United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 09-1631
Issued: February 22, 2010

Case Submitted on the Record

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

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from a March 17, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, denying his hearing request as
untimely. The Board also has jurisdiction over a September 29, 2008 merit decision that denied
his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
July 7, 2008; and (2) whether the Office properly denied his request for an oral hearing as
untimely pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On August 18, 2008 appellant, a 48-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) for a sprained left foot and ankle that he attributed to a July 7, 2008 incident
when he stepped on a rock.

Appellant submitted notes excusing him from work July 8 through 14, 2008. These notes
were signed by a physician’s assistant, Katrina Grabling, and Jude L. Fleming, a nurse
practitioner.
By decision dated September 29, 2008, the Office denied the claim. Although it accepted
that the identified employment incident occurred as alleged, it denied the claim because appellant
had not established that the accepted employment incident caused a medically diagnosed
condition.
Appellant disagreed and on December 24, 2008 requested an oral hearing.
By decision dated March 17, 2009, the Office denied appellant’s hearing request because
it was untimely.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

2

ANALYSIS -- ISSUE 1
The Office accepted that appellant stepped on a rock on July 7, 2008. Appellant’s burden
of proof is to establish that the identified employment incident caused a diagnosed condition. As
noted above, causal relationship is a medical issue that can only be proven by probative
rationalized medical opinion evidence. Appellant has not submitted such evidence and therefore
has not established his claim.
The medical evidence of record at the time of the Office’s September 29, 2008 merit
decision consisted of notes excusing appellant from work from a physician’s assistant and a
nurse practitioner. Because healthcare providers such as nurses, acupuncturists, physician’s
assistants and physical therapists are not considered physicians under the Act, their reports and
opinions do not constitute competent medical evidence.8
Appellant failed to meet his burden of proof to establish a prima facie claim for
compensation. Although he submitted a statement which identified the factors of employment
that he believed caused his condition, at the time of the Office’s merit decision he had failed to
submit any medical evidence in support of his claim. The Office informed appellant of the need
to submit a physician’s opinion which explained how the claimed condition was related to the
implicated employment factors. Appellant failed to submit any medical evidence in support of
his claim.9
The Board finds that appellant has not established that he sustained a injury in the
performance of duty on July 7, 2008.
LEGAL PRCEDENT -- ISSUE 2
Section 8124(b)(1) of the Act,10 concerning a claimant’s entitlement to a hearing before
an Office hearing representative, states: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection(a) of
this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.
Section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting
hearings. A claimant is entitled to a hearing as a matter of right only if the request is filed within
the requisite 30 days.11 The Board has held that the Office, in its broad discretionary authority in
the administration of the Act, has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing and that the Office must exercise this discretionary authority in
8

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
9

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

10

5 U.S.C. § 8124(b)(1).

11

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

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deciding whether to grant a hearing.12 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.13
ANALYSIS -- ISSUE 2
On September 29, 2008 the Office denied appellant’s claim. Appellant’s hearing request
was postmarked December 24, 2008, more than 30 days after the Office issued its initial decision
and therefore the Office correctly found that he was not entitled to a hearing as a matter of right.
The Office properly exercised its discretion and determined that appellant’s request for an
oral hearing could be equally well addressed by requesting reconsideration and submitting
additional evidence. The Board has held that the only limitation on the Office’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment or actions taken which are contrary to logic
and probable deduction from established facts.14 The Board finds that there is no evidence of
record that the Office abused its discretion in denying appellant’s request. Thus, the Board finds
that the Office’s denial of his request for an oral hearing was proper under the law and the facts
of this case.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on July 7, 2008. The Board also finds that the Office properly denied his
request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.

12

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

13

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

14

See André Thyratron, 54 ECAB 257 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the March 17, 2009 and September 29, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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EQUAL EMPLOYMENT OPPORTUNITY
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COMMISSION, SAN FRANCISCO REGIONAL )
OFFICE, San Francisco, CA, Employer
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__________________________________________ )
M.V., Appellant

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

Docket No. 08-1263
Issued: October 20, 2008

Case Submitted on the Record

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

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from a March 6, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying her reconsideration request.
There is no merit decision within one year of the filing of this appeal. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On August 25, 2005 appellant, then a 52-year-old investigator support assistant, file an
occupational disease (Form CA-2) claiming that she sustained major depression and chronic pain

syndrome due to supervisory harassment at work.1 Appellant first became aware of her
condition on February 29, 2000 and first related it to work factors on August 25, 2005. She
stopped work on August 1, 2000. Appellant returned to work for three hours on May 21, 2001,
again stopped work and did not return.
In an April 8, 2002 grievance form, appellant stated that she suffered emotional distress
due to alleged supervisory harassment on or before December 10, 2001. A supervisor responded
to these allegations in January and February 2002.2
In a July 21, 2006 letter, appellant asserted that in 1989 and from 1995 to 1997, treating
psychiatrists diagnosed depression, anxiety and insomnia due to alleged harassment in the
workplace.3 She asserted that, after a February 29, 2000 workplace incident, appellant felt
extremely mentally unstable, sought treatment and was prescribed Valium.
In a September 20, 2006 letter, the employing establishment contended that appellant did
not provide written notice of a February 29, 2000 injury or otherwise notify her supervisor within
30 days.
By decision dated January 19, 2007, the Office denied appellant’s claim on the grounds
that it was not timely filed under the three-year time limitation of section 8122 of the Act. It
found that she should have been aware of the possible relationship between work factors and the
claimed condition within three years of February 29, 2000. Appellant’s treating psychiatrists
diagnosed possible work-related conditions as early as 1989. She also described a “nervous
breakdown” in February 2000 due to alleged harassment at work.
In a letter dated January 17, 2008,4 appellant requested reconsideration based on the
weight of the medical evidence. In an addendum, she authorized her attorney to act as her
representative. Appellant did not submit additional evidence.
By decision dated March 6, 2008, the Office denied appellant’s request for
reconsideration on the grounds that her January 17, 2008 letter and attorney authorization, the
only evidence submitted, did not contain relevant evidence sufficient to warrant a merit review
of the prior decision.

1

The claim now before the Board was assigned File No. 13-2156425. Appellant filed a previous emotional
condition claim under File No. 13-2015663. She submitted evidence under File No. 13-2156425 pertaining to the
prior claim.
2

Appellant submitted additional grievance documents.

3

Appellant did not submit reports from these physicians. She provided reports from June 2001 to April 2002
from two licensed clinical psychologists noting her account of harassment and discrimination at work. Dr. Angelica
Silverman, an attending Board-certified psychiatrist, treated appellant for anxiety from February 22, 2000 to
May 5, 2003.
4

The postmark is not of record.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.6 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.9 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Office denied appellant’s emotional condition claim on January 19, 2007. Appellant
requested reconsideration by letter dated January 17, 2008, based on unspecified medical
evidence previously submitted. She also authorized her attorney to represent her.
The underlying issue at the time of the last merit decision was the timeliness of
appellant’s emotional condition claim. To be relevant, the evidence submitted in support of the
January 17, 2008 request for reconsideration must address that issue. The only evidence she
submitted in support of her reconsideration request was her January 17, 2008 request for
reconsideration and an attorney authorization letter. These documents are not relevant evidence
regarding the timeliness of appellant’s emotional condition claim. Therefore, material is not
relevant and pertinent and are insufficient to require the Office to reopen her claim for
consideration of the merits.11

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.608(b). See also T.E., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

8

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

10

Annette Louise, 54 ECAB 783 (2003).

