October 31, 2006 did
appellant perform duties that were not in accordance with the restrictions provided by her
treating physician and at no time during that period did she advise that she was unable to perform
her assigned duties. The employer added that appellant’s duties were not changed and that at no
time was the employer unable to accommodate her restrictions. The employer stated that
appellant’s allegations were unfounded.
In a decision dated September 19, 2007, the Office denied appellant’s claim of
recurrence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act pays compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty.4
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.5

3

The hearing representative also found a conflict in medical opinion on whether appellant recovered from her left
ankle conditions, as a second-opinion physician reported. On remand, however, the Office noted that appellant’s
claim was subsequently expanded to include other conditions, that she underwent surgery for the accepted
conditions and that she was returned to work with restrictions. So the Office determined that the opinion of the
second-opinion physician was no longer valid.
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f) (1999).

3

When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.6
ANALYSIS
Appellant stopped work on October 31, 2006, but she has not shown that she stopped
because of a change in the nature and extent of her injury-related condition. The medical
evidence shows that she was able to work within the restrictions set by her podiatrist,
Dr. Maederer, who reported on October 19, 2006 that appellant was rested and ready to go back
to work. Appellant’s inflammation and soreness was “minimal” and “everything was being well
controlled with the Richie brace.” Dr. Maederer released appellant to return to work within her
previous restrictions and noted that she would return to the office for follow-up in six weeks or
sooner if necessary. So 12 days before appellant stopped work, her podiatrist cleared her to
continue working.
After appellant stopped work, Dr. Maederer reported that she was still physically capable
of working within her restrictions. On January 28, 2007 he clarified that appellant would happily
continue working “if her employer can meet her required restrictions, as described above, in a
reasonable fashion.” So the issue is not whether appellant stopped work because of a change in
the nature and extent of her injury-related condition. The issue is whether she stopped work
because of a change in the nature and extent of her limited-duty job requirements.
About a month before she stopped work, appellant told Dr. Maederer that her employer
was planning to switch her to the third shift. But her employer did not take that action.
Appellant continued in the same position until the day her retirement became effective. Her
concern over the possibility, at some point in the future, of having to work such a shift is no basis
for the payment of compensation. The Board has held that a fear of future injury is not a
compensable factor of employment.7
Appellant also told Dr. Maederer that she was having a great deal of difficulty getting her
employer to cooperate with her work restrictions. The Office further developed the factual
evidence and received a statement from the employer that appellant’s allegation was unfounded.
The employer stated that from the time appellant began her limited duty on March 20, 2006 to
the date of her retirement on October 31, 2006, she never performed duties that were not in
accordance with her restrictions. Further, appellant never complained that she was unable to
perform her assigned duties. Her duties did not change and the employer was always able to
accommodate her. Given this evidence, it is not established as factual that the employer did not
cooperate with appellant’s restrictions.
6

Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

Mary A. Geary, 43 ECAB 300, 309 (1991).

4

If appellant was having difficulty with employer cooperation, she did not mention this to
Dr. Maederer when she saw him on September 25, 2006. Dr. Maederer stated that appellant was
asking for time off to file for disability retirement and consider her options because she was
concerned that her employer was planning to switch her to the third shift, not because the
employer was currently failing to cooperate with restrictions. When Dr. Maederer released
appellant to return to work on October 19, 2006, he again mentioned nothing about a cooperation
or compliance issue.8 The Board finds that the evidence does not establish a change in the nature
and extent of appellant’s limited-duty job requirements.
As noted, “disability” under the Act means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury. This is different from
the standard used to approve appellant’s application for retirement. The employer approved her
application because she was totally disabled for useful and efficient service in her position as a
mail processing clerk. Appellant was nonetheless capable of performing limited duty at no wage
loss, as she demonstrated from March 20 to October 31, 2006, not counting a couple of weeks to
recover from an aspiration. So in the absence of evidence establishing a change in the nature and
extent of her injury-related condition or a change in the nature and extent of her limited-duty job
requirements, appellant has not met her burden to establish a recurrence of disability beginning
October 31, 2006. The Board will affirm the Office’s September 19, 2007 decision denying
compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on October 31, 2006.

8

In his January 28, 2007 report, Dr. Maederer stated that appellant’s employer “finally agreed” to comply with
the restrictions but decided to transfer her to a facility requiring her to work the third shift. If compliance was at one
time an issue, this statement indicates that it was an issue no longer and that appellant’s motivation for seeking
retirement was simply her fear of future injury, which is not compensable.

5

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2008
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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 07-433
Issued: May 15, 2007

Case Submitted on the Record

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

JURISDICTION
On December 6, 2006 appellant filed a timely appeal from a September 27, 2006 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. 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 an emotional condition
while in the performance of duty.
FACTUAL HISTORY
On February 22, 2006 appellant, then a 47-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) assigned file number 02-22512655. On January 1,
2006 she first realized that her stress was due to harassment by James W. Betts, a supervisor, and
his use of others to defile her character as a good worker. Appellant stopped work on
February 22, 2006 and did not return. Appellant submitted a February 22, 2006 disability

