United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

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Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 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.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

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LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. In any case where a preexisting condition involving the same
part of the body is present and the issue of causal relationship, therefore, involves aggravation,
acceleration or precipitation, the physician must provide a rationalized medical opinion that
differentiates between the effects of the work-related injury or disease and the preexisting

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

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condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

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In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

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for authorization for physical therapy. 25 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 expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Rosemont, IL, Employer
__________________________________________

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

Docket No. 19-1010
Issued: October 1, 2020

Case Submitted on the Record

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

JURISDICTION

On April 8, 2019 appellant filed a timely appeal from a February 28, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted November 27, 2017 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 9, 2017 appellant, then a 39-year-old customs and border protection officer,
filed a traumatic injury claim (Form CA-1) alleging that on November 27, 2017 he felt his right
knee snap and experienced immediate pain after kneeling multiple times to collect empty shell
casings at a shooting range while in the performance of duty. He did not stop work.
In a December 11, 2017 report, Dr. James R. Bresch, Board-certified in orthopedics and
sports medicine, noted appellant’s account of the November 27, 2017 employment incident,
examined the right knee, and observed medial joint line tenderness with a positive McMurray’s
sign. He diagnosed a right medial meniscus tear and administered a cortisone injection.
A January 11, 2018 right knee magnetic resonance imaging (MRI) scan interpreted by
Dr. Ian Fisher, Board-certified in diagnostic radiology, demonstrated a bucket-handle tear of the
medial meniscus, possible full-thickness cartilage loss in the medial patellar facet, a mild anterior
cruciate ligament (ACL) tear, moderate effusion, a small Baker’s cyst, and a tiny intra-articular
loose body posterior to the lateral meniscus.
In a report dated January 15, 2018, Dr. Bresch diagnosed a bucket handle medial meniscus
tear in the right knee. He recommended a right knee arthroscopy with partial medial
meniscectomy.
In a development letter dated February 16, 2018, OWCP advised appellant that the
evidence of record was deficient. It requested that he respond to an attached development
questionnaire and provide medical evidence to establish a diagnosed condition as a result of the
alleged employment incident. OWCP afforded appellant 30 days to submit the necessary evidence.
In response, appellant submitted a completed questionnaire and asserted that he had no
right knee symptoms or conditions prior to the November 27, 2017 employment incident.
Appellant noted that he sought treatment at an emergency room on November 27, 2017, but could
not obtain a follow-up appointment until December 11, 2017.
Appellant also provided a December 11, 2017 patient intake questionnaire, which noted
that he was at the shooting range for work, picking up empty shells, when his right knee snapped
and became painful. The questionnaire further noted that, while he had previously undergone a
left knee meniscal repair, he had not previously seen a physician for treatment of his right knee.
By decision dated March 29, 2018, OWCP accepted that the November 27, 2017
employment incident occurred as alleged, but denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right knee condition was
causally related to the accepted incident.
On December 3, 2018 appellant requested reconsideration and submitted additional
medical evidence.
In an April 23, 2018 work status report, Dr. Bresch indicated that he performed a right knee
arthroscopy with partial medial meniscectomy on April 13, 2018. He held appellant off work
through May 7, 2018.
2

In a May 2, 2018 report, Dr. Bresch reviewed the history of injury and treatment. He noted
that imaging studies revealed well-maintained tricompartmental joint spaces without evidence of
collapse. Dr. Bresch opined that the diagnosed right meniscal tear was causally related to the
November 27, 2017 employment incident as appellant had no right knee symptoms prior to that
event.
By decision dated February 28, 2019, OWCP denied modification of the March 29, 2018
decision. It found that Dr. Bresch’s new medical reports failed to explain how appellant sustained
a right knee injury as a result of the accepted November 27, 2017 employment incident. OWCP
further found that Dr. Bresch had not explained how the degenerative findings demonstrated by
the MRI scan study provide the operative report or postoperative findings.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.6
There are two components involved in establishing fact of injury. First, the employee must
establish that he or she actually experienced the employment incident at the time, place, and in the
manner alleged.7 Second, the employee must establish that the employment incident caused a
personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
2

Supra note 1.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

8
B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).

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opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.10 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted November 27, 2017 employment incident.
Appellant submitted a series of reports by Dr. Bresch dated December 11, 2017 to
May 2, 2018. In his initial report, Dr. Bresch noted a November 27, 2017 date of injury and
diagnosed a right medial meniscal tear. In a January 15, 2018 report, he diagnosed a bucket handle
tear of the right medial meniscus and recommended surgical repair. In an April 23, 2018 report,
Dr. Bresch indicated performing a right knee arthroscopy on April 13, 2018, but did not provide
the surgical report. He opined in a May 2, 2018 report that the diagnosed right medial meniscal
tear was causally related to the accepted November 27, 2017 employment incident as appellant
had no prior right knee symptoms. However, the Board has held that the fact that a condition
manifests itself during a period of employment is insufficient to establish causal relationship.
Temporal relationship alone will not suffice.13
Although Dr. Bresch’s reports contain an affirmative opinion on causal relationship, the
Board finds that they do not contain sufficient medical rationale explaining how kneeling to pick
up empty shell casings at work caused or contributed to appellant’s right knee condition. The
Board has found that medical evidence that states a conclusion, but does not offer a rationalized
medical explanation regarding the cause of an employee’s condition is of limited probative value

9

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
11

James Mack, 43 ECAB 321 (1991).

12
F.C., Docket No. 19-0594 (issued August 13, 2019); R.C., Docket No. 18-1146 (issued August 12, 2019); J.F.,
Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3e (January 2013).
13
S.S., Docket No. 19-0675 (issued August 22, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019);
Daniel O. Vasquez, 57 ECAB 559 (2006).

