United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Norfolk, VA,
Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1591
Issued: March 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 25, 2011 appellant, through her attorney, filed a timely appeal from a
December 27, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s entitlement to monetary
compensation effective June 8, 2008, on the grounds she had refused an offer of suitable work
under 5 U.S.C. § 8106(c).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 26, 2003 appellant, then a 48-year-old sorter clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a right knee injury on May 23, 2003. She alleged that
she injured her knee while casing mail. OWCP accepted the claim for right lateral collateral
ligament sprain, right knee lateral meniscus tear and right knee chondromalacia patella. The
record indicates that appellant underwent right knee surgeries for a meniscus tear on June 19 and
August 28, 2003. She worked in a light-duty position and then stopped working and was placed
on the periodic compensation rolls as of March 2005.
In a report dated September 10, 2007, Dr. Phillip LeNoach, an orthopedic surgeon
selected as a second opinion physician, provided a history and results on examination. He stated
that appellant’s total disability had ceased as of July 26, 2007, when she was treated by an
attending orthopedic surgeon, Dr. Arthur Wardell.2 Dr. LeNoach completed an OWCP-5c report
advising that appellant could sit for eight hours, with restrictions on other activity. Appellant
was limited to 10 pounds of pushing and pulling for one hour, with no lifting.
In a letter dated January 14, 2008, OWCP advised appellant that she had been referred to
a vocational rehabilitation counselor. In a report dated February 29, 2008, the rehabilitation
counselor noted that she had met with appellant and the employing establishment would be
contacted to determine job prospects.
On April 7, 2008 the employing establishment provided a written job offer for a modified
clerk position. The job offer stated the duties were casing letters and flats using a distribution
case for eight hours. The physical requirements included lifting/carrying of 10 to 20 pounds
intermittently for up to two hours. On April 13, 2008 appellant refused the offer. She noted that
her refusal was “due to medical problems request to come off OWCP….” The record indicates
that on April 21, 2008 appellant elected Office of Personnel Management (OPM) retirement
benefits effective May 15, 2008.
In a letter dated April 18, 2008, OWCP stated that it appeared appellant had
“discontinued good faith participation in an OWCP-approved job placement program. The
information received shows that you have failed to commit to a considered suitable job offer
with your previous agency.” OWCP discussed the purpose of vocational rehabilitation and
advised that she must make a good faith effort in the placement program. Appellant was advised
to contact OWCP and resume a good faith effort in the job placement program, and “[i]f you
believe you have good reason for not resuming the placement effort, you should so advise this
office in writing, giving the reasons and submitting any supporting evidence.” If she did not
contact OWCP within 30 days and resume a good faith effort in the placement program, or show
good cause for discontinuing her effort, “the rehabilitation effort will be terminated and action
will be taken to reduce your compensation to reflect your wage-earning capacity in a job which
your rehabilitation counselor has found to be within your restrictions and abilities.”

2

The record contains a July 26, 2007 report from Dr. Wardell indicating that appellant could work with
restrictions and a July 27, 2007 OWCP-5c form report (work capacity evaluation) that provided work restrictions.

2

By decision dated June 17, 2008, OWCP terminated entitlement to wage-loss and
compensation benefits and a schedule award effective June 8, 2008 on the grounds that she had
refused to accept suitable work under 5 U.S.C. § 8106(c).
In a letter dated June 16, 2009, appellant’s representative requested reconsideration,
contending that retirement was a valid reason for not accepting the job offer.
By decision dated February 26, 2010, OWCP reviewed the case on its merits and denied
modification. It found the evidence was insufficient to warrant modification. In referring to the
June 17, 2008 decision, OWCP stated that the decision was “based on the claimant’s refusal to
cooperate with ongoing vocational rehabilitation training.” It cited the provisions of 5 U.S.C.
8113(b).
In a letter dated September 24, 2010, appellant, through her representative, again
requested reconsideration. Appellant argues that the employing establishment could not allow
her to accept the job offer because of her status with OPM.
By decision dated December 27, 2010, OWCP reviewed the case on its merits and denied
modification. It stated that appellant declined a suitable job offer and also failed to participate in
vocational rehabilitation.
LEGAL PRECEDENT
Section 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.3 To justify such a termination, OWCP
must show that the work offered was suitable.4 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.5
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work, and allow appellant an opportunity to provide reasons for refusing the offered
position.6 If appellant presents reasons for refusing the offered position, OWCP must inform the
employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
appellant a final opportunity to accept the position.7

3

Henry P. Gilmore, 46 ECAB 709 (1995).

4

John E. Lemker, 45 ECAB 258 (1993).

5

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

6

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

7

Id.

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OWCP procedures provide specific requirements for a termination under 5 U.S.C.
§ 8106(c). The claims examiner (CE) must confirm that the job remains open to the claimant,
document the file using Form CA-110, and then advise the claimant in writing that:
“(1) The job is considered suitable.
“(2) The job remains open for the claimant.
“(3) The claimant will be paid compensation for the difference (if any) between
the pay of the offered job and the pay of the claimant’s date-of-injury job.
“(4) The claimant can still accept the job with no penalty.
“(5) The claimant has 30 days from the date of the CE’s letter to either accept the
job or provide a written explanation of the reason(s) for refusing it.
“(6) A claimant who unreasonably refuses an offer of suitable employment is not
entitled to any further compensation benefits (with the exception of medical
expenses for treatment of the accepted condition).”8
ANALYSIS
OWCP issued a decision dated June 17, 2008 which applied the provisions of 5 U.S.C.
§ 8106(c) for refusal of suitable work. The February 26, 2010 OWCP decision incorrectly
attempted to characterize the decision as being issued pursuant to 5 U.S.C. § 8113(b), which
involves an individual that without good cause fails to apply for and undergo vocational
rehabilitation. This is a different provision of FECA that requires OWCP to make a finding that
absent the failure of undergoing vocational rehabilitation, the wage-earning capacity of the
individual would have substantially increased.9 OWCP may reduce compensation based on the
wage-earning capacity that would have occurred in the absence of the failure to undergo
vocational rehabilitation. In addition, 5 U.S.C. § 8113(b) only continues until the individual in
good faith complies with vocational rehabilitation.10
The December 27, 2010 OWCP decision includes a brief finding that, in addition to
refusing an offer of suitable work, appellant failed to participate in vocational rehabilitation.
There are no references to 5 U.S.C. § 8113(b) or other relevant information. The termination of
compensation effective June 8, 2008 was based on a refusal of suitable work under 5 U.S.C.
§ 8106(c), and there was no final decision properly issued pursuant to 5 U.S.C. § 8113(b).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b) (July 1997).
9

See, e.g., B.A., Docket No. 11-686 (issued October 14, 2011).

10

Id.