certificate of Dr. Maria B. Del Vecchio, an internist, who opined that she was totally
incapacitated.
On February 24, 2006 Alan M. Johnson, a supervisor, stated that on Wednesday,
February 22, 2006 at approximately 6:00 a.m., appellant reported to work to be issued a
predisciplinary interview. Mr. Johnson noted that Robert Parrish, a clerk shop steward, was
present for an interview. Mr. Parrish stated that he was not designated a shop steward for the
city division. Mr. Johnson related that appellant became very irritated and loud. At
approximately 6:20 a.m., she reported a job-related stress injury. Mr. Johnson indicated that the
disciplinary interview was never held. Appellant was escorted by Mr. Johnson to the medical
unit at approximately 6:30 a.m. She was examined by Nurse Cox, who reported that appellant’s
vital signs were good. Appellant told Nurse Cox that she was being picked on by management.
Mr. Johnson stated that on February 22, 2006 appellant saw her private physician, Dr. Del
Vecchio, who diagnosed gastritis. Dr. Del Vecchio found that appellant was totally incapacitated
until February 26, 2006.
In another memorandum dated February 24, 2006, Mr. Johnson stated that on
February 22, 2006 appellant alleged that management was picking on her.
By letter dated August 24, 2006, the Office requested that the employing establishment
respond to appellant’s allegations. In a letter of the same date, the Office advised appellant that
the evidence submitted was insufficient to establish her claim. The Office addressed the factual
and medical evidence she needed to submit to establish her claim.
In an August 31, 2006 letter, appellant alleged that Mr. Betts and his chosen supervisors
harassed her, which was stressful. She stated that her claim was for her work-related carpal
tunnel syndrome and not stress. Appellant contended that Mr. Betts harassed her about the way
she held the mail and pitched with sore arms and hands. She contended that he had a personal
vendetta against her after she filed a complaint against him with the Equal Employment
Opportunity (EEO) Commission. Appellant also contended that Mr. Betts could not get her for
attendance so he tried to get her based on her work performance. She stated that she went home
in pain and was distressed about her arms and hands.
Appellant submitted medical evidence covering the period January 30, 2006 through
May 27, 2007 regarding her bilateral carpal tunnel syndrome, cervical disc disorder and brachial
neuritis. From January 30 through April 20, 2006 Darline Felix and Svetlana Rozenberg,
physician’s assistants, prescribed medication and right and left wrist splints for treatment of her
carpal tunnel syndrome and x-rays of both hands. Disability certificates from Ms. Felix and
Ms. Rozenberg addressed appellant’s disability for work and her release to limited-duty work
with physical restrictions.
In a September 11, 2006 email message, Mr. Betts denied appellant’s allegations. He
described her as a very combative person when it came to following instructions and performing
her work duties. Mr. Betts noted that every time action was taken against appellant, she went
through a chain of events either by filing EEO complaints or proclaiming that she had an
accident. He contended that this was her way of trying to avoid the disciplinary actions initiated
against her. Mr. Betts stated that every complaint appellant filed had been converted or was

2

settled as a mutual agreement. He denied that she was harassed. Appellant alleged harassment
because her daily work activities were being observed and she was advised about her job
performance. Mr. Betts noted that appellant received two letters for not performing her work
duties in an effective manner which were settled.
The employing establishment submitted a June 10, 2005 agreement in settlement of
appellant’s grievance for being charged with being absent without leave (AWOL). It agreed to
change 33 units of AWOL to leave without pay (LWOP). The employing establishment issued
several disciplinary letters to appellant. On April 21, 2005 appellant was warned for failing to be
in regular attendance. On May 18, 2005 she was suspended for seven days for failing to make
proper clock rings and possessing a time badge. On August 11, 2005 appellant was warned for
failing to follow official instructions. This letter of warning was modified to represent an official
discussion based on an August 31, 2005 settlement of appellant’s grievance. Appellant was
warned on November 16, 2005 for failing to follow instructions in a timely manner. The
November 22, 2005 settlement of appellant’s grievance for this action reflects that the parties
agreed to a six-month retention period from November 16, 2004 through May 16, 2005. On
January 14, 2006 appellant was suspended for seven days for failing to perform her duties in an
effective and conscientious manner. On March 8, 2006 she was suspended for 14 days for
failing to perform her duties in an effective and conscientious manner. This suspension was
rescinded by the employing establishment pursuant to a March 9, 2006 settlement agreement.
By decision dated September 27, 2006, the Office denied appellant’s claim, finding that
she did not sustain an emotional condition while in the performance of duty.1 It found that she
failed to submit sufficient evidence to establish that she was harassed at the employing
establishment. In addition, the evidence of record failed to establish that the employing
establishment committed error or abuse in taking disciplinary actions against her.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of his federal employment.2 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3

1

In the September 27, 2006 decision, the Office stated that, although appellant contended that her claim was for
carpal tunnel syndrome and not an emotional condition, her February 22, 2006 CA-2 form only alleged that she was
harassed by the employing establishment. The Office indicated that on April 6, 2006 appellant filed a CA-2 form
assigned file number 02-2514498 for her carpal tunnel syndrome. It stated that it would only address her emotional
condition claim in its decision.
2

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

3

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

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 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 an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.6 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her 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 her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.7
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or her frustration from not being
permitted to work in a particular environment or to hold a particular position.10 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.11

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

7

Lillian Cutler, supra note 4.

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

Lillian Cutler, supra note 4.

11

Michael L. Malone, 46 ECAB 957 (1995).