11

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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Appellant has not established that the Office improperly refused to reopen her claim for a
review of the merits under section 8128(a) of the Act. She did not show that it erroneously
applied or interpreted a specific point of law, advance a relevant legal argument not previously
considered by the Office or constitute relevant and pertinent new evidence.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 6, 2008 is affirmed.
Issued: October 20, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CHICAGO FIELD OFFICES, Chicago, IL,
Employer
__________________________________________

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

Docket No. 13-256
Issued: August 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 6, 2012 appellant filed a timely appeal from the May 11, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and the October 26, 2012
nonmerit decision of 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 these decisions.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an allergic or pulmonary condition in the performance of duty; and (2) whether OWCP
properly denied appellant’s request for further review of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
1
2

5 U.S.C. §§ 8101-8193.

Appellant timely requested an oral argument before the Board. In a March 8, 2013 order, the Board exercised
its discretion to deny appellant’s request for oral argument noting that appellant’s contentions on appeal could
adequately be addressed in a decision based on the case record as submitted.

FACTUAL HISTORY
On January 5, 2011 appellant, then a 56-year-old retired manager, filed an occupational
disease claim alleging that she sustained work-related conditions including aggravation of
allergies, rosacea and constant coughing. Regarding the relationship of the claimed conditions to
her employment, she stated, “I worked long hours in an office building with black mold visible at
the seams of several pieces of wallpaper. One seam was within 15 feet of my desk.” Appellant
indicated that she first became aware of her claimed condition in May 2010 and that she first
realized that it was caused or aggravated by her employment in July 2010. She stopped work on
November 3, 2010 and retired effective that day.
In an accompanying statement, appellant stated that in approximately June 2009 she
noticed a loosened wallpaper seam which looked black underneath. She indicated that an air
quality engineer tested the air, but the findings of the test showed that there were no problems.
Appellant stated that she asked the field services office to pursue the matter further and noted
that another test performed by a contractor for the Public Health Service indicated that there was,
in fact, black mold. The test showed that the mold was inside the southern and western walls of
the building and that it occurred due to electrical receptacles being removed from the building.
Appellant noted that, after the landlord failed to act, she placed clear duct tape on every seam
possible. After the tape was applied, the mold became increasingly more visible at many
different sites, including in a seam that was close to where she sat every day. Appellant
indicated that in May 2010 she started having a dry, hacking cough. She described other
conditions which she also believed were caused by the black mold at work, including rosacea on
her face and increased allergic reactions.
In a February 4, 2011 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim.
Appellant submitted an April 18, 2011 statement in which she continued to argue that she
sustained allergic and pulmonary conditions due to exposure to mold at work.
In a March 29, 2011 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient factual and medical evidence to establish that she sustained an allergic
or pulmonary condition in the performance of duty.
Appellant requested reconsideration of her claim and submitted a number of medical
reports which she believed supported her claim for work-related allergic and pulmonary
conditions. These reports, dated beginning in 2004, included lung capacity tests and allergic
reaction tests which showed that she reacted to such allergens as trees, grass, feathers, dust mites
and mold. In a March 15, 2011 report, Dr. Everett Gevedon, III, an attending Board-certified
allergist, noted that allergy testing was accomplished without complications and revealed mildto-moderate reactivity to mold and dust mites. There was also somewhat increased reactivity to
grass, tree, ragweed and field weed pollen. Dr. Gevedon noted that appellant’s test did show
mold sensitivity, but not at a level that exceeded what was typically found in the allergic
population. He stated, “Since she has developed symptoms from this, it would imply that she
had a significant exposure at some point.” Dr. Gevedon diagnosed several conditions including

2

allergic rhinitis, bronchial asthma, chronic serous otitis, deviated nasal septum and history of
significant mold exposure.
Appellant also submitted the findings of a November 2010 evaluation of her workplace
conducted in association with the General Services Administration. The report of the evaluation
showed that there was visible mold in various parts along the perimeter wall, especially at the
seams of the wallpaper. It was noted, however, that the sample results of indoor airborne mold
appeared in an array of mold spores similar to those in the outdoor air. The report noted, “The
total concentration of airborne mold spores was lower in the indoor air when compared to the
results for the sample collected outdoors. These results, independent of visual observations, are
not suggestive of an indoor mold growth condition.”
In a July 18, 2011 decision, OWCP denied appellant’s claim as modified to reflect that
the factual aspect of the claim was clarified to establish that appellant was exposed to some level
of mold in the workplace per the November 2010 evaluation. It was noted that this mold
exposure was less than would have occurred outside the workplace. However, OWCP found that
the medical evidence of record, including the opinion of Dr. Gevedon, did not show that
appellant sustained a condition due to the accepted work factors.
Appellant submitted a number of diagnostic reports indicating that she was allergic to
various substances including mold. In a January 31, 2012 report, Dr. Jonathan A. Bernstein, an
attending Board-certified allergist, stated that appellant reported that there was visible mold in
her workplace due to poor air circulation and humidity control. He noted that appellant started
developing chronic upper respiratory infections in 2004 but did not initially relate to workplace
conditions. However, appellant did report improved symptoms when away from the workplace.
Dr. Bernstein stated:
“Our evaluation indicates that she has nonallergic rhinitis and cough-variant
asthma confirmed by methacholine challenge test. She has responded to
avoidance measures and medication. It is my opinion based on her history and
temporal relationship to exposures in the workplace and exclusion of other
underlying conditions that her current condition was caused by chronic exposure
to poor indoor air quality in the workplace. With continued avoidance and
medications her prognosis is good.”
In a May 11, 2012 decision, OWCP affirmed its July 18, 2011 decision denying
appellant’s claim for a work-related allergic or pulmonary condition. It indicated that the
submitted medical evidence did not contain a rationalized medical opinion relating the claimed
conditions to the accepted work factors.
In an October 10, 2012 letter, appellant requested reconsideration of her claim. She
submitted the results of diagnostic testing conducted on October 31, 2011. In a September 27,
2012 letter, appellant’s sister expressed her belief that appellant’s health problems were due to
exposure to black mold at work.
In an October 26, 2012 decision, OWCP denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was 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 and specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5
ANALYSIS -- ISSUE 1
Appellant filed a claim alleging that she sustained allergic and pulmonary conditions due
to exposure to mold in the workplace. OWCP accepted that she was exposed to some level

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(ee), (q); Brady L. Fowler, 44 ECAB
343, 351 (1992).
5