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Section 8106(c) is a penalty provision that terminates entitlement to compensation for
wage-loss and schedule award benefits from that date forward.11 The June 17, 2008 OWCP
decision cited 5 U.S.C. § 8106(c), found that appellant had refused an offer of suitable work, and
terminated entitlement to compensation for wage-loss and schedule award benefits.
As noted there are specific, well-established procedural requirements that must be
followed prior to a termination under 5 U.S.C. § 8106(c). It is evident that the procedural
safeguards were not followed in this case. OWCP must advise a claimant that it has found a job
offer to be suitable, explain that the position must be accepted or reasons provided for refusing
the position, provide an opportunity to accept the job or submit such reasons for refusal and
explain the consequences under 5 U.S.C. § 8106(c) for refusing a suitable job.
The April 18, 2008 OWCP letter does not fulfill these requirements. The letter addresses
the issues raised under compliance with vocational rehabilitation pursuant to 5 U.S.C. § 8113(b).
While there is a reference to “a considered suitable job offer,” OWCP does not explain to
appellant that the position must be accepted or specific reasons for refusing the position must be
provided. Moreover, it does not properly advise appellant of the consequences for failing to
accept the job offer or provide adequate reasons for refusing. The April 18, 2008 letter refers
only to the termination of the “rehabilitation effort” and indicates that a wage-earning capacity
issue would be further developed. It does not cite to 5 U.S.C. § 8106(c) or properly explain the
penalty provision of this section.
The Board accordingly finds that the June 17, 2008 OWCP termination decision was
improperly issued as it failed to follow the well-established procedures under 5 U.S.C. § 8106(c).
OWCP did not meet its burden of proof in this case.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate compensation
pursuant to 5 U.S.C. § 8106(c).

11

See Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 27, 2010 is reversed.
Issued: March 5, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BASE FIRE DEPARTMENT,
Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 19-1223
Issued: March 25, 2021

Case Submitted on the Record

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

JURISDICTION
On May 12, 2019 appellant filed a timely appeal from an April 9, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated
July 22, 2020, the Board exercised its discretion and denied the request as the matter could be adequately addressed
based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 19-1223 (issued
July 22, 2020).
2
The Board notes that following the April 9, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $27,889.50 for the period February 1, 2014 through July 21, 2018, for which he was
without fault, because he concurrently received FECA wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits without an appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $400.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On April 17, 2000 appellant, then a 51-year-old fire inspector, filed a traumatic injury claim
(Form CA-1) alleging that on April 17, 2000 he injured his low back when he stood up from a
leaning position while in the performance of duty. He stopped work on that date. OWCP accepted
appellant’s claim for low back radiculitis and paid wage-loss compensation on the supplemental
rolls, effective June 2, 2000. It placed him on the periodic rolls, effective August 13, 2000.
In a letter dated January 3, 2011, OWCP advised appellant that his Federal Employees
Retirement System (FERS) benefits would be reduced by the amount of SSA age-related
retirement benefits that he received that were attributable to his federal service. It advised him
that failure to report receipt of such retirement benefits to OWCP may result in an overpayment of
compensation.
Appellant submitted CA-1032 forms completed on February 20, 2014, May 26, 2015, and
February 27, 2016, in which he responded “No,” indicating that he had not received SSA
retirement benefits as part of an annuity for federal service.
In a Form CA-1032 completed on February 20, 2017, appellant indicated that he received
$1,188.00 in retirement benefits monthly from SSA as part of an annuity for federal service.
On May 19, 2017 an SSA representative provided OWCP a FERS/SSA dual benefit
calculation worksheet. SSA provided corresponding monthly SSA benefit rates beginning
February 2014 with and without appellant’s FERS contributions. With FERS, appellant was
entitled to a monthly payment of $1,271.50 effective February 2014; $1,293.10 effective
December 2014; $1,293.10 effective December 2015; and $1,296.90 effective December 2016.
Without FERS, he was entitled to a monthly payment of $760.80 effective February 2014; $773.70
effective December 2014; $773.70 effective December 2015; and $775.90 effective
December 2016.
In a Form CA-1032 completed on February 15, 2018, appellant responded “No” indicating
that he had not received retirement benefits from SSA as part of an annuity for federal service.
In a letter dated April 4, 2018, B.C., an injury compensation management adviser for the
employing establishment, indicated that on May 9, 2017 SSA had provided OWCP with a
FERS/SSA dual benefit calculation worksheet for the period 2014 through 2016. She explained

2

that since OWCP had failed to offset appellant’s wage-loss compensation prior to December 2017,
OWCP would need to request offset amounts for 2017.
On May 24, 2018 an SSA representative provided OWCP with an updated FERS/SSA dual
benefit calculation worksheet that included the monthly SSA benefits rates effective
December 2017. With FERS, appellant was entitled to a monthly payment of $1,322.80, effective
December 2017. Without FERS, he was entitled to a monthly payment of $801.80, effective
December 2017.
OWCP completed a FERS offset calculation worksheet on October 6, 2018. It calculated
the overpayment amount by determining the monthly FERS offset amount and then converted that
amount to the 28-day FERS offset amount for each period. After determining the daily offset
amount, OWCP multiplied this amount by the number of days in each period. It determined that
for the period February 1 through November 30, 2014, appellant received an overpayment of
$5,101.39. For the period December 1, 2014 through November 30, 2015, OWCP calculated an
overpayment of $6,249.92. For the period December 1, 2015 through November 30, 2016, it
calculated an overpayment of $6,267.05. For the period December 1, 2016 through November 30,
2017, OWCP calculated an overpayment of $6,269.18. For the period December 1, 2017 through
July 21, 2018, it calculated an overpayment of $4,001.97. The total overpayment amount was of
$27,889.50.
On August 14, 2018 OWCP advised appellant that it was adjusting his wage-loss
compensation, effective July 22, 2018, to offset the portion of his SSA age-related retirement
benefits attributable to his federal service. It informed him that the portion of the SSA benefits
that he earned as a federal employee was part of the FERS retirement package and that FECA did
not allow the simultaneous receipt of workers’ compensation and federal retirement benefits.
Beginning July 22, 2018, OWCP paid appellant at the adjusted amount of $803.68 to
include the offset of his SSA age-related retirement benefits attributable to his federal service.
In a preliminary overpayment determination dated August 20, 2018, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $27,889.50
because it had failed to reduce his wage-loss compensation benefits for the period February 1,
2014 through July 21, 2018 by the portion of his SSA benefits that were attributable to federal
service. It further advised him of its preliminary determination that he was at fault in the creation
of the overpayment because he accepted payments that he knew or reasonably should have known
were incorrect. OWCP provided appellant an overpayment action request form and an
overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified him that within
30 days of the date of the letter he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing.
On August 27, 2018 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review on the issues of fault and possible waiver of
overpayment. He alleged that he was not at fault in the creation of the overpayment because he
never intentionally submitted any false documents or information.