4

However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.12
ANALYSIS
Appellant attributes her emotional condition to being harassed by Mr. Betts and
Mr. Johnson. She contends that Mr. Betts belittled her character as a good worker and that he
harassed her about the way she held and pitched mail with her arms and hands. She alleged that
Mr. Betts had a personal vendetta against her after she filed an EEO claim against him.
Harassment when shown to have occurred may be considered a compensable factor of
employment. However, there must be some evidence that such implicated acts of harassment
did, in fact, occur. Mere perceptions of harassment or discrimination are not compensable under
the Act. A claimant must establish a factual basis for allegations that the claimed emotional
condition was caused by factors of employment.13 Mr. Betts denied that appellant was harassed
at work. He stated that she was a very combative person when it came to following instructions
and performing her work duties as required, noting that she filed EEO complaints or proclaimed
that she sustained an accident when disciplinary action was to be taken against her. Mr. Betts
stated that disciplinary letters were issued because appellant did not perform her duties in an
effective manner. Mr. Johnson stated that a disciplinary interview involving appellant did not
take place because she became very irritate and loud. He related that she later claimed that she
sustained a work-related emotional condition. Appellant did not submit any evidence such as
witness statements from her coworkers, to substantiate her allegations of harassment. The
Board, therefore, finds that appellant has not established a factual basis for her allegations of
harassment by Mr. Betts and Mr. Johnson. Appellant did not provide any probative evidence
that harassment occurred as alleged.14 Therefore, she did not establish a compensable
employment factor with respect to harassment.15
Appellant also attributed her emotional condition to disciplinary actions, including the
issuance of letters of warning, suspension and being charged AWOL. The Board notes that the
disciplinary actions involve an administrative function of appellant’s supervisor and not the
employee’s regular or specially-assigned work duties.16 The filing of a grievance related to these
matters also does not pertain to her assigned work duties.17 Mr. Betts stated that all of
appellant’s grievances had been either converted or settled. The record establishes that, based on
12

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

13

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
14

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

15

See Jamel A. White, 54 ECAB 224 (2002).

16

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
17

Diane C. Bernard, 45 ECAB 223 (1993).

5

settlement agreements, the employing establishment modified 33 units of AWOL hours charged
to appellant to 33 units of LWOP. The August 11, 2005 letter of warning was reduced to an
official discussion. Appellant received a six-month retention period regarding the November 16,
2005 letter of warning and her March 8, 2006 suspension was set aside. Although the employing
establishment modified and rescinded certain disciplinary actions it took against appellant, the
record does not contain a final decision finding that the employing establishment erred or acted
abusively in handling these administrative matters. Appellant has not submitted evidence of
error or abuse on behalf of the employing establishment with regard to issuance of disciplinary
letters or charging her with being AWOL. The Board finds that appellant has failed to establish
a compensable factor of employment.
CONCLUSION
As appellant has not identified any compensable factors of her employment, the Board
finds that she has failed to establish that she sustained an emotional condition while in the
performance of duty.18
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
18

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of her emotional condition, the medical evidence relating appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Tom McMenamy, for the appellant
Office of Solicitor, for the Director

Docket No. 10-353
Issued: January 21, 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 November 18, 2009 appellant filed a timely appeal from a September 30, 2009
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On February 16, 2009 appellant, a 46-year-old clerk, filed a traumatic injury claim
alleging an emotional condition following a confrontation with her supervisor, Senior Clerk
Karen Hines, during a February 11, 2009 meeting. In a statement accompanying the claim, she
stated that the meeting was convened because Ms. Hines had threatened her on January 29, 2009
and had engaged in a pattern of harassment and abusive behavior towards her. Appellant
asserted that management failed to resolve the threat posed by Ms. Hines and had threatened

disciplinary action during the meeting if she and Ms. Hines caused another incident.
Management warned both employees that they would be transferred if another incident occurred.
In a February 16, 2009 report, Dr. Regina Neuman, an internist, excused appellant from
work from February 16 to 19, 2009 due to an acute reaction to stress and elevated blood
pressure.
In a statement of record, Nancy D’Andrade, a coworker, noted that she was outside
helping a customer at her window on January 29, 2009 when she heard Ms. Hines and appellant
arguing loudly. Ms. Hines yelled at appellant and accused her of leaving the worksite early
when she was not on union business and of telling management that she was not always in
uniform at the required times. She told appellant to “get a life” and that everything appellant was
doing “was going to get back to her.” Appellant stated that Ms. Hines behaved in an aggressive
manner.
In a February 17, 2009 statement, Neysa Coleman, a union vice-president, noted that she
was present at a February 11, 2009 mediation, which was scheduled by station manager Nyesha
Hall to resolve appellant’s allegation that Ms. Hines had threatened her while on duty.
Ms. Hines spoke first, was very upset and enraged and began to rant about how appellant
disrespected her and failed to notify her when appellant left the workplace during work hours.
She stated that the January 29, 2009 incident occurred because appellant was short in her stock
count. Ms. Hines accused appellant of being petty when she complained to management about
her not being in uniform. She alleged that appellant ate and talked on her cell phone while
stationed at the customer window. Ms. Coleman noted that, when appellant began to state her
side of the story, Ms. Hines interrupted her. Appellant denied the allegations by Ms. Hines. She
stated that, on January 29, 2009, Ms. Hines called appellant into her office, became very upset
and yelled at her. Appellant walked back to the customer window, at which time Ms. Hines ran
behind her shouting that she would “get hers.” Ms. Coleman stated that appellant felt threatened
by Ms. Hines and did not feel safe. She advised that Ms. Hines yelled at the end of the
February 11, 2009 meeting denying any threat but told appellant that she was going to “get hers.”
Ms. Coleman noted that Ms. Hall advised both clerks that management instructed her to
put both clerks out and turn the case over to the inspection service; but, Ms. Hall preferred to
seek a resolution between the employees. She stated that Ms. Hall did not address the
employer’s zero tolerance policy for verbal or physical altercations, advised that eating and
talking on the cell phone would not be permitted at the window and that appellant would notify
Ms. Hines when she left the station. Ms. Coleman instructed both clerks to be courteous to each
other and to work together. She stated that appellant felt as if nothing had been resolved and felt
threatened by Ms. Hines.
On April 7, 2008 Ms. Hines asked the employer for a transfer to another post office due
to hostility and tension with appellant and Ms. D’Andrade. She worked along with appellant
until Ms. D’Andrade began work at their station; but, appellant and Ms. D’Andrade began to
whisper with each other in her presence and generally behaved in an inappropriate and
disrespectful manner toward her. Ms. Hines stated that appellant filed several complaints against
her in recent years.