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

4

of mold in the workplace,6 but found that she did not submit sufficient medical evidence to
establish that she sustained the claimed conditions due to the accepted work factors.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained an allergic or pulmonary condition due to the accepted work factors.
Appellant submitted reports, dated beginning in 2004, which included lung capacity tests
and allergic reaction tests which showed that she reacted to such allergens as trees, grass,
feathers, dust mites and mold. However, these reports did not contain any opinion that she
sustained any specific condition due to her work environment. In a March 15, 2011 report,
Dr. Gevedon, an attending Board-certified allergist, noted that allergy testing was accomplished
without complications and revealed mild-to-moderate reactivity to mold and dust mites. He
noted that appellant’s test did show mold sensitivity, but not at a level that exceeded what was
typically found in the allergic population. Dr. Gevedon stated, “Since she has developed
symptoms from this, it would imply that she had a significant exposure at some point.” He
diagnosed several conditions including allergic rhinitis, bronchial asthma, chronic serous otitis,
deviated nasal septum and history of significant mold exposure. Although Dr. Gevedon showed
that appellant had some sensitivity to mold, he did not provide a specific opinion that appellant
sustained a condition due to exposure to mold or other allergens at work. Therefore, his report
does not establish appellant’s claim.
In a January 31, 2012 report, Dr. Bernstein, an attending Board-certified allergist, stated
that appellant reported that there was visible mold in her workplace due to poor air circulation
and humidity control. He noted that his evaluation indicated that appellant had nonallergic
rhinitis and cough-variant asthma confirmed by methacholine challenge test. Dr. Bernstein
stated, “It is my opinion based on her history and temporal relationship to exposures in the
workplace and exclusion of other underlying conditions that her current condition was caused by
chronic exposure to poor indoor air quality in the workplace. With continued avoidance and
medications her prognosis is good.”
While Dr. Bernstein did provide an opinion on causal relationship, it is not a wellrationalized opinion. He appears to rely entirely on appellant’s nonspecific statements regarding
the level of mold in the workplace. Dr. Bernstein does not provide a detailed discussion of the
accepted facts in the present case regarding mold in the workplace. Therefore, his opinion on
causal relationship is not based on a complete and accurate factual basis and he did not
adequately explain how the observed condition could be related to the accepted work factors in
this claim. Dr. Bernstein did not provide a detailed explanation of how specific physical findings
and results of diagnostic testing supported his opinion on causal relationship. The Board has held
that the fact that a condition manifests itself or worsens during a period of employment7 or that
6

The findings of a November 2010 evaluation of appellant’s workplace showed that there was visible mold in
various parts along the perimeter wall especially at the seams of the wallpaper. It was noted, however, that the
sample results of indoor airborne mold appeared in an array of mold spores similar to those in the outdoor air. The
report noted, “The total concentration of airborne mold spores was lower in the indoor air when compared to the
results for the sample collected outdoors. These results, independent of visual observations, are not suggestive of an
indoor mold growth condition.”
7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

work activities produce symptoms revelatory of an underlying condition8 does not raise an
inference of causal relationship between a claimed condition and employment factors. Therefore,
Dr. Bernstein’s opinion does not establish appellant’s claim for a work-related allergic or
pulmonary condition.9
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 10.607.10
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by it; or (3) constitute relevant and pertinent
new evidence not previously considered by OWCP.11 To be entitled to a merit review of an
OWCP decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.12 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.13 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record14 and the submission
of evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.15 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.16
ANALYSIS -- ISSUE 2
OWCP issued a decision on May 11, 2012. Appellant requested reconsideration of this
decision on October 10, 2012.
8

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

9

On appeal, appellant argued that the medical evidence established her claim, but she did not identify medical
evidence which contained a rationalized opinion on causal relationship.
10

Appellant submitted additional evidence after OWCP’s October 26, 2012 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

15

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

16

John F. Critz, 44 ECAB 788, 794 (1993).

6

The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In her application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. She did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument. She argued that the evidence of record showed that she had a work-related
allergic condition. The underlying issue in this case was whether the medical evidence shows
that appellant sustained an allergic condition due to work factors. That is a medical issue which
must be addressed by relevant medical evidence.17
A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit any new and relevant medical evidence in this case. Appellant
submitted the results of diagnostic testing conducted on October 31, 2011. This evidence is not
relevant to the main issue of the present case because it does not contain a physician’s opinion
that the observed conditions were related to accepted work factors. In a September 27, 2012
letter, appellant’s sister expressed her belief that appellant’s health problems were due to
exposure to black mold at work. However, such evidence would not be relevant to appellant’s
claim because it does not constitute probative medical evidence on the cause of her claimed
condition.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an allergic or pulmonary condition in the performance of duty. The Board further finds
that OWCP properly denied appellant’s request for further review of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

17

See Bobbie F. Cowart, 55 ECAB 746 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the October 26 and May 11, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF JUSTICE, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
Falls Church, VA, Employer
__________________________________________

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

Docket No. 14-1610
Issued: November 25, 2014

Case Submitted on the Record

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

JURISDICTION
On July 14, 2014 appellant filed a timely appeal from a June 24, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment of the left upper
extremity.
FACTUAL HISTORY
On September 30, 2011 appellant, then a 56-year-old legal assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed a cyst on her left wrist as a result of her
1

5 U.S.C. § 8101 et seq.

federal employment duties. On January 3, 2012 OWCP accepted the claim for aggravation of
left wrist ganglion cyst. On November 13, 2013 appellant underwent a left wrist cyst excision
which was approved by OWCP.
In a February 28, 2014 treatment note, Dr. Erika Gantt, a Board-certified orthopedic
surgeon, reported that appellant was doing well following her left wrist cyst excision despite
complaints of tightness and scar discomfort. According to the North Carolina Industrial Rating
Guide, she opined that appellant had two percent permanent partial impairment to the left wrist
as a result of the work-related surgery.
By letter dated April 21, 2014, counsel for appellant argued that Dr. Gantt’s
February 28, 2014 report provided an impairment rating which established her claim for a
schedule award. On May 9, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated May 19, 2014, OWCP requested that appellant submit an impairment
evaluation from her attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). It provided
her 30 days to submit the requested impairment evaluation. No additional evidence was
received.
By decision dated June 24, 2014, OWCP denied appellant’s claim for a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.2 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.3
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.4 OWCP
procedures provide that to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the

2

Id. at § 8107; 20 C.F.R. § 10.404.

3

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
4

Tammy L. Meehan, 53 ECAB 229 (2001).