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on the issue of causal relationship.14 Because Dr. Bresch did not provide a reasoned opinion
explaining how the November 27, 2017 employment incident caused or contributed to appellant’s
right knee condition, his reports are insufficient to establish appellant’s claim. The need for
rationalized medical opinion evidence is particularly important in this case since the MRI scan
demonstrated preexisting degenerative findings.15
Appellant also provided a January 11, 2018 right knee MRI scan demonstrating a buckethandle tear of the medial meniscus, a small Baker’s cyst, and possible full-thickness cartilage loss
in the medial patellar facet. The Board has held that diagnostic reports, standing alone lack
probative value on the issue of causal relationship as they do not offer an opinion regarding the
cause of an employee’s condition.16 For this reason, this evidence is in sufficient to meet
appellant’s burden of proof.
In order to obtain benefits under FECA an employee has the burden of proof to establish
the essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.17 As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right knee condition was causally related to the accepted November 27, 2017 employment incident.
The Board finds that he has not met his burden of proof to establish his traumatic injury claim.
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 a right knee
condition causally related to the accepted November 27, 2017 employment incident.

14

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

15

See J.F., supra note 12; Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3e.
16

See J.F., supra note 12.

17

F.C., supra note 12; R.C., supra note 12; J.M., supra note 5; R.C., supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Jacksonville, FL, Employer
__________________________________________

)
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)
)
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)
)
)

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

Docket No. 17-0115
Issued: June 1, 2018

Case Submitted on the Record

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

JURISDICTION
On October 25, 2016 appellant filed a timely appeal from a September 6, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional or
physical condition due to factors of her federal employment.
FACTUAL HISTORY
On May 1, 2015 appellant, then a 51-year-old claims examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed accelerated essential hypertension, anxiety,
1

5 U.S.C. § 8101 et seq.

headaches, and panic attacks due to factors of her federal employment. She attributed her
conditions to major computer problems, as well as telephone headset problems, while performing
both her job duties and those of her coworkers due to short-staffing.
In a development letter dated May 4, 2015, OWCP requested additional factual and
medical information from appellant. It afforded her 30 days to respond.
Appellant submitted an April 24, 2015 memorandum addressed to her supervisor. She
noted that, on March 18, 2015, she experienced headaches, dizziness, light-headedness, and panic
attacks while trying to meet a deadline. Appellant left work to seek medical treatment. She
informed her supervisor on March 19, 2015 that she was hospitalized due to high blood pressure,
stress, and anxiety. Appellant attributed her conditions to her employment. She noted, “All of the
computer problems/mouse problems/indexing mail problems/telephone headset problems,
specially assigned job duties (TSA project and POWER case reviews) and being assigned other
coworkers work caused me great stress and started to aggravate some of my physical conditions
which caused me pain and further aggravated my stress levels.”
On March 12, 2015 Dr. Jason Schmotzer, a clinical psychologist, noted that he examined
appellant on April 2, 2015 due to her severe anxiety with panic attacks and associated symptoms
of high blood pressure, dizziness, headaches, and cognitive decline. He opined that work stressors
caused and aggravated her conditions. In a report dated April 17, 2015, Dr. Schmotzer diagnosed
adjustment disorder with mixed anxiety and depressed mood and anxiety disorder. He attributed
appellant’s conditions to work stressors.
In an April 19, 2015 narrative statement, appellant’s supervisor asserted that appellant’s
computer, indexing, and telephone headset problems were addressed immediately. Appellant was
asked to call the help desk to report computer issues and was directed to leave her mail alone until
the problem was resolved as “timeliness of mail indexing is no longer a part of her standards but
a part of her duties.” Her supervisor noted that, while some actions were prompted by mail,
appellant could work off her other reports and conduct a case file review. She noted, “When
indexing mail, if the computer skipped a document or documents, it/they would remain unreviewed
and merely change order in the rotation and she was still able to perform her expected duties. This
did not create more work as [appellant] could index the documents once they reappeared in her
unreviewed mail.” The supervisor reported that appellant’s headset problems were resolved by
issuing her another headset. She denied any staffing shortages since 2013, or that appellant was
singled out or subjected to special projects, tasks, or deadlines. The supervisor noted that extra
tasks typically consist of reassigning work for coworkers using scheduled leave for periods from
two to five days. For coworkers on scheduled leave, all tasks were equally distributed among the
remaining team, which consists of nine claims examiners total on a rotational basis. She denied
that appellant was assigned any extra work projects and that Protecting Our Workers and Ensuring
Reemployment (POWER) cases and “TSA updates” were routine, normal duties. The supervisor
also denied that appellant was given more responsibilities than coworkers and asserted that
workload requirements and deadlines were universal for all claims examiners.
On April 27, 2015 appellant again alleged computer and mail indexing problems as well
as telephone headset problems. She also noted that computer issues caused her to repeat actions