2

On February 20, 2009 the employing establishment controverted the claim. It stated that
appellant did not support her allegation that she was threatened on February 11, 2009.
In a statement of record, appellant reiterated that Ms. Hines had threatened her on
January 29, 2009 by stating “you’re gonna get yours, I’m going to see to it.” She notified
management of the alleged threat that day and provided a statement to management when she
returned to work on February 9, 2009. Ms. Hall spoke to appellant and Ms. Hines on February 9,
2009, after which Ms. Hines again followed appellant and threatened her in the same manner.
Appellant stated that Ms. Hall then scheduled the February 11, 2009 mediation to resolve the
acrimony between the women. She asserted that she construed Ms. Hall’s warnings about the
consequences of future misconduct as a threat by management in response to her complaint that
it had not enforced the zero-tolerance policy toward Ms. Hines. Appellant developed a headache
and felt unable to handle postal funds at the window. She sought medical treatment from a
treating physician and from a psychologist, who diagnosed adjustment disorder with anxiety.
In form reports of February 23 and March 3, 2009, Dr. Neuman indicated that appellant
had hypertension and elevated blood pressure, aggravated by acute stress at work, which resulted
in total disability as of February 11, 2009. In a February 5, 2009 report, she asked that appellant
be excused from work due to a work-related illness from January 30 to February 8, 2009. On
March 24, 2009 Dr. Neuman stated that she had treated appellant for hypertension for many
years. On February 12, 2009 appellant told her of a threat by a coworker and that she was under
stress at work. Dr. Neuman addressed appellant’s hypertension, noting that an elevation of blood
pressure seemed to correlate to the acute stress appellant experienced at work. She referred
appellant for psychological counseling.
In a March 18, 2009 report, Dr. Ursula Martin, a degreed social worker, stated that she
treated appellant on February 23, 2009 for adjustment disorder with anxiety. She advised that
appellant experienced anxiety due to a conflict and verbal interaction with a coworker.
Dr. Martin believed that appellant’s condition was improving and that she could return to work
by April 1, 2009.
In a March 24, 2009 statement, Ms. Hall advised that appellant had asked to speak with
her on February 9, 2009 regarding problems with Ms. Hines. Appellant believed Ms. Hines was
subjecting her to verbal harassment. Ms. Hall scheduled the mediation meeting for February 11,
2009 in order to resolve the issue. She stated that both employees were very upset at the
meeting. Ms. Hall advised that Ms. Hines acknowledged stating that appellant would get what
was coming to her and that what comes around goes around. After listening to both employees,
Ms. Hall informed them that she would not tolerate this continuing behavior and expected them
to work with each other and conduct themselves in a professional manner.1

1

In a March 23, 2009 statement, the worksite manager, Renee Davis, stated that she advised appellant and
Ms. Hines on February 11, 2009 that conflicts between them were avoidable if they respected each other. Appellant
was the worksite’s union steward charged with representing Ms. Hines in the event she desired to file a grievance.
Ms. Davis stated that management acted to reduce the likelihood of future conflicts between the two parties by
moving appellant to a service window located away from that of Ms. Hines.

3

By decision dated March 31, 2009, the Office denied the claim for an emotional
condition, finding that appellant failed to establish fact of injury.
On April 30, 2009 appellant requested an oral hearing that was held on August 18, 2009.
She filed a grievance against management for failure to enforce the zero-tolerance policy and
against Ms. Hines for threatening conduct. Appellant asserted that Ms. Hines had a history of
difficulty interacting with coworkers.
In a September 30, 2009 decision, an Office hearing representative affirmed the
March 31, 2009 decision. While appellant established a contentious relationship with Ms. Hines,
the senior clerk, which culminated in the February 11, 2009 mediation meeting, the evidence did
not establish a compensable factor of employment.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.2 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.3
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of the Federal Employees’ Compensation Act.4 On the other hand, disability is not
covered where it results from an employee’s fear of a reduction-in-force, frustration from not
being permitted to work in a particular environment or to hold a particular position, or to secure a
promotion. Disabling conditions resulting from an employee’s feeling of job insecurity or the
desire for a different job do not constitute a personal injury sustained while in the performance of
duty within the meaning of the Act.5
The Board has recognized the compensability of verbal altercations or abuse when
sufficiently detailed by the claimant and supported by the record. This does not imply, however,
that every statement uttered in the workplace will give rise to compensability.6

2

See Debbie J. Hobbs, 43 ECAB 135 (1991).

3

See Ruth C. Borden, 43 ECAB 146 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

6

See David C. Lindsey, 56 ECAB 263 (2005). The mere fact that a supervisor or employee may raise his or her
voice during the course of an argument does not warrant a finding of verbal abuse. Joe M. Hagewood, 56 ECAB
479 (2005).