2

impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.5
ANALYSIS
OWCP accepted appellant’s claim for left wrist ganglion and cyst of synovium, tendon
and bursae. On May 9, 2014 appellant filed a claim for a schedule award. By decision dated
June 24, 2014, OWCP denied her schedule award claim finding that she did not submit an
impairment evaluation to establish a permanent impairment resulting from her work injury.
The Board finds appellant has not submitted sufficient medical evidence to establish any
permanent impairment to her left upper extremity due to her accepted condition.6 In support of
her claim, appellant submitted a February 28, 2014 report from Dr. Gantt, who opined that
appellant had a two percent permanent impairment of the left upper extremity based on the North
Carolina Industrial Rating Guide.
The Board notes that OWCP procedures provide that maximum medical improvement
(MMI) must be reached before a schedule award can be made.7 In this case, Dr. Gantt did not
address whether appellant had reached MMI as a result of her accepted left wrist dorsal ganglion
cyst following the November 13, 2013 surgery. Moreover, he failed to provide an impairment
rating based on the sixth edition of the A.M.A., Guides.8 Dr. Gantt failed to provide findings
from physical examination which could establish a ratable permanent impairment in accordance
with the sixth edition of the A.M.A., Guides.9
By letter dated May 19, 2014, OWCP informed appellant of the evidence necessary to
establish her schedule award claim. It specifically requested that she submit an impairment
evaluation from her attending physician in accordance with the sixth edition of the A.M.A.,
Guides. Appellant did not respond.
It is appellant’s burden of proof to establish a permanent impairment of a scheduled
member as a result of an employment injury.10 The medical evidence must include a description
of any physical impairment in sufficient detail so that the claims examiner and others reviewing
the file would be able to clearly visualize the impairment with its resulting restrictions and

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(b) (February 2013).
6

T.V., Docket No. 13-533 (issued June 19, 2013).

7

FECA (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010).

8

Id.

9

V.L., Docket No. 11-2048 (issued June 11, 2012).

10

See supra note 4.

3

limitations.11 Appellant did not submit such evidence. The Board finds that OWCP properly
denied her schedule award claim.12
On appeal, appellant argues that OWCP’s June 24, 2014 schedule award decision was in
error and resubmitted Dr. Gantt’s February 28, 2014 medical report.13 As noted, this evidence is
insufficient to establish her permanent impairment. There is no probative medical evidence of
record, in conformance with the sixth edition of the A.M.A., Guides, establishing that appellant
sustained any permanent impairment of the left arm as a result of her employment injury.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award.

11

See A.L., Docket No. 08-1730 (issued March 16, 2009).

12

L.F., Docket No. 10-343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010).

13

The Board notes that on February 4, 2014 appellant retained and authorized James M. Snow as counsel to
represent her with respect to her OWCP claim. Appellant’s appeal before the Board pertains to OWCP’s
June 24, 2014 decision only as she has not appealed or provided argument in support of the other OWCP decisions
issued in her claim.
14

M.B., Docket No. 12-361 (issued September 10, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 24, 2014 is affirmed.
Issued: November 25, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Redding, CA,
Employer
__________________________________________

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

Docket No. 19-1011
Issued: October 29, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 2, 2019 appellant filed a timely appeal from an October 5, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees ’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 5, 2018, the date of OWCP’s last decision, was
April 3, 2019. Because using April 8, 2019, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is April 2, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the October 5, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 10
percent permanent impairment of the right upper extremity and greater than 3 percent permanent
impairment of the left upper extremity, for which she previously received schedule award
compensation.
FACTUAL HISTORY
On November 16, 2015 appellant, then a 37-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed injuries to both shoulders as
a result of her routine, everyday employment duties. She first became aware of her condition on
September 3, 2015 and realized it resulted from factors of her federal employment on
November 12, 2015. Appellant did not stop work. OWCP accepted her claim for bilateral rotator
cuff strains and bilateral rotator cuff bursitis/tendinitis.
On January 4, 2017 appellant underwent OWCP-approved right shoulder arthroscopic
surgery and stopped work. OWCP paid wage-loss compensation on the supplemental rolls,
effective January 4, 2017. On December 4, 2017 appellant returned to full-time, modified-duty
employment.
On January 16, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated January 18, 2018, OWCP advised appellant that no medical
evidence was submitted to establish her schedule award claim. It requested that she provide a
medical report from her attending physician, which included a statement that the accepted
condition had reached maximum medical improvement (MMI) and an impairment rating utilizing
the appropriate portions of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 OWCP afforded appellant 30 days to
submit the necessary evidence.
Appellant submitted a series of reports dated October 5, 2017 to January 3, 2018 by
Dr. Richard P. Musselman, a family practitioner.
Dr. Musselman recounted appellant’s
complaints of bilateral shoulder pain and described her employment duties as a mail processing
clerk. He provided examination findings and diagnosed right rotator cuff tear, bilateral shoulder
rotator cuff strain, rotator cuff disorder, and bilateral shoulder pain.
OWCP referred appellant, along with a statement of accepted facts (SOAF) and a copy of
the record, to Dr. Charles F. Xeller, a Board-certified orthopedic surgeon, serving as a secondopinion examiner, to provide an assessment of appellant’s work-related bilateral shoulder
conditions and any resulting permanent impairment.
In a May 14, 2018 report, Dr. Xeller indicated that he had reviewed the SOAF and noted
appellant’s accepted conditions for bilateral shoulder rotator cuff strains and bilateral shoulder
bursitis. He recounted appellant’s complaints of pain with fast movements in the right shoulder
and with overhead movement in both shoulders. Upon examination of both shoulders, Dr. Xeller
4

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

2

observed slight impingement on the right and left and some pain with supraspinatus resistant
motion, bilaterally. He evaluated appellant’s shoulder range of motion (ROM) and noted three
measurements for each motion. Dr. Xeller diagnosed status post right shoulder surgery and slight
impingement on the left, but normal range of motion.
Referring to Table 15-5, Shoulder Regional Grid, A.M.A., Guides, Dr. Xeller assigned
class 1, default three percent, for diagnosis-based impairment (DBI) for left tendinitis, residual
loss of function. He assigned a grade modifier of 1 for history (GMFH) due to pain overhead and
a grade modifier of 1 for physical examination (GMPE) due to positive impingement signs.
Dr. Xeller reported that there was no grade modifier for clinical studies as imaging was not
available. He applied the net adjustment formula, which resulted in no change, for a total of three
percent left upper extremity impairment. Dr. Xeller pointed out that appellant had normal ROM
testing on the left. For appellant’s right shoulder, he reported that appellant was also class 1,
default three percent for right tendinitis, residual loss. Dr. Xeller indicated that the grades on the
right were the same as the left and calculated that appellant had three percent right upper extremity
permanent impairment under the DBI method. He explained that, in the alternative, right upper
extremity impairment could also be rated under the ROM method and calculated that appellant
had nine percent right upper extremity permanent impairment under the ROM method. Dr. Xeller
reported a date of MMI of May 11, 2018.
In a May 23, 2018 addendum report, Dr. Xeller indicated that according to Table 15-34,
Shoulder Range of Motion, for appellant’s right shoulder, she had three percent impairment for
150 degrees flexion, 0 percent impairment for 50 degrees extension, 3 percent impairment for 142
degrees abduction, 0 percent impairment for 50 degrees adduction, 4 percent impairment for 42
degrees internal rotation, and 0 percent impairment for 64 degrees external rotation for a total of
10 percent right upper extremity impairment under the ROM method. He assigned a GMFH of 1,
which resulted in no net modifier and a final impairment rating of 10 percent right upper extremity
permanent impairment.
In an August 27, 2018 report, Dr. Herbert White, an OWCP district medical adviser
(DMA) and Board-certified in occupational and preventive medicine, reviewed appellant’s history,
including the SOAF and medical record, and noted that her claim was accepted for bilateral
shoulder rotator cuff strain and bilateral shoulder bursitis. Utilizing the DBI method, he referenced
Table 15-5, Shoulder Regional Grid, and assigned class 1, tier 2 for right tendinitis. Dr. White
assigned GMFH of 1 due to pain/symptoms with strenuous activity, GMPE of 1 for mild motion
deficits, and no grade modifier for clinical studies. After applying the net adjustment formula,
which yielded no change, he determined that appellant had three percent right upper extremity
impairment. Dr. White indicated for appellant’s right shoulder that under the ROM methodology
and Table 15-34, Shoulder Range of Motion, appellant had 3 percent impairment for flexion, 0
percent impairment for extension, 3 percent impairment for abduction, 0 percent impairment for
adduction, 4 percent impairment for internal rotation, and 0 percent impairment for external
rotation for a total of 10 percent right upper extremity impairment. He explained that, pursuant to
the A.M.A., Guides, because the ROM method resulted in the greater impairment, appellant had
10 percent permanent impairment of the right upper extremity.
For appellant’s left shoulder, Dr. White referenced Table 15-5 and assigned class 1, tier 2
for left tendinitis under the DBI method. He assigned GMFH of 1 due to pain/symptoms with
strenuous activity, GMPE of 1 for mild tenderness, and no grade modifiers for clinical studies.
3