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On January 20, 2019 OWCP received a statement from appellant. Appellant explained that
an online statement showed a bill dated December 21, 2018 that was paid $208.96. He also
explained that he purchased approximately two cords of firewood for $250.00. Appellant
submitted bills from a utility company dated October 24 and November 26, 2018 in the amount of
$89.27 and $121.15, respectively; mortgage bills dated November 1, 2018 and January 1, 2019 in
the amount of $699.70; telephone bills dated November 9 and December 9, 2018 and January 9,
2019 in the amount of $61.90, $86.14, and $86.13 respectively; and six-month auto policy bills
for $449.49 and $456.36. He submitted a credit union statement dated December 31, 2018, which
revealed that he had $18,325.55 in a money market account and $10,073.26 in a shared account.
OWCP also received a statement with the title “Expenses.” Appellant noted that he bought
a two-story, 100-year-old cabin about 3 years ago with plans to do most of the needed work on the
house himself. He noted that estimates on solar installation ranged from $22,000.00 to $28,000.00.
Appellant contended that having his benefits cut would make some improvements untenable. He
reported that he had just over $60,000.00 in the bank. Appellant alleged that it would be ruinous
to require him to pay for OWCP’s error.
A prerecoupment hearing was held on January 23, 2019. Appellant explained that he did
not even know how much money he got from SSA. He alleged that he submitted all the
documentation that was requested of him, that he refused money from the government because he
did not want the government to pay for certain items, and described the work and awards that he
had received as a fire inspector. The hearing representative advised appellant to complete the
Form OWCP-20 and provide supporting documentation so that OWCP could determine whether
he qualified for waiver of recovery of the overpayment based on his financial information.
On January 31, 2019 OWCP received appellant’s completed Form OWCP-20. Appellant
advised that his income consisted of $1,188.00 in supplemental benefits and $1,365.48 in
Department of Veterans Affairs disability benefits for a total monthly income of $2,553.48. He
listed expenses as $699.70 for a mortgage, $450.00 for food, “average-less” for clothing, $533.00
for utilities, $456.36 for automobile insurance, $137.00 for electric, $40.00 for gas, $86.14 for
telephone, $143.60 for auto expenses, $70.00 for fuel, $100.00 for miscellaneous health, $100.00
in supplements, $250.00 for seasonal firewood, and $200.00 for house repairs. Appellant reported
funds of $2,482.00 in his checking account, $8,500.56 in his savings account, and $18,300.00 in a
money market account. He also indicated that he was informed that he had four certificate of
deposits (CDs) estimated at $10,000.00 each. Appellant estimated the value of his house to be
$122,000.00.
In an undated letter, appellant noted that he would never knowingly defraud his own
government. He described several situations where he refused prescriptions for a whirlpool/spa,
endless pool, and walk-in shower because he thought it was asking too much of the government.
Appellant noted that he was a veteran and fire protection specialist for the government and
described the hazardous environment to which he had been exposed. He alleged that it was
unfathomable to him to be held responsible for the government’s mistake. Appellant indicated
that while he had money saved in the bank, he went without many things for many years in order
to accrue that money.

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By decision dated April 9, 2019, an OWCP hearing representative affirmed the August 20,
2018 preliminary overpayment determination with modification. She found that appellant had
received an overpayment of compensation in the amount of $27,889.50 for the period February 1,
2014 through July 21, 2018 because he received SSA benefits in addition to his wage-loss
compensation benefits under FECA without a proper offset. However, the hearing representative
found that appellant was without fault in the creation of the overpayment. She denied waiver of
recovery of the overpayment, however, because appellant’s monthly income exceeded his monthly
expenses by more than $50.00 and his assets exceeded the resource base of $6,200.00. The hearing
representative required recovery of the overpayment by deducting $400.00 every 28 days from
appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$27,889.50 for the period February 1, 2014 through July 21, 2018, for which he was not at fault,
because he concurrently received FECA benefits and SSA age-related retirement benefits without
an appropriate offset.
SSA paid appellant age-related retirement benefits retirement February 1, 2014. OWCP
paid wage-loss compensation benefits until July 21, 2018 without offsetting the portion of the SSA
age-related retirement benefits due to his federal service. As discussed, a claimant cannot receive
both compensation for wage loss and the portion of SSA age-related retirement benefits that are
attributable to his federal service for the same period.7 Because appellant received SSA benefits
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

6

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

7

Id.; see also L.G., Docket No. 19-1274 (issued July 10, 2020).

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based on his federal service concurrently with wage-loss compensation benefits from OWCP
without an appropriate offset, OWCP properly determined that appellant received an overpayment
of compensation.
To determine the amount of the overpayment, OWCP must calculate the portion of the
SSA benefits that were attributable to federal service. It received documentation from SSA
providing appellant’s SSA rate with FERS and without FERS for the period February 1, 2014
through July 21, 2018. OWCP provided its calculations for each period based on an SSA
worksheet in an overpayment worksheet explaining the overpayment calculation which has a
minor addition error of 10 cents.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 1, 2014 through July 21, 2018 and finds that an overpayment of compensation in
the amount of $27,889.50 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.9
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.10
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics.11 An individual’s liquid assets include, but
are not limited to case, the value of stocks, bonds, savings accounts, mutual funds, and certificates
of deposits.12 Nonliquid assets include, but are not limited, to the fair market value of an owner’s
equity in property such as a camper, boat, second home, and furnishings and supplies.13 An
8

See R.B., Docket No. 19-0571 (issued June 12, 2020); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C.,
Docket No. 17-0559 (issued June 21, 2018).
9

5 U.S.C. § 8129(a)-(b).

10

C.B., Docket No. 20-0031 (issued July 27, 2020); L.S., 59 ECAB 350 (2008).

11

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(3) (September 2018).
12

Federal (FECA) Procedure Manual, id. at Chapter 6.400.4(b)(3) (September 2018).

13

Id.

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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
$50.00.14
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.15 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.17 The hearing
representative considered appellant’s financial assets to determine if recovery of the overpayment
would defeat the purpose of FECA. Appellant provided his currently monthly income and
expenses in a Form OWCP-20 on January 31, 2019, as well as a summary of his assets. The
hearing representative properly determined that appellant listed available assets of $69,282.72,
which included $2,482.16 in his checking account, $8,500.56 in a credit union account, $18,300.00
in a money market account, and approximately $40,000 in CDs. The evidence of record therefore
established that appellant’s assets exceeded the base asset amount of $6,200.00 for an individual.18
It was therefore unnecessary for OWCP to consider whether his monthly income exceeded his
monthly ordinary and necessary expenses by more than $50.00.
Additionally, the evidence does not demonstrate that repayment of the overpayment would
be against equity and good conscience. Appellant submitted no evidence that he relied upon the
incorrect payments to his detriment. Furthermore, he has not known that he would experience
severe financial hardship in attempting to repay the debt as his current monthly income exceeds

14

Federal (FECA) Procedure Manual, supra note 11, at Chapter 6.400.4(a)(3) (September 2018).

15

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16

Federal (FECA) Procedure Manual, supra note 11 at Chapter 6.400.4c(3) (September 2018).

17

Supra note 12.

18

See I.U., Docket No. 20-0129 (issued July 31, 2020).