4

ANALYSIS
Appellant did not attribute her emotional condition to her regular or specially assigned
duties under Cutler. Rather, she attributed her condition to a verbal exchange with Ms. Hines on
January 29, 2009 and a subsequent meeting between the employees on February 11, 2009.
Appellant’s primary allegation is that she was threatened with physical harm by Ms. Hines and
that the employer did not take adequate action. The Board finds that appellant did not establish a
compensable factor of employment in this regard.
The record establishes that Ms. Hines had a meeting with appellant on January 29, 2009,
concerning leaving the worksite early and of advising management of Ms. Hines’ attire.
Appellant exited the office and alleged that Ms. Hines followed her, yelling threats against her.
Ms. D’Andrade noted that Ms. Hines told appellant to “get a life” and that what appellant did
would “get back to her.” Ms. Hall, the station manager, met with the two employees on
February 11, 2009 where Ms. Hines attributed the January 29, 2009 incident to a shortage in
appellant’s stock count. Ms. Hines acknowledged that she told appellant that she was being
petty and that she would “get hers.” Ms. Hall instructed both employees that she preferred they
resolve the matter and to be courteous in the future. She warned both employees as to their
conduct and that such continued behavior could lead to their removal. The Board has recognized
the compensability of verbal abuse as a compensable work factor but not every statement uttered
in the workplace will give rise to compensability.7 Appellant alleged that her coworker spoke to
her abusively and uttered verbal threats of harm against her. While she may have felt
uncomfortable or been offended by the tone of Ms. Hines, the Board finds that Ms. Hines did not
threaten harm or engage in verbal abuse.8 A claimants own feeling or perception that a form of
criticism or disagreement with a supervisor is unjustified, inconvenient or embarrassing does not
give rise to coverage under the Act.9
The Board finds that appellant has failed to submit sufficient evidence to establish that
Ms. Hines otherwise engaged in harassment, as alleged. Appellant’s assertions that Ms. Hines
mistreated her and maintained a hostile workplace for a year prior to the January and
February 29, 2009 incidents are unsubstantiated. She alleged that Ms. Hines made derogatory,
bigoted remarks against her and other coworkers and treated her in a demeaning, condescending
manner, embarrassing her and causing her humiliation. However, appellant did not submit
sufficient evidence to establish her allegations as to time, place, what was said or of any
witnesses to any specific incident.10 As such, appellant’s allegations constitute generally stated
assertions of dissatisfaction with a certain superior at work which do not establish her

7

David W. Shirey, 42 ECAB 783 (1991).

8

See V.W., 58 ECAB 428 (2007); Michael A. Deas, 53 ECAB 208 (2001); Denis M. Dupor, 51 ECAB
482 (2000).
9

Michael A. Deas, supra note 8. “I know which way you walk” and “kick his butt” were found not to be threats
of physical harm or verbal abuse.
10

See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).

5

allegations.11 Mere perceptions of harassment or discrimination are not compensable; a claimant
must establish a basis in fact for the claim by supporting her allegations with probative and
reliable evidence.12 Ms. Hines denied appellant’s allegations that she was treated unfairly or
subjected her to harassment. Appellant provided no corroborating evidence or witness
statements to establish that the statements actually were made or that the actions actually
occurred.13 Ms. Hines denied that she had a personal agenda to harass or intimidate appellant or
terminate her from her position. Appellant has not established a compensable employment factor
under the Act in this respect.
The Board finds that the evidence of record does not establish that the administrative and
personnel actions taken by management were in error and are therefore not considered factors of
employment. An employee’s emotional reaction to an administrative or personnel matter is not
covered under the Act, unless there is evidence that the employing establishment acted
unreasonably.14 Appellant has not presented sufficient evidence that the Ms. Hall acted
unreasonably or committed error with regard investigating the matter, holding the mediation
meeting or of verbally warning each employee that further such conduct would not be accepted
in the workplace.
Regarding appellant’s allegation that she developed stress due to insecurity about
maintaining her position, the Board has held that a claimant’s job insecurity is not a compensable
factor of employment.15 Appellant failed to establish error or abuse with regard to her allegation
that Ms. Hall’s warning regarding the consequences of future conduct constituted a threat by
management in retaliation to her allegation that it had not enforced its zero-tolerance policy
toward Ms. Hines.16 Disciplinary matters consisting of counseling sessions, discussions or
letters of warning for conduct pertain to actions taken in an administrative capacity and are not
compensable as factors of employment.17 Accordingly, appellant has presented insufficient
evidence with regard to these incidents.

11

See Debbie J. Hobbs, supra note 2.

12

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

13

See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
14

See Alfred Arts, 45 ECAB 530 (1994).

15

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

16

The Board notes that appellant provided no documentation to support her allegation that management was
forcing her, in her capacity as shop steward, to represent Ms. Hines against herself in the grievance appellant filed.
While Ms. Davis did indicate in her March 23, 2009 statement that appellant and Ms. Hall needed to get along
because appellant was the shop steward charged with representing her in union matters, appellant has produced no
evidence that management sought to have appellant act contrary to her own interests in the grievance she filed
against Ms. Hall. The Board notes that, in general, union activities are personal in nature and are not considered to
be within an employee’s course of employment or performance of duty. See Larry D. Passalacqua, 32 ECAB 1859,
1862 (1981).
17