After applying the net adjustment formula, which resulted in no change, Dr. White determined that
appellant had default value of three percent left upper extremity impairment. Under the ROM
methodology, he indicated that appellant had zero percent impairment for normal range of motion
according to Table 15-34, Shoulder Range of Motion. Thus, Dr. White concluded that appellant
had three percent permanent impairment of the left upper extremity. He assigned an MMI date of
December 6, 2017, the date that Dr. Musselman indicated that appellant reached MMI.
By decision dated October 5, 2018, OWCP granted appellant schedule award
compensation for 10 percent permanent impairment of the right upper extremity and 3 percent
permanent impairment of the left upper extremity. The award ran for 40.56 weeks from May 11,
2018 to February 18, 2019.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards. 8
In addressing impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated.9 After a class of diagnosis (CDX) is determined (including identification of a default
grade value), the impairment class is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS). 10 The net adjustment
formula is (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

T.T., Docket No. 18-1622 (issued May 14, 2019).

10

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

11

Id. at 411.

4

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified. 12
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No 17-06 provides: “As the [A.M.A.,] Guides
caution that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has an
organic basis, three independent measurements should be obtained and the greatest ROM should
be used for the determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
Upon initial review of a referral for upper extremity impairment evaluation, the DMA
should identify: “(1) the methodology used by the rating physician (i.e., DBI or ROM); and
(2) whether the applicable tables in Chapter 15 of the [A.M.A.,] Guides identify a diagnosis that
can alternatively be rated by ROM. If the [A.M.A.,] Guides allow for the use of both the DBI and
ROM methods to calculate an impairment rating for the diagnosis in question, the method
producing the higher rating should be used.”13
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 10
percent permanent impairment of the right upper extremity and greater than 3 percent permanent
impairment of the left upper extremity, for which she previously received schedule award
compensation.
Dr. Xeller, the second opinion examiner, noted appellant’s accepted conditions for bilateral
shoulder rotator cuff strains and bilateral shoulder bursitis. Upon examination of appellant’s
shoulders, he observed slight impingement on the right and left and some pain with supraspinatus
resistant motion, bilaterally. For appellant’s right shoulder, Dr. Xeller provided three ROM
measurements and noted the highest measurements to be 150 degrees flexion, 50 degrees
extension, 142 degrees abduction, 50 degrees adduction, 42 degrees internal rotation, and 64
degrees external rotation. He indicated that ROM for appellant’s left shoulder was normal. Based
on the DBI method, Dr. Xeller found three percent permanent impairment of the right and left

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (March 2017). R.M., Docket No. 18-1313 (issued April 11, 2019); C.K., Docket No. 09-2371 (issued
August 18, 2010).
13

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
14

FECA Bulletin No. 17-06 (May 8, 2017).

5

upper extremities. Applying the ROM method, he found 10 percent permanent impairment of the
right upper extremity and normal range of motion of the left upper extremity -- no impairment.
In an August 27, 2018 report, Dr. White, the DMA, noted that he had reviewed appellant’s
history, including the SOAF and Dr. Xeller’s May 11, 2018 second-opinion report. For appellant’s
right shoulder, he utilized Table 15-5, Shoulder Regional Grid, and assigned class 1, tier 2 for right
tendinitis. Dr. White reported GMFH of 1 and GMPE of 1. After applying the net adjustment
formula, which resulted in no change, he determined that appellant had three percent right upper
extremity impairment under the DBI method. Dr. White indicated that the ROM method could
also be utilized to determine permanent impairment of appellant’s right shoulder. Utilizing Table
15-34, Shoulder Range of Motion, he reported that appellant had 3 percent impairment for flexion,
0 percent impairment for extension, 3 percent impairment for abduction, 0 percent impairment for
adduction, 4 percent impairment for internal rotation, and 0 percent impairment for external
rotation for a total of 10 percent right upper extremity impairment. Dr. White explained that,
pursuant to the A.M.A., Guides, because the ROM method resulted in the greater impairment,
appellant had 10 percent permanent impairment of the right upper extremity.
For appellant’s left shoulder, Dr. White referenced Table 15-5 and assigned class 1, tier 2
for left tendinitis under the DBI method. He assigned GMFH of 1 and GMPE of 1. After applying
the net adjustment formula, which resulted in no change, Dr. White determined that appellant had
default value of three percent left upper extremity impairment. Under the ROM methodology, he
indicated that appellant had zero percent impairment for normal range of motion according to
Table 15-34, Shoulder Range of Motion. Dr. White concluded that, since the DBI method
provided the higher rating, appellant had three percent permanent impairment of the left upper
extremity.
The Board finds that the DMA properly discussed how he arrived at his conclusion by
listing appropriate tables and pages in the A.M.A., Guides and established that appellant sustained
10 percent right upper extremity permanent impairment and 3 percent left upper extremity
permanent impairment. Dr. White accurately summarized the relevant medical evidence, provided
detailed findings on examination, and reached conclusions about appellant’s condition which
comported with his findings. 15 In addition, he properly utilized the DBI method and ROM method
to rate appellant’s bilateral shoulder condition pursuant to FECA Bulletin No. 17-06. As
Dr. White’s report is detailed, well rationalized, and based on a proper factual background, his
opinion represents the weight of the medical evidence. 16 Thus, the Board finds that appellant has
not met her burden of proof to establish that she is entitled to a greater bilateral upper extremity
permanent impairment than previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

15

J.M., Docket No. 18-1387 (issued February 1, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019).