2

two or three times which made it harder to keep up with her work. Appellant asserted that her job
became increasingly stressful until she was mentally unable to perform it.
In a May 14, 2015 narrative statement, appellant advised that her condition developed from
January through March 18, 2015 when she stopped work. She attributed her condition to
technological problems with her telephone and computer. Appellant was unable to index mail and
move around within individual documents in case files. This required extra work and took more
time for completion. Appellant was required to repeat actions three or four times increasing the
amount of time spent. She opined, “This made my review of cases more involved requiring me to
do double work and my tasks started to back up on me. This was very stressful to me.” In e-mails
dated January 29 and February 27, 2015, appellant sought technological aid from the help desk
due to computer and headset issues. On March 10 and 11, 2015 she informed her supervisor of
her technological issues. Appellant noted that she was stressed and that her mail was beyond five
days. She also noted that personal identifiable information (PII) was impossible to complete
accurately when her computer would not index properly. Appellant alleged that she was
overwhelmed by copy requests.
Appellant also indicated that her telephone headset was not functioning properly and that
she was required to use the handset resulting in increased pain in her left arm and neck from
repetitive use. She asserted that more than half of the telephone bank unit was out of the office
and that there were only three customer service representatives when there once were eight.
Appellant submitted a list of unit assignments which indicated that customer service had five
vacancies within nine positions. Vacancies in the telephone bank required her to fill-in and leave
her duties for three and a half hours. Appellant was assigned to work on the telephone bank
without a working headset on January 13, via a January 9, 2015 e-mail; January 29, 2015 via a
January 22, 2015 e-mail; and February 12, 2015. She was assigned to the telephone bank on
February 27, 2015, but spent time with the help desk. Appellant received a working headset on
March 3, 2015 according to an e-mail of that date. Until that point she used her handset. Appellant
noted that, as time went on, she received e-mails from her supervisor regarding the timeliness of
her work and on March 18, 2015 she developed headaches, dizziness, light-headedness, and panic
attacks while trying to meet a deadline.
Appellant alleged that her job was demanding and that she felt stress in completing her
daily assigned tasks, which was increased by computer and telephone technical difficulties. She
received specially assigned duties of TSA project and POWER case reviews and was required to
perform the work of coworkers who were on leave, which made it difficult to complete her own
assignments. Appellant submitted a January 22, 2015 e-mail from her supervisor regarding the
TSA case requesting a plan of action and an update by the end of the day. On January 29, 2015
her supervisor requested review of a case for high physical therapy costs to be completed by
February 2, 2015. Appellant submitted February 11 and 24, 2015 e-mails regarding requests for
updates of POWER reports in four cases, which were due by the close of business on
February 24, 2015. She noted that the employing establishment was short-staffed in January 2015
and that coworkers were utilizing leave. Appellant listed the coworkers duties’ she was assigned
from January 30 through March 9, 2015. She asserted that these additional activities were very
stressful given her difficulties with technology. On February 2, 2015 appellant received an
assignment that had to be completed on that date which required her to “drop everything else I was
doing in order to review” a case file. She found this stressful. Appellant received reminders of

3

specific cases which had to be completed on January 15 and 22, 2015 as well as February 2
and 24, 2015. She failed to complete a case by February 2, 2015 as required by her standards and
on February 4, 2015 her supervisor indicated that it must be completed by the close of business.
This deadline was stressful due to her computer problems.
Appellant also explained that technological problems kept her from timely reviewing case
records for copy requests which then had to be submitted to the fiscal office for duplication and
then submission to the claimants. As her technological difficulties resulted in her failure to timely
identify the copy requests in order to meet the deadlines, appellant, as the claims examiner, had to
review case records for PII and ensure that each case record page was properly associated with the
requesting claimant, rather than the fiscal officer performing this additional duty. Appellant
alleged that this additional job requirement, caused by her computer problems, resulted in
additional work and caused her stress. Furthermore, her computer difficulty added to the time and
attention required to complete the PII identification. Appellant indicated that she performed PII
review on January 21, February 5, 9, 11, and 27, and March 4 and 6, 2015.
Appellant alleged that there were general computer outages or slowing on January 28,
February 27, March 10 and 11, 2015. She alleged that these periods of forced reduced productivity
caused her stress as she was unable to work on the items that she knew she had to complete. To
complete all assigned tasks, appellant had to work more than eight hours a day for 27 days between
January 11 and March 17, 2015. She asserted that she had a “strict deadline” to complete a case
involving an investigative memorandum on February 4, 2015, but due to her technological
difficulties she had problems meeting this deadline. Appellant submitted an e-mail from her
supervisor.
In February 27 and March 11, 2015 e-mails, appellant reported difficulties indexing mail.
When she had multiple documents for indexing, every other document was skipped and the
programming did not allow her to return to the same case. This caused double and triple work.
Appellant’s computer required repetitive actions to complete an entry and she was repetitively
required to pick up a telephone receiver. This caused pain in her wrists, neck, shoulders, arms,
and hands.
Appellant responded to her supervisor’s statement on June 1, 2015. She noted that her
telephone headset issue was not resolved from January 29 through March 3, 2015, while the
computer and indexing mail problems were ongoing as of March 18, 2015 when she stopped work.
Appellant again explained the consequence of an untimely identification of a copy request and
noted how this impacted her workload. Due to her supervisor’s direction that she stop indexing
mail as a result of computer problems, she had a large number of untimely copy requests that were
very time consuming and stressful. Appellant also described other documents that she had to
physically view, including return to work forms, requests for change of physicians, and requests
to expand claims for additional medical conditions noting that these documents were not available
through other reports. The inability to accurately access these documents and process mail as
effectively as before her computer difficulties caused great stress. Appellant’s computer issues
made every task more difficult and time consuming including reviewing all her cases, indexing
mail, and copy requests. She never previously had this degree of technological difficulty,
including problems with her computer, mouse, and telephone headset from January 2015 through
March 18, 2015. Appellant also asserted that she had increased telephone duties because of the