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

6

The decision of the Office dated September 30, 2009 is set aside and the case is
remanded for further action in accordance with this decision.
CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard L. Bridgewater, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1418
Issued: January 18, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant, through his representative, filed a timely appeal from a
March 18, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration. Because more than 180 days elapsed between the last
merit decision of March 4, 2010 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s case. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction to review the March 18,
2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative contends that the evidence submitted by appellant
established his allegations of bullying, intimidation, harassment and hostile work environment,
which caused his aneurysm or stroke.
FACTUAL HISTORY
On December 20, 2008 appellant, then a 49-year-old manager, customer services, filed an
occupational disease claim alleging that on April 29, 2003 he first realized that his stress-related
aneurysm or stroke was a result of harassment and a hostile work environment. He asserted that
James Brown, his supervisor, bullied, intimidated and harassed him at meetings and in front of
employees he supervised during the period April 18 to 29, 2003. Appellant contended that
Mr. Brown pressured him on his daily tasks and work goals and subjected him to inappropriate
verbal condemnation. He alleged that during the week of April 20, 2003 Mr. Brown became
impatient and accused him of getting him up to speed on the position. Appellant alleged that
Mr. Brown threatened him and kept pointing a finger during a meeting with management on
April 28, 2003. He alleged that on April 29, 2009 Mr. Brown told him that he was being held
personally responsible for conducting a meeting instructing employees that tours began at
7:00 a.m. Appellant became ill and that following the talk he started to fall and was taken to the
emergency room.
Appellant provided a list of witnesses and reports from his treating physicians,
Dr. Ricardo J. Plasencia, a neurologist, Dr. I. Jack Abramson, a Board-certified psychiatrist, and
Nivea R. Ribas to support his claim of harassment and bullying by Mr. Brown. On March 1,
2007 Dr. Plasencia attributed appellant’s aneurysm to his uncontrolled hypertension.
Dr. Abramson related on December 16, 2008 that appellant provided him a narrative of events
for the period April 18 to 29, 2003, which appellant alleged constituted harassment, anxiety,
stress, agitation, hostility and intimidation. Based on his review of appellant’s statement, he
attributed appellant’s current condition to his noxious workplace situation.
By correspondence dated February 11, 2009, OWCP informed appellant that the evidence
of record was insufficient to support his claim. Appellant was advised as to the medical and
factual evidence required to support his claim and given 30 days to provide such information.
In response to OWCP’s request, appellant submitted a statement detailing incidents
causing the hostile work environment. He alleged that on May 15, 2008 Betty Alexander, his
then supervisor, instructed him while he was on the computer in an aggressive and hostile
manner to get into another computer program. Appellant also alleged that she yelled and pointed
her finger at him. He submitted witness statements from coworkers, Irvin Lyons, Jr., Ernest Hall
and Sandra Fulcher. Appellant also submitted medical evidence including an April 15, 2009
report from Dr. Paul E. Jacobsen, a treating Board-certified family practitioner.
Mr. Lyons and Mr. Hall provided witness statements for the events occurring on April 28
and 29, 2003 involving Mr. Brown. Both noted that at a meeting on April 28, 2003 Mr. Brown’s
body and verbal language toward appellant appeared tense and hostile. Mr. Lyons and Mr. Hall
also related that during the meeting Mr. Brown pointed a finger at appellant while talking to him.
They were both present on April 29, 2003 when they witnessed appellant collapsing and falling
to the floor following a service talk with employees.

2

In her statement, Ms. Fulcher stated that she witnessed appellant having a panic attack on
August 13, 2008, which he attributed to aggressive behavior by Ms. Alexander, a postmaster.
She noted that subsequently he related to her that he continued to have anxiety attacks as a result
of the August 13, 2008 aggressive conversation with Ms. Alexander.
On April 15, 2009 Dr. Jacobsen diagnosed severe stress disorder, labile hypertension and
cerebrovasular accident. He attributed appellant’s stroke to a hostile work environment and
verbal assaults by appellant’s supervisor.
On April 23, 2009 OWCP received a May 7, 2003 discharge summary from Palmetto
General Hospital relating that appellant was admitted on April 29, 2003 for intracerebral
bleeding. It noted that he had a history of high blood pressure and had not been taking his
medication for the past two weeks.
By decision dated August 13, 2009, OWCP denied appellant’s claim on the grounds that
he did not establish any compensable employment factors. It found that he failed to establish
that he was subjected to a hostile work environment, harassment, verbal abuse or inappropriate
administration actions by Mr. Brown.
On August 29, 2009 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on December 15, 2009.
By decision dated March 4, 2010, an OWCP hearing representative affirmed the
August 13, 2009 decision denying appellant’s claim. He found that appellant had not established
any error or abuse by Mr. Brown’s instructions to him. The hearing representative also found
that appellant failed to establish any verbal abuse or harassment by his supervisor.
In a March 1, 2011 letter, appellant requested reconsideration. He contended that the
evidence he submitted established that he was subjected to a hostile work environment.
Appellant submitted definitions of psychological and emotional abuse and workplace bullying by
the U.S. Department of Justice and the employing establishment’s policy on workplace
harassment to support his allegation that he was subjected to harassment and bullying which
caused his aneurysm or stroke on April 29, 2003. He also submitted an August 24, 2010 e-mail
sent to a Manuel V. Ferrer concerning a hostile work environment and incidents occurring in
2009 and 2010 and a January 21, 2011 e-mail sent to management requesting a meeting to
discuss his concerns on the hostile work environment.
By nonmerit decision dated March 18, 2011, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.