7

his monthly expenses and he is still in receipt of ongoing compensation benefits. Accordingly,
OWCP properly denied waiver of the overpayment.19
On appeal appellant alleges that payment would impact his income and quality of life
seriously as he is now 70 years old and had no way of implementing any addition to his income.
As noted, a finding that a claimant was without fault does not automatically result in waiver of the
overpayment.20 OWCP must determine whether recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience. As explained above, OWCP properly
denied waiver of recovery as recovery of the overpayment would not defeat the purpose of FECA
or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations21 provides in pertinent part:
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
the error is discovered or his or her attention is called to the same. If no refund is
made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$400.00 from appellant’s continuing compensation payments every 28 days.
The record supports that, in requiring repayment of the overpayment by deducting $400.00
from appellant’s compensation payments every 28 days, OWCP took into consideration the
financial information he submitted as well as the factors set forth in 20 C.F.R. § 10.441 and found
that this method of recovery would minimize resulting hardship. Therefore, OWCP properly
required recovery of the overpayment by deducting $400.00 every 28 days.23
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$27,889.50 for the period February 1, 2014 through July 21, 2018, for which he was without fault,
because he concurrently received FECA benefits and SSA age-related retirement benefits without
19

See id.; see also J.R., Docket No. 17-0181 (issued August 12, 2020).

20

Supra note 13.

21

20 C.F.R. § 10.441(a).

22

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

23

See L.G., Docket No. 19-1274 (issued July 10, 2020).

8

an appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of
the overpayment and properly required recovery of the overpayment by deducting $400.00 from
his continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2021
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MAINTENANCE DEPARTMENT, OFFUTT
AIR FORCE BASE, NE, Employer
__________________________________________

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Appearances:
Mandy L. Strigenz, Esq., for the appellant
Candyce D. Phoenix, Esq., for the Director

Docket No. 10-2384
Issued: July 15, 2011

Case Submitted on the Record

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

JURISDICTION
On September 29, 2010 appellant filed a timely appeal from the August 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
November 9, 2007 work injury. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on November 9, 2007.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 9, 2007 appellant, then a 61-year-old maintenance mechanic supervisor,
was under a fixed work schedule at Offutt Air Force Base which specified that he report to work
at 7:30 a.m. and leave work at 4:15 p.m. each workday. He indicated in his statements that he
arrived at the base in his personal vehicle on November 9, 2007 at 6:00 a.m., intending to have
breakfast at a Burger King on the premises before reporting for his shift. The entrance at which
appellant arrived, known as the Bellevue guard gate, was approximately one mile from his
primary work location and led to a mall accessible by all those with authorized access to the
base. Shortly after he passed through the Bellevue guard gate, automatic vehicle barriers quickly
deployed in front of him and he was not able to stop his vehicle in time. Appellant crashed into
the barriers and suffered injuries to his neck and right arm. Military police responded to the
accident and appellant, at the request of his supervisor, completed an accident report. Appellant
stopped work and used sick leave.
Appellant initially sought relief under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2671 et seq. In a May 11, 2010 decision, the United States District Court for the District of
Nebraska issued a stay in his FTCA case and ordered him to seek relief under FECA. On
June 25, 2010 appellant filed a traumatic injury claim (Form CA-1) alleging a November 9, 2007
work injury.
In an August 9, 2010 decision, OWCP denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to show that he sustained a work-related injury on
November 9, 2007. Appellant then submitted medical reports in support of his claim.
In an August 20, 2010 decision, the Office affirmed its August 9, 2010 decision as
modified to reflect that appellant did not establish that his claimed November 9, 2007 injury
occurred in the performance of duty. OWCP accepted that appellant was on the employer
premises at the time of his claimed injury, but found that the accident did not occur within a
reasonable interval before the usual start of his work shift.
LEGAL PRECEDENT
Under FECA, a claimant bears the burden of proving all essential elements of a claim,
including that the alleged injury occurred in the performance of duty.2 Board precedent requires
that an injury sustained in the performance of duty must have arisen: (1) at a time when the
employee may reasonably be said to be engaged in his masters business; (2) at a place where he
may reasonably be expected to be in connection with the employment; and (3) while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.3
The Board has included within the performance of duty a reasonable time before and
after work to allow for coming and going, as well as personal ministrations, such as lunch or
2

20 C.F.R. § 10.115.

3

Mary Keszler, 38 ECAB 735 (1987).

2

bathroom breaks, engaged in for the benefit of the employer.4 If the injury does not take place
during those periods or on employer premises, the Board will place special emphasis on whether
the employee was engaged in an activity related to fulfilling the duties of his employment.5
In Nona J. Noel6 the employee was a civilian employed on a United States Air Force
Base, with a regular working schedule comprised of fixed hours. She arrived one and a half
hours before her scheduled start time, intending to eat breakfast at the noncommissioned Officers
Club on base, when she fell on a sidewalk and sustained injuries. The Board found that eating
breakfast on the premises conferred no substantial benefit to the employer and that there was no
evidence that the employer expressly or impliedly required the employee to eat on the base.
Considering both the time of the claimed injury and the lack of employer benefit, the Board ruled
that the employee’s activity was outside the scope of employment and her injuries were not
compensable under FECA.7
In a more recent case, the Board denied compensation to an employee who tripped on a
loose floorboard after arriving at work 25 minutes early to get coffee and breakfast.8 In
William W. Knispel,9 the Board found that a claimed injury did not occur in the performance of
duty when an employee stayed late to catch a public bus and was subsequently injured in a
bicycle accident on the employer premises 45 minutes after his shift ended. In George E.
Franks,10 an employee failed to establish an injury in the performance of duty with respect to a
fall in the parking lot of an Army base that occurred 45 minutes prior to the start of his shift. The
Board found that the action he was performing at the time, getting coffee and breakfast, was
solely personal in nature.
The Board has permitted relief for employees on employer premises when the claimed
injury occurred during a reasonable time before or after work or, in the case of injuries occurring
far outside regular work hours, when the employee was acting in service of the employer.11 For
example, in John F. Castro,12 the Board granted recovery when an employee was injured in an
automobile accident at a naval station five minutes after the end of his shift.13 It found that such
a short time period fell within the scope of a reasonable interval before coming to or leaving
4

George E. Franks, 52 ECAB 474 (2001).

5

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989).

6

36 ECAB 329 (1984).

7

Id.

8

T.F., Docket No. 09-154 (issued July 16, 2009).

9

56 ECAB 639 (2005).

10

52 ECAB 474 (2001).

11

See William W. Knispel, supra note 8.

12

Docket No. 03-1653 (issued May 14, 2004).

13

Id.