4

staffing shortage in the telephone bank unit and that she had extra work due to her coworkers’
leave usage. She provided e-mails dated February 9, 2015 which showed that she was assigned
two tasks from a coworker. On March 2, 2015 appellant was assigned to index a coworker’s mail
on March 6, 2015 and her CA-110s on March 4, 2015. She also submitted her position description
and her performance standards.
In a May 19, 2015 letter, OWCP requested that the employing establishment respond to
appellant’s allegations.
The employing establishment responded on June 17, 2015 and asserted that there were no
staff shortages among the claims examiners and that appellant was not singled out to perform
coworker’s duties while they were on scheduled leave. Regarding whether there were aspects of
appellant’s job that could be perceived as stressful such as overtime, deadlines, quotas, or intense
assignments, appellant’s supervisor noted that appellant was not given more responsibilities than
her coworkers. She also asserted that there was a congenial work environment and that appellant
was not required to work overtime, credit time, travel, or work with quotas imposed. The
supervisor denied that appellant had intense assignments or that she was subjected to special
projects or tasks. She noted that deadlines were an inherent part of the job. The supervisor noted
that appellant received a less than satisfactory performance appraisal in 2014, and for the first
quarter review on February 13, 2015 appellant’s performance was at the needs to improve level
for three critical elements. Regarding appellant’s allegations about copy requests, the supervisor
noted that appellant did not request assistance or inform her that she incurred a problem. She noted
that, when indexing mail, if the computer skipped documents, these documents would remain
unreviewed and merely change order in the rotation. The supervisor opined, “I sat with [appellant]
at her desk while she indexed the mail and I observed that this did not create more work as
[appellant] could index the documents once they reappeared in her unreviewed mail.” She advised
that appellant’s indexing problems were not specifically computer related, but instead due to the
way appellant sorted columns which was unique and resulted in some unknown user error.
Appellant’s supervisor indicated that appellant was assigned an investigative memorandum
on January 21, 2015 rather than January 14, 2015 and it was due on February 5, 2015. She also
asserted that the TSA and POWER cases were already in appellant’s assigned block and were not
extra work projects. The supervisor indicated that appellant did not clear a case on February 2,
2015 as directed and that the case was already 70 days old. By the follow up e-mail on February 4,
2015, she advised appellant to take action on the case as it was 12 days over standard. Appellant
could have acted on the case anytime on or after January 12, 2015, but she allowed the case to go
over standard. The supervisor disagreed that appellant was required to work over eight hours a
day, alleging that appellant chose to do so. She asserted that appellant was not organized and did
not properly manage her time. In regard to appellant’s allegation that she worked more than eight
hours a day, her supervisor noted that appellant accumulated and used credit time or other leave
during some of the days she listed, and that she worked long hours to accumulate leave. In regard
to appellant’s duties in the telephone bank, her supervisor noted she had advance notice of her four
telephone bank shifts and that she had less phone bank duty than her coworkers. She discounted
appellant’s explanation of her telephone bank and headset issues, opining that appellant was not
responsible for her telephone bank duties.

5

Appellant responded to the employing establishment’s contentions on August 4, 2015. She
noted that she was not alleging error or abuse by the employing establishment in assigning work,
but instead that computer and telephone problems overwhelmed her and made doing her work
much more difficult. Appellant noted that she had informed her supervisor of her difficulties
completing copy requests on March 11, 2015.
In an October 27, 2015 decision, OWCP denied appellant’s claim, finding that she had not
established extra work assignments, increases in workload, excessive telephone headset trouble,
or computer index trouble. It noted that the employing establishment quickly resolved the issues
that appellant claimed. OWCP found that she had not established any compensable employment
factors.
On November 5, 2015 appellant requested an oral hearing with OWCP’s Branch of
Hearings and Review, and on June 13, 2016, she submitted a narrative statement, noting that she
was required to perform certain duties and that she provided proof that she performed these duties.
She reiterated that she had documented computer and telephone problems which caused her to
have more difficulties performing her everyday job duties. Appellant asserted that she was not
required to establish that she had higher stress levels than other employees. She noted her
difficulty in indexing and alleged that this made it very hard for her to meet the production
standards. Appellant disagreed that her computer issues were self-generated and noted that her
supervisor initially indicated that there were computer problems nationwide. She further noted
that she believed that the customer service section was short-handed resulting in the requirement
that she work more shifts in the telephone bank rather than her work unit which was understaffed.
Appellant disputed that she worked without apparent difficulty and noted that the March 11, 2015
e-mail requested help. She further asserted that her January 29, 2015 e-mail confirmed that a
coworker attempted to help her and had the same computer difficulties. Appellant noted that she
did not have computer issues prior to her holiday leave. She asserted that the problems occurred
after January 12, 2015 and that her work methods did not change. Appellant noted that she was
required to work on two TSA cases, that the employing establishment confirmed that she worked
on these cases, and that under Board precedent this regular duty caused her to experience stress
and anxiety in carrying out actions required to review these cases.
Appellant testified during the July 14, 2016 oral hearing. She noted that she had worked
as a claims examiner for 16 to 17 years. After appellant stopped work in March 2015, she returned
on May 23, 2015 and stopped again on July 23, 2015. Appellant testified that the computer and
telephone problems she experienced from January 12 to March 18, 2015 prevented her from
performing some of her job duties within the severe time constraints set forth in her standards.
Appellant submitted an additional statement on July 19, 2016. She noted that she was
assigned other coworkers’ tasks on six different occasions. Appellant had to perform PII reviews
on case copy requests that she missed due to her computer problems seven times. She also noted
that she was assigned to the telephone bank four times from January 12 to March 18, 2015.
Appellant alleged that normally she would have to perform this duty once in three months. She
documented computer issues seven times.

6

Appellant submitted an August 7, 2016 witness statement from V.P., a coworker. V.P.
witnessed appellant’s computer issues beginning in January 2015. She noted that she personally
had to review only one or two PII cases in the past several years.
By decision dated September 6, 2016, OWCP’s hearing representative affirmed OWCP’s
October 27, 2015 decision. He found that appellant had not substantiated compensable work
factors as causing or contributing to her physical or emotional conditions. The hearing
representative determined that appellant had not established that she was overworked or forced to
work outside of her regular hours.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained 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.3
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to the claimed condition; (2) medical evidence establishing that he or she has an
emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his or her emotional
condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA.6 There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from her emotional reaction to a
2

Id.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

4

See L.H., Docket No. 17-1295 (issued November 22, 2017); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

See Robert W. Johns, 51 ECAB 136 (1999).