3

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant claimed that the aneurysm or stroke he had on April 29, 2003 was due to
harassment and bullying by his supervisor, Mr. Brown and a hostile work environment. OWCP
denied his claim on the grounds that he failed to submit any evidence supporting his allegations
of bullying and harassment by his supervisor or a hostile work environment. The issue to be
resolved on appeal is whether appellant advanced relevant legal argument not previously
considered by OWCP, submitted relevant pertinent new evidence or showed that OWCP
erroneously applied or interpreted a point of law.
In support of his timely March 1, 2011 reconsideration request, appellant argued that
OWCP erred in finding that the evidence he submitted was insufficient to support his allegations
of a hostile work environment, bullying and harassment. He submitted definitions of
psychological and emotional abuse and workplace bullying by the U.S. Department of Justice
and the employing establishment’s policy on workplace harassment in support of his contention.
Appellant also submitted copies of e-mails he sent alleging new work factors showing a hostile
work environment in 2009 and 2010. The policy statements he submitted from the U.S.
Department of Justice and the employing establishment do not address the specifics of his
allegations. This evidence provides definitions of psychological and emotional abuse, workplace
bullying by an agency and a guideline from the employing establishment on its harassment
policy. The evidence submitted by appellant does not address the incidents he alleged caused or
contributed to his medical condition. In addition, the U.S. Department of Justice definitions and
employing establishment’s work policy do not establish whether the allegations he made were
factual and compensable under FECA. The Board has held that the submission of evidence
which does not address the particular issue involved in a case does not constitute a basis for
reopening the claim.6 As they do not address appellant’s allegations, they are insufficient to
support his claim. Emotional claims require that a claimant establish a factual basis by
supporting allegations with probative and reliable evidence. Perception and feelings alone are
not compensable.7 However, appellant did not include any additional supporting evidence
3

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
4

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

5

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
6

D’Wayne Avila, 57 ECAB 642 (2006).

7

Margret S. Krzycki, 43 ECAB 496 (1992).

4

verifying the new work factors he alleged in the e-mails he submitted with his request. The
Board finds that the mere statement of previously alleged and new work factors does not address
the underlying issue of verification and corroboration and is not sufficient to require OWCP to
reopen the claim for merit review.8
The Board finds that appellant has not established that OWCP improperly denied his
request for further review of the merits of its August 13, 2009 decision under section 8128(a) of
FECA, because the evidence and argument he submitted did not to show that OWCP erroneously
applied or interpreted a specific point of law, advance a relevant legal argument not previously
considered by OWCP or constitute relevant and pertinent new evidence not previously
considered by OWCP.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

8

See Diedra A. Spencer, Docket No. 02-991 (issued October 2, 2002) (where the Board found that appellant’s
listing of new and previously alleged work factors was not sufficient to require OWCP to reopen her emotional
condition case. The Board determined that the statement described her allegations but did not establish that the
alleged employment incidents actually occurred. Thus, it did not constitute relevant evidence).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 18, 2011 is affirmed.
Issued: January 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Glenn Norton, for the appellant
Office of Solicitor, for the Director

Docket No. 09-968
Issued: December 28, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant, through her representative, filed a timely appeal from the
January 12, 2009 merit decision of the Office of Workers’ Compensation Programs which denied
waiver of an overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.1
ISSUES
The issues are:
(1) whether appellant received a $15,360.51 overpayment of
compensation for which she was not at fault; (2) whether the Office properly denied waiver of
the overpayment; and (3) whether the Office properly set the rate of recovery from continuing
compensation.

1

The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
January 12, 2009 decision. 20 C.F.R. § 501.2(c). The Board, therefore, has no jurisdiction to review the itemized
list of other monthly expenses that appellant submitted for the first time on appeal.

FACTUAL HISTORY
On March 13, 1995 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging stress and depression as a result of her federal employment. The Office
accepted her claim for depression and mood disorder and paid compensation for temporary total
disability on the periodic rolls. It paid compensation at the augmented rate of 75 percent for
dependents with no deduction for basic life insurance.
On August 15, 2008 the Office made a preliminary determination that appellant received
a $15,360.15 overpayment from July 10, 2004 to August 2, 2008 because she had no dependents
and was not entitled to augmented compensation during that period.2 Also the Office made no
deductions from compensation for basic life insurance premiums. It found she was not at fault in
the creation of the overpayment.
Appellant requested waiver and a decision on the written evidence. She advised that she
spent the funds and would suffer a severe financial hardship in trying to repay the money.
Appellant completed an overpayment recovery questionnaire showing $2,749.28 in monthly
income, $2,970.00 in monthly expenses and $19,088.09 in assets.
In a decision dated January 12, 2009, the Office found that appellant received a
$15,360.51 overpayment from July 10, 2004 through August 2, 2008 and was not at fault in the
matter. It denied waiver on the grounds that her overpayment recovery questionnaire showed
$654.28 in disposable monthly income and assets of $19,088.09. The Office found it reasonable
to deduct $300.00 from continuing compensation payments to recover the debt, leaving appellant
with $354.00 to meet emergencies in addition to her substantial savings.
Appellant argues on appeal that the Office neglected to include $875.00 in other monthly
expenses when it compared income and expenses. She explained that her actual monthly
expenses left her $220.72 in debt each month, not with disposable monthly income of $654.28,
as was found. In addition, the Office was already reducing her disability checks by $300.00 a
month to correct her compensation, so her monthly debt was approximately $521.00. On that
basis, appellant asked that waiver be granted. She submitted “an itemized list of most
necessities, indispensable items, unavoidable needs each month.”
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Compensation for total
disability is paid at the rate of 66⅔ percent of monthly pay.4 A disabled employee with one or
more dependents is entitled to have basic compensation for disability augmented to 75 percent.5
2

Appellant’s youngest child turned 18 on July 10, 2004.

3

5 U.S.C. § 8102(a).

4

Id. at § 8105.

5

Id. at § 8110(b).