3

from work. However, in Catherine Callen,14 the employee was found to be in the performance
of duty under FECA for an injury sustained on the employer premises six hours after the end of
her regular shift, primarily because she remained on the premises to complete a project for her
employer.
ANALYSIS
The Board finds that appellant’s claimed injury on November 9, 2007 did not occur in the
performance of duty and the Office properly denied his claim on this basis.
In the present case, appellant has not shown that his presence on the Offutt Air Force
Base on November 9, 2007 was during a reasonable interval before work. His usual work shift
began at 7:30 a.m. and he arrived at work at 6:00 a.m. on November 9, 2006. At the time of his
November 9, 2007 accident, appellant had entered the base and was traveling on a road
accessible only to authorized base personnel. However, mere presence on the employer’s
premises would not alone be sufficient to establish appellant’s claim. Appellant arrived to work
one and a half hours before the start of his shift and such an early arrival is outside the scope of
reasonable allowance for entrance and egress. The time he entered the base before the usual
start of his work shift was more than the five minutes in John F. Castro,15 where the employee’s
claim was accepted, and identical to the time interval before work of one and a half hours in
Nona J. Noel, where the employee’s claim was denied.16
Appellant did not show that he was on the premises at the time of his accident to perform
any job duties or actions otherwise incidental to his work. He arrived early for the purpose of
eating breakfast at Burger King. Similar to the circumstance of other Board cases delineated
above, appellant’s eating breakfast before his shift, under the facts of the present case, would not
be in the service of the employing establishment.17 There is no indication that his job duties
(express or implied) required him to arrive so early or to eat breakfast at Burger King.
Appellant’s early arrival was solely for his personal benefit. Consequently, his injuries were not
sustained in the performance of duty.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on November 9, 2007.

14

47 ECAB 192 (1995).

15

See supra note 8.

16

See supra notes 6 and 7.

17

See supra notes 6, 7, 8 and 9.

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ORDER
IT IS HEREBY ORDERED THAT the August 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Ribbonwood, CA, Employer
__________________________________________

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

Docket No. 20-1471
Issued: June 23, 2021

Case Submitted on the Record

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

JURISDICTION
On August 4, 2020 appellant filed a timely appeal from a July 21, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the July 21, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he was disabled
from work for the period February 9 through March 24, 2020 causally related to his accepted
November 28, 2018 employment injury.
FACTUAL HISTORY
On November 28, 2018 appellant, then a 49-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on November 28, 2018 he injured his right index finger
while in the performance of duty. OWCP accepted the claim for a contusion of the right index
finger without damage to the nail. It subsequently expanded acceptance of the claim to include
impingement syndrome of the right shoulder. OWCP paid appellant wage-loss compensation on
the supplemental rolls from January 13 through March 2, 2019.
On February 1, 2019 Dr. Veerinder S. Anand, a Board-certified orthopedic surgeon, found
that appellant could return to work with restrictions of no use of the right hand.
On March 1, 2019 appellant accepted a full-time modified position with the employing
establishment. The duties of the position included monitoring radio communications and entering
data. The position did not require use of the right hand.
On January 10, 2020 the employing establishment removed appellant from employment
due to his inability to perform the duties of his position. It indicated that on August 19, 2019
Dr. Brian Hurley, a Board-certified psychiatrist, had found that appellant could not perform the
duties of a border patrol agent as he could not safely and effectively carry a weapon, drive, or
perform law enforcement duties. The employing establishment noted that this finding was
consistent with that of Dr. Alan Abrams, a Board-certified psychiatrist. It found that appellant was
unable to resume his duties as a border patrol agent for the foreseeable future. The employing
establishment indicated that it had considered reassigning him, but that, in view of the seriousness
of his condition, it had concluded that removal was “in the best interest of the [employing
establishment].”
A notification of personnel action (Form SF-50) effective January 11, 2020 indicated that
appellant had been removed from employment due to the inability to perform the duties of his
position.
In a disability form dated January 22, 2020, Dr. Anand indicated that appellant had
medically retired.
On February 14, 2020 Dr. James R. McClurg, a Board-certified orthopedic surgeon,
obtained a history of appellant sustaining an employment injury to his index finger and shoulder
on November 28, 2018. He noted that a nerve conduction velocity study performed on April 16,
2019 had revealed moderate bilateral ulnar neuropathy at the elbow and mild bilateral carpal tunnel
syndrome. Dr. McClurg diagnosed a crushing injury of the right index finger and right carpal
tunnel syndrome. He recommended a right carpal tunnel release. Dr. McClurg noted that
appellant felt that he could not perform his employment duties.

2

On March 24, 2020 appellant filed a claim for compensation (Form CA-7) for disability
from February 9 through March 24, 2020.
In a development letter dated March 31, 2020, OWCP advised appellant that it required
additional evidence supporting that he was disabled during the claimed period. It informed him
of the evidence necessary to establish his claim for disability compensation, including a detailed
report from his treating physician providing a history of the accepted employment injury and
explaining how his employment-related condition worsened such that he was unable to work
beginning February 9, 2020. OWCP afforded appellant 30 days to submit the necessary
information.
Thereafter, OWCP received August 9, September 4, and October 1, 2019 work status
reports from Dr. Anand. Dr. Anand found that appellant could not perform high impact physical
work, use firearms, or perform dispatcher duties.
In a work status report dated March 11, 2020, Dr. Anand found that appellant could lift up
to 15 pounds and use no firearms or forceful gripping. In an impairment evaluation of even date,
he noted that appellant had an injury to his right index finger and shoulder on November 28, 2018.
Dr. Anand advised that appellant had reached maximum medical improvement after his work
injury. He indicated that appellant was unable to use a gun and, thus, it was unlikely that appellant
could resume his usual employment. Dr. Anand noted that appellant had medically retired.
In an April 10, 2020 statement, appellant related that in March 2019 the employing
establishment had assigned him to a position that required monitoring a high volume of radio
traffic and preparing daily reports. He advised that performing these duties had aggravated his
injury and also resulted in an injury to his left hand and wrist. Appellant asserted that he had
requested assistance performing the duties of his position and a Form CA-1 for his left hand and
wrist condition, but management refused. He related that his physician had found that he could
not perform his dispatch assignment in work status reports dated August 9 to November 27, 2019.
Appellant noted that the position involved extensive typing and required significant use of the
arms. He asserted that the employing establishment had denied his request for copies of medical
records.
In an April 14, 2020 report of telephone call, appellant indicated that the employing
establishment had dismissed him from employment due to medical reasons.
By letter dated April 22, 2020, OWCP noted that Dr. McClurg had requested authorization
to perform carpal tunnel surgery and a revision of the finger/toe nerve. It requested a reasoned
report addressing whether the diagnosed condition of carpal tunnel syndrome was causally related
to the November 28, 2018 employment injury.
In an April 28, 2020 progress report, Dr. McClurg discussed appellant’s history of a
November 28, 2018 employment injury. He diagnosed a crushing injury of the right index finger
and right carpal tunnel syndrome and noted that he had requested surgical authorization.
Dr. McClurg indicated that appellant was not gainfully employed.
On May 28, 2020 Dr. McClurg again provided the history of the November 28, 2018
employment injury. He attributed appellant’s carpal tunnel syndrome to the accepted employment
3

injury, noting that appellant had positive electrodiagnostic testing. Dr. McClurg referred to his
prior reports for additional information regarding causal relationship.
By letter dated June 24, 2020, OWCP requested that the employing establishment explain
why appellant was unable to perform the duties of his modified position and whether his inability
to work was causally related to his accepted employment injury.
In a July 7, 2020 report of telephone call (Form CA-110), the employing establishment
advised that it could not legally release the findings from the fitness-for-duty report.
In a letter dated July 7, 2020, the employing establishment advised that appellant had
undergone a fitness-for-duty evaluation “following unusual behaviors identified while on duty. In
this evaluation the employee underwent medical and psychiatric examination.” It indicated that
he had been found unfit to perform his essential duties without restrictions. The employing
establishment advised that it had terminated appellant due to nonemployment-related conditions.
On July 8, 2020 the employing establishment indicated that it would have continued to
accommodate that appellant had not been terminated due to conditions unrelated to his work injury.
By decision dated July 21, 2020, OWCP denied appellant’s claim for compensation for
disability for the period February 9 through March 24, 2020.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled for work as
a result of the accepted employment injury.5 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
3

Id.