7

special assignment or other requirement imposed by the employing establishment or by the nature
of the work.8 In contrast, a disabling condition resulting from an employee’s feelings of job
insecurity per se is not sufficient to constitute a personal injury sustained in the performance of
duty within the meaning of FECA. Thus disability is not covered when it results from an
employee’s fear of a reduction-in-force, nor is disability covered when it results from such factors
as an employee’s frustration in not being permitted to work in a particular environment or to hold
a particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.10 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.11 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.12
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
incidents and conditions at work. The Board finds that she had established compensable factors
of employment. The Board has held that emotional reactions to situations in which an employee
is trying to meet her regularly or specially assigned position requirements are compensable.13 The
Board finds that appellant has established compensable employment factors with regard to her
regular duties. Appellant alleged that she was required to meet deadlines as part of her regular
duties. The employing establishment agreed that deadlines were part of her job. Appellant
asserted that she found these deadlines, from January 2015 through March 2015, to be stressful.14
In K.H.,15 the Board found that the claimant was required to meet deadlines and was required to
complete duties in a timely manner. The Board further found that these job duties were
compensable factors of employment and that a supervisor’s efforts to aid an employee by
8

Supra note 4.

9

Id.

10

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

11
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
12

Roger Williams, 52 ECAB 468 (2001).

13

See Tina D. Francis, 56 ECAB 180 (2004). See also Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984);
Joseph A. Antal, 34 ECAB 608, 612 (1983).
14

K.H., Docket No. 09-1651 (issued June 3, 2010); C.W., Docket No. 08-2557 (issued August 11, 2009) Karen A.
Roulette, Docket No. 04-1007 (issued August 17, 2004) (finding that meeting deadlines when factually substantiated
was a compensable factor of employment).
15

Id.

8

extending deadlines and assisting with the workload did not take the employee out of coverage
under Cutler with regard to her regular and specially assigned duties.16 As in K.H., the Board finds
that appellant has established a compensable factor of employment under Cutler in regard to her
regularly assigned duty of meeting deadlines.
Appellant also attributed her emotional condition to the requirement that, during the period
January 2015 through March 2015, she was to review case records for PII prior to submitting the
cases for copying. Appellant’s supervisor acknowledged that this was one of appellant’s duties.
In C.S.,17 the claimant, a nurse, attributed her emotional condition to specific job duties including
supervising nurses, engaging in case management, reading reports, paying bills reviewing nursing
care plans, and training, as well as insuring certification of contract nurses. The Board found that
the claimant had alleged credible, specific aspects of her job duties that related to stress. The
Board noted that conditions related to stress from situations in which an employee is trying to meet
her position requirements are compensable.18 As in C.S., appellant has implicated specific job
duties which caused her stress, reviewing case records for PII, and the Board finds that she has
established a compensable factor of employment under Cutler.
Appellant alleged that she found working the telephone bank to be stressful. She further
attributed her emotional condition to performing her coworker’s work when they used scheduled
leave. Appellant’s supervisor did not dispute that appellant performed these tasks, but asserted
either that appellant did not indicate difficulties in completing these tasks or that appellant was not
treated differently in these assignments. In Beverly R. Jones,19 the claimant listed a series of
employment activities and tasks which caused her emotional stress including feeling rushed, that
she had no time to finish one thing before having to do three or four other things, that she had too
many tasks to do at once and that she had difficulty concentrating on anything. Appellant claimed
this was something she experienced every day. She claimed that handling business reply mail,
when another worker was absent, was very hard for her to do because she was not given as much
time to perform the work and she had to do other jobs as well. Appellant also claimed that it was
very difficult for her to work the window, that it made her very nervous and that she had to work
the window almost every day. The employing establishment indicated that the claimant in Jones
had no problems doing any of her assignments, and the Board noted in Jones that this can be taken
to mean only that she did her assignments to her supervisor’s apparent satisfaction. The Board
found that whether the claimant experienced stress or anxiety in trying to accomplish her regular
and specially assigned duties was a different matter. The Board has held that conditions related to
stress from situations in which an employee is trying to meet his or her position requirements are
compensable.20 The Board further noted in Jones that the evidence was insufficient to establish
that the claimant’s supervisor overworked her or pushed her too hard, but was sufficient to
establish that she experienced stress or anxiety in performing her regular and specially assigned
16

Id.

17

Docket No. 10-2266 (issued September 30, 2011).

18

Id.

19

55 ECAB 411 (2004).

20

Id.; L.D., Docket No. 15-1831 (issued September 21, 2016).

9

duties. Under Cutler, the claimant established that her claimed injury arose from a compensable
work factor.
In Karen A. Roulette,21 the claimant alleged difficulty in performing her regular job duties
as an OWCP claims examiner, including meeting deadlines, and performing back-up for a claims
examiner on leave. The Board found in that case that it did not matter that other employees could
effectively and successfully manage such tasks. When an employee experiences emotional stress
in carrying out her employment duties, or has fear and anxiety regarding her ability to carry out
her duties, and the medical evidence establishes that the disability resulted from her emotional
reaction to such situation, the disability is generally regarded as due to an injury arising out of and
in the course of employment. This is true when the employee’s disability resulted from her
emotional reaction to her regular or specially assigned work or requirement imposed by the
employing establishment or by the nature of her work.22 The Board finds that like in Roulette,
appellant has established that her regular or specially assigned duties of working the telephone
bank and performing her coworkers’ work when they used scheduled leave are compensable
factors of employment under Cutler.
Appellant’s supervisor disputed appellant’s allegations that she was required to work
overtime, that her computer and telephone problems were not resolved in a timely manner, and
that the employing establishment was short staffed. While the evidence in this case is insufficient
to establish that appellant was overworked, the evidence is sufficient to establish that she related
her stress or anxiety to performing her regular and specially assigned duties.23 Under Cutler,
appellant has established that her claimed injury arose from a compensable work factor.
As the Board has found that appellant established compensable employment factors,
namely the performance of her regular job duties of telephone bank, meeting deadlines, copy
requests requiring PII review, and completing coworkers’ work when they were on leave, OWCP
must base its decision on an analysis of the medical evidence. OWCP found there were no
compensable employment factors and did not analyze or develop the medical evidence. The case
is not in posture for decision and will be remanded to OWCP for this purpose.24 After such further
development as deemed necessary, OWCP should issue a de novo decision on this claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.