16

See D.S., Docket No. 18-1816 (issued June 20, 2019).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 10
percent permanent impairment of the right upper extremity and more than 3 percent permanent
impairment of the left upper extremity, for which she previously received schedule award
compensation.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, ATLANTA BULK
MAIL CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 09-1085
Issued: November 17, 2009

Case Submitted on the Record

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

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a January 5, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s emotional condition claim was timely filed.
FACTUAL HISTORY
On November 6, 2008 appellant, a 44-year-old retired distribution clerk, filed an
occupational disease claim (Form CA-2) for emotional distress. She first became aware of her
condition and that it was caused or aggravated by her federal employment on December 4, 1993.
The form reflected that appellant first reported the condition to her supervisor on
November 7, 2008. Appellant retired on September 20, 2005.
Appellant noted on the form that the nature of the disease was “(emotional distress);
conditions” and that she was injured while in the performance of duty in 1993. The attachment

to the claim form elaborated that the nature of the illness was injury to neck, shoulders, legs
(MCL strain); (neck) cervical radiculopathy and trigger thumb right shoulder rotator cuff
tendinitis. She identified the Christmas holiday season, harassment by her supervisor and
working conditions at the employing establishment as sources of stress.
Appellant submitted a report from the medical health unit, which appears to be from
November 1997, diagnosing her with depression.
Appellant submitted additional evidence, including medical reports and notes, diagnosing
various physical conditions, as well as reports indicating that she was treated for an emotional
condition in the year 2000, under Office file number xxxxxx597. By decision dated January 5,
2009, the Office denied her claim because it was not filed in a timely manner.
LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) of the Federal
Employees’ Compensation Act states that an original claim for compensation for disability or
death must be filed within three years after the injury or death.1 Section 8122(b) of the Act
provides that, in latent disability cases, the time limitation does not begin to run until the
claimant is aware or by the exercise of reasonable diligence should have been aware, of the
causal relationship between the employment and the compensable disability.2 The Board has
held that, if an employee continues to be exposed to injurious working conditions after such
awareness, the time limitation begins to run on the last date of exposure.3
ANALYSIS
In this case, the Office denied appellant’s claim because it was not timely filed.
The Board notes that it is unclear exactly what appellant is alleging. Appellant indicated
that she became aware of her emotional condition on December 4, 1993. Her allegations and the
evidence submitted from 1993 indicate that she may have sustained a physical injury at that time.
Appellant has also alleged that she found working holiday seasons stressful. She did not detail
dates and actual duties that caused her alleged stress during holiday seasons. Appellant’s last
exposure to factors of her federal employment was September 20, 2005, the date she was last
employed by the employing establishment. Because she admits awareness of her emotional
condition as of December 4, 1993 and the date of last exposure was September 20, 2005, her
claim, filed November 6, 2008, was untimely.
In the case of a latent disability, the time for filing the claim does not begin to run until
the employee has a compensable disability and is aware, or reasonably should have been aware,

1

5 U.S.C. § 8122(b).

2

Garyleane A. Williams, 44 ECAB 441 (1993).

3

Larry E. Young, 52 ECAB 264 (2001). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter
2.801.3 (April 1995).

2

that her disability is causally related to her employment.4 In such a case, the time for giving
notice of injury begins to run when the employee knows, or reasonably should have known, that
she has a condition causally related to her employment, whether or not there is a compensable
disability.5 Appellant admits that she became aware of her emotional condition on
December 4, 1993. She also terminated her employment exposure on September 20, 2005.
Because appellant was aware of her emotional condition as of December 4, 1993, the time for
filing her claim commenced on the date of last exposure as this is not a case of latent disability.
Therefore, her claim was untimely filed.
A claim may also be allowed notwithstanding the time limitation if the employee’s
“immediate superior had actual knowledge of the injury … [sufficient] to put the immediate
superior reasonably on notice of an on-the-job injury” within 30 days of its occurrence. The
record lacks evidence demonstrating that appellant’s immediate superior reasonably had
knowledge of a work-related emotional condition. The undated health unit record, apparently
prepared in 1997, which provides a diagnosis of depression, does not provide any information
regarding the cause of appellant’s depression.
Finally, the Board notes that the evidence of record indicates that appellant had a prior
claim, which may have included a consequential psychiatric component. There is no evidence of
record, however, that evidence in that claim would establish timely filing in this matter.
Accordingly, the Board finds that appellant’s claim was untimely filed.
CONCLUSION
The Board finds that appellant has not established that her emotional condition claim was
timely filed.

4

Supra note 1.

5

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

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)
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)

Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1299
Issued: November 5, 2019

Case Submitted on the Record

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

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from a June 6, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury on
January 27, 2017 while in the performance of duty.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 21, 2017 appellant, then a 46-year-old master behavioral detection
analyst/officer) filed a traumatic injury claim (Form CA-1) alleging that on January 27, 2017 at
approximately 2:40 p.m. she sustained sprains/strains of her neck, arm, and back when she was a
passenger in an employee airport shuttle bus traveling to the employee parking lot. She explained
that the bus driver slammed on the brakes to avoid hitting another bus. Appellant also alleged that
the bus driver was speeding and tailgating. On the reverse side of the claim form, the employing
establishment noted that her regular shift was from 6:00 a.m. to 2:30 p.m. Appellant did not stop
work.
In a February 3, 2017 ambulatory work/school release form, Dr. Louie A. Anquilo, a
Board-certified family practitioner, provided work restrictions for appellant, including no lifting
more than five pounds.
On March 6, 2017 the employing establishment controverted the claim. It argued that
appellant was not in the performance of duty at the time of injury because she was “not on shift
when the injury occurred, she was not inside the airport at a work location, and she was not actually
in the performance of duty, screening passengers.”
In development letters dated March 6, 2017, OWCP requested additional factual and
medical information from both appellant and the employing establishment. It posed eight
questions requesting that the employing establishment provide information relative to parking and
transportation at appellant’s duty station, including whether or not appellant was injured while on
the employee bus #108, whether the bus and parking lots were owned, controlled, or managed by
the employing establishment, and whether appellant was required to use/park in the “employee
lot” or if other parking was available.
In a narrative statement dated January 27, 2017, appellant provided additional details of
the incident and indicated that at approximately 2:40 p.m. on that date she was waiting for the
employee bus, which was delayed, to transport her to the employee parking lot. Eventually, three
employee buses arrived at the same time and she boarded the first bus #108, along with her
coworkers E.P. and C.B., as well as other airport employees. After the bus passed the upper and
lower level merger and the hourly parking garage and was half-way to the employee parking lots,
the driver slammed on the brakes while driving on the main road. Appellant asserted that the
driver was speeding and tailgating another bus. She reported that everyone on the bus was
screaming and yelling at the driver asking, “Why are you speeding?” Appellant held onto a railing
so that she would not fall on the floor and moved forward and backwards while still hanging onto
the railing. E.P. was in the front of the bus holding onto the railing and was thrown forward after
the driver suddenly braked and hit the windshield and the front inside panel of the bus. The driver
did not ask anyone if they were hurt and continued to drive. Appellant exited the bus in the
employee lot 1. She got into her car and started driving, but could not turn her neck to the left and
experienced pain in her left arm and shoulder. Appellant returned to work on January 28, 2017,
the following day, and reported the incident to her manager, E.M., who provided her with the
contact information for the bus driver’s supervisor, L.D. She called L.D. and he advised her to
make a report, but when she followed up with him to inquire when he was available to meet, he
indicated that he had nothing to do with it and that she would need to contact T.R. in Risk
Management who would be in on February 2, 2017. Appellant advised L.D. that she was in pain