4

See T.A., Docket No. 18-0431 (issued November 7, 2018).

5

See L.G., Docket No. 19-0324 (issued January 2, 2020); M.C., Docket No. 18-0919 (issued October 18, 2018).

6

See K.C., Docket No. 17-1612 (issued October 16, 2018).

7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

8

See G.T., Docket No. 18-1369 (issued March 13, 2019); L.W., Docket No. 17-1685 (issued October 9, 2018).

4

capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.10
If an employee resigns his or her employment or is terminated from employment for cause,
the Board has explained that the issue remains whether he or she had established disability causally
related to the accepted injury, i.e., whether appellant was able to earn the wages he or she was
earning on the date of injury.11 Where employment is terminated, disability benefits would be
payable if the evidence of record established that the claimant was terminated due to injury-related
physical inability to perform assigned duties or the medical evidence established that the claimant
was unable to work due to an injury-related disabling condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work for the period February 9 through March 24, 2020 causally related to his
accepted November 28, 2018 employment injury.
Appellant returned to modified employment following his November 28, 2018
employment injury on March 1, 2019. On January 10, 2020 the employing establishment removed
him from employment based on his inability to perform his regular employment duties. In its
January 10, 2020 removal notice, the employing establishment indicated that two physicians had
found that appellant was unable to safely perform the duties of a border patrol agent. It advised
that it had considered reassigning him to another position, but decided that removal was in the best
interest of the agency.
In response to an inquiry from OWCP, the employing establishment asserted that it had
obtained a fitness-for-duty evaluation after appellant had exhibited “unusual behavior” at work. It
related that he had undergone a medical and a psychiatric evaluation and was found unfit to
perform the essential duties of his position without restrictions. The employing establishment
advised that the termination resulted from nonemployment-related conditions
As appellant was terminated from employment unrelated to his employment injury, the
issue is whether the medical evidence establishes that he was unable to perform his assigned duties
as a result of the accepted employment injury.13 The Board finds that he has not submitted
sufficient evidence to support employment-related disability from February 9 through
March 24, 2020.
9

See D.G., Docket No. 18-0597 (issued October 3, 2018).

10

See D.R., Docket No. 18-0232 (issued October 2, 2018); Merle J. Marceau, 53 ECAB 197 (2001).

11

L.W., Docket No. 15-1962 (issued March 3, 2016); D.M., Docket No. 14-0887 (issued October 2, 2014).

12

See D.H., Docket No. 17-0818 (issued May 14, 2018); Ralph Dennis Flanagan, Docket No. 94-1569 (issued
May 28, 1996).
13

D.H., id., see John W. Normand, 39 ECAB 1378 (1988).

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In a report dated February 14, 2020, Dr. McClurg noted appellant’s history of an injury to
his index finger and shoulder on November 28, 2018 at work. He diagnosed right carpal tunnel
syndrome and a crush injury of the right index finger. Dr. McClurg indicated that appellant
believed that he was unable to perform the duties of his employment. While he noted appellant’s
belief that appellant was unable to work, he did not provide his own opinion regarding disability
from employment. A physician’s report is of little probative value when it is based on a claimant’s
belief rather than the physician’s independent judgment.14
In a March 11, 2020 report, Dr. Anand opined that appellant was unable to resume his usual
employment as appellant could not use a firearm and attributed his restrictions to his employment
injury. In a work status report of the same date, he provided restrictions of no lifting over 15
pounds, use of firearms, or gripping forcefully. Dr. Anand did not, however, address the relevant
issue of whether appellant could perform the duties of his modified employment. Therefore, his
opinion is insufficient to meet appellant’s burden of proof.15
On April 28, 2020 Dr. McClurg diagnosed a right index finger crush injury and right carpal
tunnel syndrome. He provided the history of the November 28, 2018 employment injury and
requested surgical authorization. In a May 28, 2020 report, Dr. McClurg attributed appellant’s
carpal tunnel syndrome to his accepted employment injury. While he noted that appellant was not
gainfully employed, he did not address the relevant issue of whether appellant was disabled as a
result of his employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.16 Thus, Dr. McClurg’s reports are insufficient to meet appellant’s
burden of proof.
On appeal, appellant contends that the employing establishment removed him from
employment due to his inability to perform his work duties as a result of his employment injury.
He advised that he had been unable to perform the duties of the modified position due to his work
restrictions. Appellant advised that the employing establishment had delayed processing his Form
CA-7. As discussed, however, the evidence supports that the employing establishment removed
him from employment for reasons unrelated to his November 28, 2018 work injury and that his
modified employment would have remained available if he had not been terminated from
employment. The Board has held that, when a claimant stops work for reasons unrelated to his or
her accepted employment injury, he or she has no disability within the meaning of FECA.17

14

M.C., supra note 5; Earl David Seale, 49 ECAB 152 (1997).

15

See E.M., Docket No. 20-0668 (issued April 28, 2021).

16

B.C., Docket No. 18-0692 (issued June 5, 2020).

17

See S.I., Docket No. 18-1582 (issued June 20, 2019); V.M., Docket No. 16-0062 (issued May 18, 2016).

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Appellant failed to submit rationalized medical evidence sufficient to establish causal
relationship between his claimed disability and the accepted employment injury. Consequently,
he has not met his burden of proof.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work for the period February 9 through March 24, 2020 causally related to his
accepted November 28, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See J.T., Docket No. 19-1813 (issued April 14, 2020).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION TEXARKANA, Texarkana, TX,
Employer
__________________________________________