21

Karen A. Roulette, supra note 14.

22

Phillip L. Barnes, 55 ECAB 426 (2004); Id.

23
See Kathleen D. Walker, 42 ECAB 603, 608 (1991) (conditions of employment encountered in performing
regularly or specially assigned duties constitute employment factors under FECA); Lloyd C. Wiggs, 32 ECAB
1023 (1981) (FECA does not require the showing of the occurrence of some unusual condition or event in the
employment as a prerequisite for compensability).
24

See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

10

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with decision of the Board.
Issued: June 1, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Fernando Dominguez, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0810
Issued: October 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 1, 2017 appellant, through her representative, filed a timely appeal from a
January 27, 2017 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 the case.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of an overpayment of
compensation in the amount of $61,900.00; and (2) whether OWCP properly required repayment
1

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

5 U.S.C. § 8101 et seq.

of the overpayment by deducting $600.00 every 28 days from appellant’s continuing
compensation.
On appeal appellant’s representative asserts that her position would change for the worse
and create a hardship for her if she were required to repay the overpayment.
FACTUAL HISTORY
On November 11, 2002 appellant, then a 65-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that she injured her back on that date when she was hit by a
mail container. She stopped work that day and did not return.
OWCP initially accepted the claim for the condition of lumbar contusion, and later
expanded the claim to include lumbosacral sprain, thoracic and lumbar spondylosis with
myelopathy, degeneration of thoracic or thoracolumbar intervertebral disc, and major depression,
single episode, unspecified. Appellant received continuation of pay from November 12 to
December 26, 2002 and began receiving FECA compensation on December 27, 2002. She was
placed on the periodic compensation rolls in April 2003. On November 5, 2003 appellant
underwent a lumbar decompression and spinal fusion. In July 2006, she came under the care of
Dr. Les Benson, a family physician.
Annual EN1032 forms signed by appellant between July 20, 2003 and July 18, 2011 and
July 18, 2013 and September 9, 2016 indicated that she was receiving Social Security
Administration (SSA) benefits. On the EN1032 form she signed on August 3, 2012, she
indicated that she was receiving no additional benefits.
OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits
calculation form to the SSA on August 11, 2014. SSA returned the form on September 24, 2014,
noting that appellant had been receiving SSA retirement benefits since August 2002. It indicated
that, beginning in August 2002, appellant’s SSA rate with FERS was $1,162.90 and without
FERS it would have been $517.50. Each year the rates increased through December 2013.
In reports dated July 10, 2014 and July 31, 2015, Dr. Benson diagnosed contusion of
back, sprain of lumbosacral joint, chronic pain syndrome, degeneration of thoracic or
thoracolumbar intervertebral disc, major depression, single episode, unspecified, and thoracic or
lumbar spondylosis with myelopathy. He described appellant’s medical management and
advised that she was medically disabled from her previous employment.
At OWCP’s request, in October 2015, SSA furnished new rates for the period
August 2002 through December 2014.
By letter dated November 10, 2015, OWCP notified appellant that, based on information
provided by SSA regarding what amount of her SSA benefit was attributable to federal service,
her FECA benefits had been adjusted effective October 18, 2015.
On January 4, 2016 OWCP issued a preliminary finding of an overpayment of
compensation in the amount of $133,270.45. It explained that the overpayment occurred because
a portion of appellant’s SSA benefits, that she received from December 27, 2002 to October 17,
2