2

and needed to get to the urgent care. L.D. responded by saying that he did not know what to tell
her. Appellant went to an urgent care facility on January 28, 2017.
Appellant also submitted a report dated January 28, 2017 from Dr. Anquilo diagnosing
elevated blood pressure, neck muscle spasm, strain of back, and strain of neck muscle.
On March 2, 2017 the employing establishment offered appellant a limited-duty job as a
modified master behavioral detection officer (BDO) effective March 3, 2017, in accordance with
Dr. Anquilo’s February 3, 2017 restrictions. Appellant accepted the modified job offer.
In a statement dated March 14, 2017, the employing establishment indicated: (1) appellant
did suffer an injury while riding on the employee bus #108; (2) the bus and parking lot was not
owned, controlled, or managed by the Transportation Security Agency (TSA), but the City of
Charlotte; (3) the lot was available for all airport employees to use, including airline employees,
concession employees, and TSA employees, but the general public did not have access to the
parking lot; (4) appellant was not required to park in this parking lot and there was a parking lot
available directly across from the terminal, within walking distance, however there was a fee to
park in that lot; (5) parking spaces in the airport employee lot were not assigned by the agency;
(6) the parking lot was monitored on occasion to ensure that cars in that lot had airport issued hang
tags; (7) TSA uniformed employees did not pay for parking as TSA paid the airport directly for
their parking hang tags; and (8) appellant was not entitled to reimbursement for travel to and from
the parking lot or for parking expenses, but employees did not pay for parking expenses.
In a March 9, 2017 report, Tony Connot, a certified physician assistant, diagnosed left
shoulder pain and indicated that appellant had sustained a left shoulder injury on January 27, 2017
when a bus she was riding at work to the parking lot stopped suddenly.
A magnetic resonance imaging (MRI) scan of the left shoulder dated March 14, 2017
demonstrated mild acromioclavicular (AC) degenerative joint disease (and minimal subacromial/
subdeltoid bursitis.
In a March 23, 2017 report, Dr. Scott Burbank, a Board-certified orthopedic surgeon,
diagnosed left shoulder sprain. He asserted that appellant injured her left shoulder at work on
January 20, 2017 while she was on a bus on her way to work. Appellant explained that she was
holding the handrail and was abruptly thrown forward. She described an abduction and externally
rotated force to her left shoulder. Appellant also stated that her shoulder began hurting
immediately after her injury. Dr. Burbank released appellant to return to work without restrictions
on March 24, 2017.
By decision dated April 10, 2017, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that her injury occurred in the performance of duty.
It found that the injury occurred after appellant’s work shift, on a bus which was not owned and
operated by the employing establishment, and that she was not performing any part of her assigned
duties at the time of the event.
On March 9, 2018 appellant, through counsel, requested reconsideration and argued that
the injury occurred on the employing establishment’s premises because: (1) the employee parking
lot was monitored by the employing establishment; (2) appellant’s parking was full subsidized by
the TSA; (3) the parking area for employees at the airport was separate and apart from public
parking areas and could only be accessed via employee parking buses from the terminal area; and
3

(4) the option of enrolling with the prior TSA parking contractor had been cancelled, thus, this was
the only parking option available to TSA employees at the airport. Counsel also submitted the
Board’s decision in M.C., Docket No. 09-1718 (issued March 5, 2010) in support of his arguments.
OWCP received a memorandum dated March 1, 2018 from M.A., an employee parking
coordinator, addressed employee rights and responsibilities as related to parking at Charlotte
Douglas International Airport (CLT) in Charlotte, North Carolina. The memorandum stated that
all TSA-CLT employees were welcome to enroll in the employee parking assistance program
(EPAP) and beginning April 1, 2016 screening personnel were eligible for fully-subsidized
parking, including BDOs. It further noted that employees could not be enrolled in both transit
benefits (Ex: bus, light rail) and the parking subsidy program (free airport parking). Nonscreening
personnel were not eligible for the fully-subsidized parking benefit and the cost of employee
parking at CLT Airport was $25.00 per month.
In a signed sworn affidavit dated March 8, 2018, appellant confirmed that she was
employed by TSA as a behavioral detection analyst and had been so employed for nine years. She
worked at the CLT Airport. Appellant stated that her work location was inside the terminal at the
security checkpoints; however, she was “required” to park her vehicle in an employee parking lot
and thereafter take a city-owned employee bus to the terminal. Beginning in 2016 TSA began
paying the cost for her parking, access to the parking lot was controlled by key card, and the TSA
monitored employee use to prevent unauthorized access during nonwork hours. The employing
establishment provided the parking at no cost to employees. The general public did not have access
to the parking garage, as it was solely for use by airport employees only. The parking location
was over two miles from the terminal and employees were required to take a city bus to and from
the location. Appellant stated that there was no alternate parking available for employees other
than this lot and it was on the bus en route to the employee parking lot that she sustained her injury
on January 27, 2017.
Counsel further submitted a copy of an employing establishment PowerPoint presentation
entitled “Fully Subsidized Parking Implementation (EPAP Airports)” that provided fully
subsidized parking for screening personnel, including transportation security officers (TSO) and
behavior detection officers. The program’s start date was targeted for April 1, 2016. Fully
subsidized parking was for designated lots only.
By decision dated June 6, 2018, OWCP denied modification of its April 10, 2017 decision,
finding that appellant was no longer performing her federal duties at the time of injury, the accident
happened when the shuttle bus was en route to a parking lot, which was not owned, operated, or
maintained by the Federal Government, the adjacent area was owned and controlled by the City of
Charlotte, and all the employees of the airport (including nonfederal employees) were allowed to
park there. It concluded that because neither the parking lot, nor the shuttle bus, was owned,
operated, or maintained by the employing establishment for the use of its employees, and she had
another option for parking, appellant was not injured on the employing establishment’s premises
or an extension of such premises and she was not performing employment-related work at the time
of the incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
4