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

Docket No. 19-1751
Issued: April 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 19, 2019 appellant, through counsel, filed a timely appeal from a March 11,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before th e Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On September 6, 2018 appellant, then a 33-year-old cook foreman, filed an occupational
disease claim (Form CA-2) alleging an emotional condition as a result of factors of his federal
employment. He stated that his condition occurred due to his day to day interaction with inmates.
Appellant noted that he watches inmates cook meals on a day-to-day basis and that he is on the
defensive when he is around inmates in the kitchen. He reported that he first became aware of his
condition and its relationship to his federal employment on September 2, 2018. Appellant stopped
work on September 3, 2018.
On September 6, 2018 OWCP received an undated note from William Eldridge, a social
worker, who recommended that appellant be placed on a six-week leave of absence due to stress.
Mr. Eldridge recommended that appellant avoid being around inmates or stressful situations.
In a development letter dated September 20, 2018, OWCP informed appellant of the
deficiencies of his claim and requested that he submit additional factual and medical evidence,
including a detailed description of the implicated work factors which he alleged caused his
emotional condition in addition to a well-rationalized report from his physician regarding the cause
of his emotional condition. It requested that he respond to the questions in an attached
questionnaire and return it to OWCP. On the same date, a development letter was sent to the
employing establishment requesting a response to appellant’s allegations. OWCP afforded both
parties 30 days to respond.
OWCP received a September 19, 2018 note from Craig Mueller, a family nurse
practitioner, who reiterated Mr. Eldridge’s recommendation for a six-week leave of absence.
Further, OWCP received duplicate reports dated October 16, 2018 from Dr. Tom Wright,
a licensed clinical psychologist. Dr. Wright indicated that he had treated appellant on and off from
2008 to 2010 for post-traumatic stress disorder (PTSD) “brought on by Middle East combat
experiences including immediate visual proximity to sudden violent death, believing himself
responsible for sudden violent death, being under personal threat and threat to companions of
sudden violent death.” He noted that appellant had numerous symptoms and that every available
treatment modality had been tried, but that they were met with limited success. Dr. Wright noted
that he was unable to recommend a line of work where it would be reasonable to anticipate a
remission of symptoms.
On November 19, 2018 OWCP received another undated note from Mr. Eldridge,
indicating that he saw appellant for six counseling sessions from September 4 to October 9, 2018.
Mr. Eldridge determined that appellant should not be around inmates or stressful work situations
until he was thoroughly assessed by his psychologist or psychiatrist. He noted that appellant
reported an increase in psychological sensitivity over the last seven months due to work-related
stress.

2

By decision dated December 12, 2018, OWCP denied appellant’s claim for an
employment-related emotional condition. It noted his allegation that watching inmates cook the
meals and dealing with inmates on a daily basis contributed to his condition, but denied his claim
on the factual component of the third basic element because he had not responded to the
questionnaire. OWCP found that the evidence of record failed to support that appellant actually
experienced the employment incident(s) alleged to have occurred. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On January 11, 2019 appellant requested reconsideration.
In an undated report, received on January 7, 2019, Dr. Wright noted that he had treated
appellant since his return from Iraq and that he suffered from PTSD related to combat experiences
while working as a civilian contractor. He noted that his last clinical contact was on
January 3, 2019. Dr. Wright reported that appellant was subjected to constant harassment at the
employing establishment by the employee whose position and or promotion appellant had been
given because of his overseas service. He diagnosed PTSD and recommended continuation of
medication, therapy, and monitoring for suicidal ideation.
By decision dated March 11, 2019, OWCP denied modification of the prior decision. It
explained that appellant failed to submit a detailed statement as requested on September 20, 2018
and that without the detailed information it was unable to perform its adjudicatory function of
determining the truth of his allegations and whether the factors claimed to have caused his
condition to fell within the coverage of FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion

4

See supra note 2.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

3

evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 8 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.9
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and which working conditions are not deemed factors of employment and
may not be considered. 10 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition while in the performance of duty, as alleged.
Appellant filed an occupational disease claim on September 6, 2018 alleging that his
interaction with inmates on a daily basis, including watching inmates cook meals in the kitchen,
resulted in the development of an emotional condition.
On September 20, 2018 OWCP asked appellant to complete a questionnaire and provide a
detailed description of the work factors that caused his condition, including the dates of the alleged
/incidents and the names of any involved parties. However, appellant has not responded and
therefore has not provided OWCP with the information necessary to adjudicate his emotional
condition claim. To meet his burden of proof a claimant must specifically identify the employment

7

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

L.S., Docket No. 18-1471 (issued February 26, 2020); see Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11

Id.

4

factors or incidents alleged to have caused his condition and establish a factual basis for his
allegations with probative and reliable evidence. 12
The Board finds that appellant has not met his burden of proof to establish his claim as he
has not adequately described to OWCP the work factors which he alleges caused him to sustain an
emotional condition.13
As appellant has not established that a compensable factor of employment, it is unnecessary
to address the medical evidence of record. 14
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.

12

Id.

13

The Board notes that appellant’s medical records appear to support a severe psychiatric condition with his
attending physician suggesting total disability. To the extent that appellant may not be mentally capable of compiling
the necessary claim information, the employing establish may be requested to provide further information. See Federal
(FECA) Procedure Manual, Initial Development of Claims, Chapter 2.800.4(b)(1-2) (June 2011).
14

J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the March 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Asheville, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Roger W. Rutherford, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1771
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated January 30 and May 15, 2008 denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury causally related to factors of his federal employment.
FACTUAL HISTORY
On February 5, 2007 appellant, a 60-year old maintenance mechanic filed an
occupational disease claim alleging that he sustained injuries to his right foot in early December
2006. He stated that his right foot became swollen, as a result of remaining in the same position
for an extended period of time, during a three-day work-related road trip between Linville, NC

and Lexington, TN. Appellant also indicated that his foot condition might be related to a
previous accident in which he twisted his right ankle while operating a government backhoe. He
alleged that he first realized that the injury was related to his employment on December 6, 2006.
In a letter dated February 20, 2007, the Office informed appellant that the evidence
submitted was insufficient to establish his claim, noting that he had provided no medical report
or diagnosis of any condition resulting from the alleged December 6, 2006 incident. It advised
appellant to submit details surrounding the alleged incident, as well as a comprehensive medical
report from a treating physician, which contained symptoms, a diagnosis and an opinion with an
explanation as to the cause of his diagnosed condition.
In a March 15, 2007 statement, appellant indicated that he was required by his employer
to drive a pick-up truck from Linville, NC to Lexington, TN in early December 2006. He stated
that the swelling in his right foot began on the second day of his three-day trip and that, by the
time he returned to Linville, he was limping. Appellant noted that he twisted his right ankle a
few years before, when he stepped off a backhoe onto a rock.
Appellant submitted progress notes from Dr. George W. Stano, a podiatrist. Notes dated
September 8, 2005 reflected appellant’s complaints of pain in the right second and third toes of
the right foot, which he stated “hurts all the time.” On September 9, 2005 Dr. Stano diagnosed
periostitis 2nd met and onychomycosis. Notes dated February 2, 2007 reflected persistent
swelling in appellant’s right forefoot. Dr. Stano related appellant’s reports that he injured his
ankle approximately two years before when he jumped off of a backhoe and stepped on a rock.
He diagnosed possible PT tendinitis and chronic pain and swelling in the dorsum 2nd and 3rd
heads.
By decision dated March 29, 2007, the Office denied appellant’s claim on the grounds
that he had not established a causal relationship between the diagnosed condition and the claimed
work-related events.
On April 18, 2007 appellant requested an oral hearing. In support of his request, he
submitted a March 5, 2007 report from Dr. Stano, who diagnosed right Achilles tendinitis.
Dr. Stano stated that appellant jumped off a backhoe two years earlier, twisting his ankle when
his heel hit a rock. He further stated that appellant “drove to Memphis in December 2006,
irritated behind ankle after that, has since resolved.”
Appellant submitted April 19, 2007 statements from Jim Nowak, coworker, and
Supervisor Kevin Ziemba. Mr. Nowak stated that appellant twisted his right ankle as a result of
jumping from a tractor in August 2004. Mr. Ziemba indicated that appellant was sent to
Tennessee in December 2006 to pick up stolen government merchandise and that, when he
returned from the three-day trip; his right foot was severely swollen. Appellant informed him
that the right foot condition was due to an incident which occurred in August 2004, when he
twisted his ankle while jumping off a backhoe.
On April 20, 2007 appellant stated that he twisted his ankle when he jumped off a
backhoe and landed on a rock on August 16, 2004. He indicated that he did not file a claim at
that time because he assumed that it was just a minor sprain.