2015, was based on credits earned while working in the Federal Government and that this portion
of her SSA benefit was a prohibited dual benefit. OWCP found that she was not at fault and
provided an overpayment action request and an overpayment recovery questionnaire (OWCP-20
form). Appellant was informed of the actions she could take and was allotted 30 days to
respond.
Appellant timely requested a prerecoupment hearing with OWCP’s Branch of Hearings
and Review. She submitted an overpayment questionnaire which listed monthly income of
$3,433.92 and monthly expenses of $3,795.66, with assets totaling $29,477.60. Appellant
attached addenda noting additional income and expenses, and noted additional real estate
holdings of a second house and a mobile home. She maintained that she was entitled to both
SSA and FECA benefits, and submitted additional documentation including income tax returns,
bank statements, cancelled checks, and copies of invoices.
In a September 9, 2016 report, Dr. Benson reiterated his findings and conclusions.
Appellant, who was present, did not testify at the hearing, held on October 19, 2016. Her
representative, a union representative, indicated that there was no disagreement regarding the
period or amount of the overpayment and that the only issue at hand was waiver. He maintained
that appellant suffered from codependency and had made bad choices regarding her children and
grandchildren, noting that she had given them homes and real estate yet kept the property deeds
in her name, and that because her FECA compensation was reduced in November 2015, she
needed all her income to get by.
In correspondence submitted following the hearing, appellant’s representative asserted
that appellant was codependent with her children and grandchildren and, based on her financial
situation, denial of waiver would be against equity and good conscience. He also submitted an
additional overpayment questionnaire. This indicated that she had monthly income of $1,567.00
from SSA, $1,857.71 from FECA, and $982.36 from the sale of her home, for a total of
$4,407.06. Monthly, expenses totaled $4,168.63 and assets totaled $91,975.22.
By decision dated January 27, 2017, an OWCP hearing representative noted that there
was no dispute as to the occurrence of the overpayment or the calculated amount. He noted that
appellant presented no evidence or argument against the calculation of the overpayment and
found that she was without fault. The hearing representative further found that she was not
entitled to waiver, noting that the evidence did not support that recovery would be against good
conscience or defeat the purpose of FECA. He calculated appellant’s FECA income in a
monthly rather than a 28-day periodic basis, finding FECA income of $2,009.54 per month. The
hearing representative noted that her monthly income also included investment disbursements of
$366.77, reported on the first overpayment questionnaire. He added the $2,009.54, $366.77, and
$1,567.00 of monthly SSA benefits, and $982.35 from the sale of appellant’s home, for a total
monthly income of $4,925.66, which exceeded her claimed monthly expenses of $4,168.63 by
more than the allowable resource base of $50.00. The hearing representative further noted that
her assets of $91,975.22 exceeded the allowed individual resource base of $8,000.00. He
concluded that appellant was not entitled to waiver and, based on this evidence, set repayment at
$600.00 per 28-day period. The hearing representative, however, lowered her overpayment of
$133.270.45 to $61,900.00, based on her life expectancy.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”3 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.4
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections
10.434 to 10.437 of OWCP regulations.5
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her 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.6 An individual is
deemed to need substantially all or his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.7
OWCP procedures provide that the assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent.8 An individual’s liquid assets include, but are not limited to cash, the
value of stocks, bonds, saving accounts, mutual funds, and certificate of deposits. 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/supplies.9

3

5 U.S.C. § 8129.

4

20 C.F.R. § 10.438.

5

Id. at §§ 10.434-10.437.

6

Id. at § 10.436.

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
8

Id.

9

Id.

4

ANALYSIS -- ISSUE 1
At the October 19, 2016 hearing, appellant’s representative indicated that there was no
disagreement regarding the period or amount of the overpayment of compensation, and that the
only issue for determination was waiver. As the period and amount of overpayment as found by
OWCP is not contested on this appeal, the Board affirms the overpayment of $61,900.00. On
appeal he asserts that appellant’s position would change for the worse and create a hardship if
she were required to repay the overpayment. The Board will therefore address only the issues of
waiver and repayment.
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.10 The Board finds
that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment of
compensation.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses. OWCP procedures provide that an individual is
deemed to need substantially all of his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00, i.e., the amount of monthly funds available for debt repayment is the difference between
current income and adjusted living expenses plus $50.00.11 Appellant submitted two
overpayment questionnaires, one on February 3, 2016 and one on November 22, 2016.
Appellant did not testify at the October 19, 2016 hearing. Her representative maintained
that she suffered from codependency, causing her to make bad choices regarding her children
and grandchildren, noting that she had given them homes and real estate yet kept the deeds of the
property in her name. There is, however, no medical evidence of record to show that appellant
was codependent or was in any way incompetent such that she could not manage her affairs.12
Appellant’s representative also asserted that, because her FECA compensation was
reduced in November 2015, appellant needed all her income to get by. In the November 2016
overpayment questionnaire, appellant reported monthly income of $4,407.06 and monthly
expenses of $4,168.63, with assets totaling $91,975.22.
In his January 27, 2016 decision, OWCP’s hearing representative recalculated appellant’s
FECA 28-day income to reflect a monthly payment of $2,009.54. He further noted that her
monthly income also included investment disbursements of $366.77, reported on the first
overpayment questionnaire. The hearing representative added the $2,009.54 in FECA
compensation, $1,567.00 of monthly SSA benefits, $982.35 in income reported from the sale of
10

Supra note 5.

11

Supra note 9.

12

See generally S.S., Docket No. 08-0977 (issued June 23, 2010).

5

appellant’s home, with the $366.77 in investment income, for a total monthly income of
$4,925.66, which exceeded her claimed monthly expenses of $4,168.63 by $757.03, which is
more than the $50.00 allowance, as explained on OWCP procedures.13
As appellant’s reported income exceeded her reported ordinary expenses by more than
$50.00, she has not shown that she needs substantially all of her current income to meet her
current ordinary and necessary living expenses. Thus, appellant has not met the first prong of the
two-prong test of whether recovery of the overpayment would defeat the purpose of FECA.14 It
was therefore unnecessary for OWCP to consider the second prong of the test, i.e., whether her
assets exceeded the allowable resource base.15
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt or when any 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.16 Appellant generally contends on appeal that recovery of the overpayment would
create a financial hardship and thus be against equity and good conscience.17 Her monthly
income exceeds her monthly expenses. Moreover, appellant did not show that she made a
decision she otherwise would not have made in reliance on the overpaid amount and that this
decision resulted in a loss.18 She submitted no evidence to show that she gave up a valuable
right or changed her position for the worse in reliance on anticipated compensation payments.
Thus, appellant has not shown that if required to repay the overpayment, she would be in a worse
position after repayment than if she had never received the overpayment at all. OWCP properly
found that she was not entitled to waiver on the grounds that recovery would be against equity
and good conscience.19
As appellant failed to establish that recovery of the overpayment in compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.
13

Supra note 7.

14

Supra note 6.