2

Section 8706(b)(2) provides that Federal Employees’ Government Life Insurance
(FEGLI) coverage may continue while a claimant is in receipt of compensation, when the
coverage would otherwise cease. Federal employees are automatically enrolled in basic life
insurance as of the first day of their employment, unless they specifically waive the coverage.
For all claims with a date of injury of January 1, 1990 and later, basic life insurance premiums
are deducted from the claimant’s compensation payments.6
ANALYSIS -- ISSUE 1
There is no dispute about the fact or amount of the overpayment. The Office paid
compensation to appellant at the augmented rate for dependents, 75 percent of monthly pay. But
beginning July 10, 2004, when her youngest turned 18, she had no eligible dependents. So
appellant was no longer entitled to augmented compensation. She should have received
compensation at the regular rate, 66⅔ percent of monthly pay. As the Office continued to pay
her at the augmented rate, an overpayment of compensation was created.
The Office also failed to deduct premiums for basic life insurance from appellant’s
compensation payments. In the absence of a specific waiver of coverage, it should have
deducted the premiums. This caused an additional overpayment of compensation.
The Office ran worksheets showing the amount of compensation actually paid, at the
augmented rate and with no deduction for basic life insurance premiums, and the amount of
compensation appellant should have received, at the regular rate and with premiums deducted.
The difference, representing the amount of the overpayment, was $15,360.51. The Board will
affirm the Office’s January 12, 2009 decision on the issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act provides that when an
overpayment of compensation has been made because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.7 The Office may consider waiving an overpayment only if the
individual to whom it was made was not at fault in accepting or creating the overpayment.8 If
the Office finds that the recipient of an overpayment was not at fault, repayment will still be
required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of the
Act or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.9

6

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Life Insurance, Chapter 5.401.2.a, 4.a
(August 2004).
7

5 U.S.C. § 8129(a).

8

20 C.F.R. § 10.433(a) (1999).

9

Id. at § 10.434.

3

Recovery of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom the Office seeks recovery needs substantially all of her current income, including
compensation benefits, to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed the resource base of $4,800.00 for an individual.10 The
employee’s contribution to the Thrift Savings Plan, and the contribution’s earnings, are
considered assets for purposes of determining waiver.11
An individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. In other words, the amount of monthly funds available for debt
repayment is the difference between current income and adjusted living expenses (i.e., ordinary
and necessary living expenses plus $50.00).12
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes her position for the worse.13 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.14
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in the matter of the overpayment, so she
was eligible for consideration of waiver. But her overpayment recovery questionnaire showed
that she had assets of $19,088.09, substantially exceeding the specified resource base of
$4,800.00 for an individual. By regulation, then, recovery of the overpayment would not cause
hardship and would not defeat the purpose of the Act.
Appellant contends that the Office should grant waiver because she needs all her monthly
income to meet monthly expenses. That alone, however, is not enough to establish that recovery
would defeat the purpose of the Act. “Defeat the purpose of the Act” has two components, both
of which must be met. Appellant would have to establish that she needs substantially all of her
current income, including compensation benefits, to meet current ordinary and necessary living
expenses. She would also have to establish that her assets, including those in her Thrift Savings
Plan, do not exceed $4,800.00. So even if appellant’s expenses did exceed her income, she
would not be entitled to waiver on grounds of hardship.
10

Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (October 2004).
11

Eloise K. Hahn, Docket No 01-1199 (issued June 25, 2002).

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
13

20 C.F.R. § 10.437(b) (1999).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3) (October 2004).

4

Appellant does not argue, and the record does not establish, that recovery of the debt
would be against equity and good conscience. She did not show that she gave up a valuable right
or changed her position for the worse in reliance on the overpayment.
Because recovery of the overpayment would not defeat the purpose of the Act and would
not be against equity and good conscience, the Office properly denied waiver. Appellant must
repay the debt. The Board will affirm the Office’s January 12, 2009 decision on the denial of
waiver.
LEGAL PRECEDENT -- ISSUE 3
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to 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
resulting hardship upon such individual.15
ANALYSIS -- ISSUE 3
The Office found it reasonable to deduct $300.00 from continuing compensation
payments to recover the debt finding that she had $654.28 in disposable monthly income. This
would leave her $354.00 each month to meet emergencies or unexpected expenses.
But appellant’s overpayment recovery questionnaire did not show $654.28 in disposable
monthly income. It showed $2,749.28 in monthly income and $2,970.00 in monthly expenses, or
a monthly debt of $220.72. When the Office made its calculations, it neglected to include
$875.00 appellant listed for “other expenses.” It did not disallow this amount for failure to
submit financial documentation or for other grounds; it simply overlooked the item when it set
out the figures appellant provided. Failure to include “other expenses” caused the Office to
observe: “The expenses reported by the claimant were not substantiated mathematically as the
expenses did not add up to the amount claimed.” But the expenses appellant reported, included
“other expenses,” did add up and they showed no disposable monthly income.
Because the Office mistakenly assumed that the figures appellant provided showed a
disposable monthly income, the Board finds that the Office did not give due regard to appellant’s
financial circumstances when it set the rate of recovery from continuing compensation payments.
The Board will therefore set aside the Office’s January 12, 2009 decision on the issue of
recovery. The Board will remand the case for further development necessary for a proper
consideration of the relevant factors so as to minimize any resulting hardship on appellant, and
for an appropriate final decision on the issue of recovery of the overpayment from continuing
compensation payments.

15

20 C.F.R. § 10.321(a).

5

CONCLUSION
The Board finds that appellant received a $15,360.51 overpayment of compensation and
that the Office properly denied waiver. The Board also finds that further development is
warranted on the issue of recovery.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed on the issues of fact and amount of overpayment
and on the issue of waiver, but is set aside on the issue of recovery. The case is remanded for
further action consistent with this opinion.
Issued: December 28, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6