2

A hearing was held on December 6, 2007. Appellant testified that his right foot condition
was directly related to the three-day drive to Tennessee in December 2006.
By decision dated January 30, 2008, the Office hearing representative affirmed the
March 29, 2007 decision, on the grounds that appellant had failed to provide any rationalized
medical evidence explaining whether or how his right foot condition was causally related to the
claimed work events.1 On February 14, 2008 appellant requested reconsideration.
Appellant submitted a January 21, 2008 report from Dr. Christa U. Muckenhausen, a
treating physician, who provided a medical history, as reported by appellant, reflecting that he
had experienced right foot pain and swelling into his ankle since stepping off a backhoe in 2004.
She related appellant’s report that the symptoms usually occurred after extensive use, “such as
recently when he was driving to pick up a four-wheeler in Tennessee. Appellant had to drive
extensively with his foot flexed which caused him to have severe pain and swelling in the right
foot afterwards.” Dr. Muckenhausen diagnosed “status post injury to right foot when stepping
off a backhoe in 2004, with strain to ligaments and soft tissue in foot and ankle, with progressive
instability and advanced degenerative changes due to normal use of foot and ankle, which have
worsened over the years since the initial injury.” In response to a question as to whether
appellant’s condition arose out of his employment, she placed a checkmark in the “yes” box.
By decision dated May 15, 2008, the Office denied modification of its January 30, 2008
decision, on the grounds that appellant had not provided a rationalized medical opinion
establishing a causal relationship between his foot and ankle condition and the claimed
December 2006 driving activities.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that an injury was
sustained in the performance of duty as alleged3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
1

The record reflects that, on April 20, 2007, appellant filed a traumatic injury claim (File No. xxxxxx562)
alleging that he injured his right ankle on August 16, 2004 when he jumped from a backhoe. The Office denied the
claim by decision dated May 30, 2007. On January 30, 2008 an Office hearing representative affirmed the Office’s
May 30, 2007 decision.
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an employee
claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and manner alleged. Appellant must
also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997)

3

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.7
ANALYSIS
The medical evidence submitted by appellant is insufficient to establish that his right foot
and ankle condition was caused or aggravated by the alleged December 2006 employment
events. Therefore, he has failed to meet his burden of proof.
Dr. Stano’s September 8 and 9, 2005 progress notes reflect appellant’s complaints of pain
in the right second and third toes of the right foot, and provide diagnoses of periostitis 2nd met
and onychomycosis, These reports predate and are therefore not relevant to, the claimed
December 2006 driving incident. Additionally, by virtue of their date, they suggest that
appellant’s right foot condition preexisted the events of December 2006.
On February 2, 2007 Dr. Stano diagnosed possible PT tendinitis and chronic pain and
swelling in the dorsum 2nd and 3rd heads, noting that appellant had injured his ankle
approximately two years before when he jumped off of a backhoe and stepped on a rock. This
report lacks probative value on several counts. First, Dr. Stano’s diagnosis of possible PT
tendinitis is speculative. Further, the Board has consistently held that pain is a symptom, rather
than a compensable medical diagnosis.8 Moreover, Dr. Stano did not provide an opinion as to
the cause of appellant’s foot condition, or even address the alleged December 2006 driving
incident. Therefore, this report is of limited probative value.9
5
6

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).
Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas; supra note 4 at 218.

8

See Robert Broome, 55 ECAB 339, 342 (2004).

9

Michael E. Smith, 50 ECAB 313 (1999) (Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value).

4

On March 5, 2007 Dr. Stano diagnosed right Achilles tendinitis. He stated that appellant
jumped off a backhoe two years earlier, twisting his ankle when his heel hit a rock. Dr. Stano
noted that appellant “drove to Memphis in December 2006, irritated behind ankle after that, has
since resolved.” Although he implied that appellant exacerbated a previous ankle injury in 2006,
he did not explain the medical process through which his driving activities would have been
competent to cause the claimed condition. Medical conclusions unsupported by rationale are of
little probative value.10
In a January 21, 2008 report, Dr. Muckenhausen provided a medical history, as reported
by appellant, reflecting that he had experienced right foot pain and swelling into his ankle since
stepping off a backhoe in 2004. She related appellant’s report that the symptoms usually
occurred after extensive use, “such as recently when he was driving to pick up a four-wheeler in
Tennessee. Appellant had to drive extensively with his foot flexed which caused him to have
severe pain and swelling in the right foot afterwards.” Dr. Muckenhausen diagnosed “status post
injury to right foot when stepping off a backhoe in 2004, with strain to ligaments and soft tissue
in foot and ankle, with progressive instability and advanced degenerative changes due to normal
use of foot and ankle, which have worsened over the years since the initial injury.” In response
to a question as to whether appellant’s condition arose out of his employment, she placed a
checkmark in the “yes” box.
Dr. Muckenhausen report is insufficient to establish that appellant sustained a right foot
injury as a result of the alleged December 2006 employment events. Most significantly, she did
not explain the nature of the relationship between the diagnosed condition and the specific events
alleged to have occurred in December 2006.11 Dr. Muckenhausen indicated by placing a
checkmark in the “yes” box that she believed appellant’s condition was caused or aggravated by
employment activities. However, the Board has held that a mere check mark or affirmative
notation in response to a form question on causal relationship is not sufficient to establish a
claim.12 Moreover, although Dr. Muckenhausen related appellant’s belief that his condition was
caused by the 2004 backhoe injury and exacerbated by the drive to Tennessee, she did not opine
definitively that appellant’s condition was related to a three-day drive in December 2006. The
Board notes that Dr. Muckenhausen reference to a “recent” drive to Tennessee is inconsistent
with appellant’s factual allegations. For all of these reasons, her report is of diminished
probative value.
Appellant expressed his belief that his alleged right foot condition resulted from a threeday drive in December 2006, which required him to maintain his foot in the same position for an
extended period of time. However, the Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.13 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
10
11

Willa M. Frazier, 55 ECAB 379.
Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

12

See Gary J. Watling, 52 ECAB 278 (2001).

13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

5

factors or incidents, is sufficient to establish causal relationship.14 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, his belief that his condition was caused by the alleged work-related event is
not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how his claimed condition was caused
or aggravated by the alleged December 2006 employment event, he has not met his burden of
proof to establish that he sustained an occupational disease in the performance of duty causally
related to factors of employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 15 and January 30, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Id.

6