15

The Board, however, notes that appellant’s reported assets of $91,972.22 also exceeded the allowed individual
resource base of $8,000.00. Supra note 7.
16

20 C.F.R. § 10.437.

17

OWCP procedures provide that ordinary and necessary living expenses include fixed expenses such as food,
clothing, furniture, household and personal hygiene supplies, rent, mortgage payments, utilities, maintenance, burial
plot or prepaid burial contract; accident, health, life and vehicle insurance; taxes; vehicle expenses and commuting
expenses not included under vehicle expenses; medical expenses, church and charitable contributions made on a
regular basis; and miscellaneous expenses not to exceed $50.00 per month. The procedures add that consumer debt
should not be calculated if the expenses are included in the fixed expenses. Supra note 7 at Chapter 6.200.6.a(3)
(June 2009).
18

20 C.F.R. § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003).

19

Supra note 7.

6

LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, 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 hardship.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP gave due regard to the relevant factors noted above in
setting a rate of recovery of $600.00 per compensation period. The record indicates that
appellant’s monthly income exceeds her reported monthly expenses by $757.03 per month.
OWCP therefore did not abuse its discretion in finding that she should repay the overpayment at
the rate of $600.00 per compensation period.21
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $61,900.00, and that OWCP properly denied waiver and
required recovery of the overpayment by deducting $600.00 every 28 days from her continuing
compensation payments.

20

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

21

N.S., Docket No. 14-2081 (issued February 12, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI
NETWORK DISTRIBUTION CENTER,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1110
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On May 7, 2018 appellant filed a timely appeal from a March 1, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated November 16, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2015 appellant, then a 58-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that he broke his right foot on July 28, 2015 when he hit his foot on a railing
while in the performance of duty. He underwent right open reduction and internal fixation of right
fourth and fifth metatarsals on August 5, 2015. On August 19, 2015 OWCP accepted his claim
for right foot fracture. Appellant returned to full duty on November 9, 2015.
On October 11, 2016 appellant filed a schedule award claim (Form CA-7). In a
development letter dated October 14, 2016, OWCP noted that his traumatic injury claim was
accepted for the conditions of fractures of the tarsal and metatarsal bones on the right. It requested
a detailed narrative medical report addressing whether and when appellant had reached maximum
medical improvement (MMI), the diagnosed conditions, a detailed description of any permanent
impairment of the scheduled member, and a rating based on the A.M.A., Guides. OWCP afforded
30 days for a response. No response was received.
By decision dated November 16, 2016, OWCP denied appellant’s claim for a schedule
award as he had not submitted any medical evidence establishing permanent impairment to a
scheduled member.
On December 4, 2017 appellant requested reconsideration of the November 16, 2016
decision. In support of his request for reconsideration, he provided a report dated June 30, 2017
from Dr. Martin Fritzhand, a Board-certified urologist. Dr. Fritzhand described appellant’s history
of injury on July 28, 2015 and the subsequent August 5, 2015 surgery for open reduction and
internal fixation of the right fourth and fifth metatarsals. Appellant reported continued pain and
discomfort with his right foot exacerbated with prolonged ambulation, standing, or weight-bearing.
On physical examination Dr. Fritzhand found tenderness on palpation over the right fourth and
fifth metatarsals and no movement of the right little toe. He reported that pinprick and light touch
were diminished over the lateral aspect of the right foot. Dr. Fritzhand found that appellant had
reached MMI “by August 2016.” He applied the A.M.A., Guides and found that appellant had a
class 1 impairment of the metatarsal with abnormal examination findings.2 After evaluating the
grade modifiers and applying the net adjustment formula, Dr. Fritzhand determined that appellant
had one percent permanent impairment of his right lower extremity warranting a schedule award.
By decision dated March 1, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of OWCP’s decision
for which review is sought.3 Timeliness is determined by the document receipt date (i.e., the

2

A.M.A., Guides 504, Table 16-2.

3

20 C.F.R. § 10.607(a).

2

“received date” in OWCP’s integrated Federal Employees’ Compensation System (iFECS)).4 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation, if the claimant’s application for review shows clear evidence of error on the part of
OWCP in its most recent merit decision.6
The Board has held, however, that a claimant may request a schedule award or increased
schedule award at any time based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.7
ANALYSIS
The Board finds that this case is not in posture for decision because OWCP erroneously
adjudicated appellant’s request for reconsideration under the clear evidence of error standard.
When appellant initially filed his claim for a schedule award he did not submit any medical
evidence in support of a schedule award. In a letter dated December 4, 2017, he provided new
evidence in the form of an impairment rating from his treating physician with regard to his schedule
award claim. In his June 30, 2017 report, Dr. Fritzhand provided an impairment rating based on
the sixth edition of the A.M.A., Guides and found that appellant had one percent impairment of
his right lower extremity due to his accepted fracture of his right foot.
In its March 1, 2018 decision, OWCP denied appellant’s request for reconsideration,
finding it was untimely filed and failed to demonstrate clear evidence of error. As previously
noted, the Board has held that a claimant may request a schedule award or increased schedule
award at any time based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.8
The Board has explained that, if appellant has requested reconsideration, and has submitted new
and relevant evidence with respect to a permanent impairment or an increased permanent
impairment, then a claimant will be entitled to a merit decision on the issue.9
The Board thus finds that OWCP improperly denied appellant’s request for reconsideration
under the clear evidence of error standard and failed to issue an appropriate decision regarding
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

5

R.D., Docket No. 18-0579 (issued September 14, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

R.D., supra note 5; D.S., Docket No. 17-0407 (issued May 24, 2017).

8

Id.

9

Id.; See Linda T. Brown, 51 ECAB 115 (1999).

3

appellant’s claim for a schedule award.10 On remand OWCP shall review and develop the medical
evidence and issue a de novo decision regarding appellant’s request for a schedule award.11
CONCLUSION
The Board finds the case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: December 28, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

10

D.S., supra note 9.

11

T.C., Docket No. 17-0800 (issued May 2, 2018).

4