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 The phrase sustained while in the performance
of duty is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws, namely, arising out of and in the course of performance.7 In the course of
employment relates to the elements of time, place, and work activity. To arise in the course of
employment, an injury must occur at a time when the employee may reasonably be stated to be
engaged in the employing establishment business, at a place where he or she may reasonably be
expected to be in connection with his or her employment, and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.8
As to an employee having fixed hours and a fixed place of work, an injury occurring on
the premises while the employee is going to and from work before or after working hours or at
lunch time is compensable, but if the injury occurs off the premises, it is not compensable, subject
to certain exceptions. One of these is the proximity exception to the premises rule, which allows
constructive extension of the premises to those hazardous conditions which are proximate to the
premises and may, therefore, be considered as hazards of the employment.9 Underlying the
proximity exception is the principle that course of employment should extend to an injury that
occurred at a point where the employee was within the range of dangers associated with the
employment.10 The most common ground of extension is that the off-premises point at which the
injury occurred lies on the only route, or at least on the normal route, which employees must
traverse to reach the premises, and that, therefore, the special hazards of that route become the
hazards of the employment.11 This exception contains two components. The first is the presence

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

5 U.S.C. § 8102(a); J.K., Docket No. 17-0756 (issued July 11, 2018).

7

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
8

See J.K., supra note 6; Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B.
Barenkamp (Joseph L.Barenkamp), 5 ECAB 228 (1952).
9

K.D., Docket No. 18-0617 (issued February 13, 2019); D.K., Docket No. 11-1029 (issued February 1, 2012).

10

See J.K., supra note 6; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

11

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also J.K., supra note 6; R.O.,
Docket No. 08-2088 (issued May 18, 2009).

5

of a special hazard at the particular off-premises point. The second is the close association of the
access route with the premises, so far as going and coming are concerned.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In determining whether a bus should be considered part of the employing establishment’s
premises, the Board must first consider factors to determine whether the parking facility was under
sufficient control by the employing establishment. Factors to be considered include whether the
employing establishment contracted for its exclusive use by its employees, whether spaces were
assigned by the employing establishment, whether the area was checked to see that no
unauthorized cars were parked in the lot, whether parking was provided without cost to the
employees, whether the public was permitted to use the lot, and whether other parking was
available to the employees. Secondly, the Board must determine whether the shuttle bus is to be
considered part of the premises of the employing establishment.
OWCP in a March 6, 2017 development letter, requested additional factual information
from the employing establishment with regard to whether appellant was in the performance of duty
when injured on January 27, 2017. The employing establishment, however, provided only cursory
responses to the questions posed. For example, it contended that appellant was able to park in a
lot closer to the airport facility; however, it did not elaborate on location, use, and TSA employee
access to that lot at the time of appellant’s injury. Conversely, appellant maintained that the
satellite lot was her only available parking option. As well, the record contains references to a
number of parking lots that were available for employees; however, no specific information was
provided as to their location, usage, and TSA employee access. It therefore remains unclear as to
whether the satellite parking lot that appellant was traveling to at the time of the injury was the
only place that appellant was permitted to park at the time of her injury. The employing
establishment also failed to elaborate on the location, route, and criteria for the use of shuttle bus
#108.
OWCP’s procedures provide that it should obtain relevant information, including relevant
diagrams, from an official superior if it requires clarification before determining whether the
employee was on the premises.13 As such, the Board finds that the case record is incomplete.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source. The
Board finds that OWCP did not sufficiently develop the evidence regarding whether appellant was
on the premises of the employing establishment at the time of injury.
On remand OWCP should obtain additional information from the employing
establishment. The deficiencies in the evidence of record, as noted herein, should be addressed so
12

Id. at § 13.01(3)(b).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(f) and (g)
(August 1992); see also L.P., Docket No. 17-1031 (issued January 5, 2018).

6

that an informed determination can be made regarding whether appellant was in the performance
of duty at the time of her injury. If so, OWCP should adjudicate whether the factual and medical
evidence establishes that she sustained an employment injury as alleged. Following this and other
such development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: November 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Federal Plaza, NY, Employer
__________________________________________

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

Docket No. 07-1623
Issued: April 2, 2008

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from an April 25, 2007 merit decision of
the Office of Workers’ Compensation Programs finding that he received an overpayment of
compensation and that he was at fault in its creation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of $5,714.91 because he
received compensation for total disability from March 30 to June 11, 2005 while working part
time; and (2) whether the Office properly found that he was at fault in the creation of the
overpayment and thus not entitled to waiver.
FACTUAL HISTORY
On August 2, 1999 appellant, then a 39-year-old wildlife biologist, filed a claim alleging
that he herniated a cervical disc on July 19, 1999 pulling a net through a surf zone in the
performance of duty. The Office accepted his claim for cervical radiculitis.

On January 27, 2004 appellant sustained a recurrence of disability causally related to his
July 19, 1999 employment injury. The Office paid him compensation for temporary total
disability beginning that date. Appellant resumed intermittent work on February 9, 2004 but
sustained a recurrence of disability on July 26, 2004. On November 16, 2004 he underwent a
cervical discectomy and fusion at C5-6. On November 19, 2004 the Office placed him on the
periodic rolls. The Office informed appellant that he must immediately notify it when he
returned to work to avoid an overpayment of compensation.
Appellant returned to work for four hours per day on March 30, 2005. On June 1, 2005
he filed a claim for compensation for partial disability beginning April 4, 2005. Time and
attendance reports from the employing establishment indicate that appellant began working six
hours per day at the end of April 2005.
In a June 7, 2005 electronic mail message, a claims examiner noted that appellant had
received an overpayment from March 31 to April 16, 2005. The claims examiner indicated that
he would return checks for the period April 17 to May 14 and May 15 to June 11, 2005.
On February 13, 2007 the Office notified appellant of its preliminary determination that
he received an overpayment of $5,714.91 for the period March 30 to June 11, 2005 because he
returned to work for four hours per day but continued to receive compensation for total
disability. The Office calculated that he received an overpayment of $2,162.40 for the period
April 17 to June 11, 2005 and an overpayment of $1,390.11 for the period March 30 to
April 16, 2005. The Office informed appellant of its preliminary determination that he was at
fault in the creation of the overpayment because he accepted a payment that he knew or should
have known to be incorrect. The Office requested that he complete an overpayment recovery
questionnaire. The Office advised appellant that, within 30 days of the letter, he could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
By decision dated April 25, 2007, the Office finalized its finding that appellant received a
$5,714.91 overpayment because he received compensation for total disability after he resumed
part-time employment. It found that he was at fault in the creation of the overpayment and
therefore not entitled to wavier. The Office determined that appellant should send a check for
the entire amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act1 provides that, while an
employee is receiving compensation under the Act, the employee may not receive salary, pay or
remuneration of any type from the United States, except in limited circumstances.2

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8116(a).

2

ANALYSIS -- ISSUE 1
The Office determined that appellant received an overpayment of $5,714.91 for the
period March 30 to June 11, 2005 because he received compensation for total disability after he
returned to part-time employment. In order to confirm the continuing compensation payments,
the record should establish the specific payments that were made, the date issued and the
compensation period covered by the specific payments. The Board finds that the record is
devoid of any evidence that compensation was paid for the period in question. The Office’s
statements and calculations are not enough; proof of payment must be in the record. Otherwise,
the Board does not have sufficient evidence to review whether the Office properly determined
the amount of the overpayment. There is no evidence such as a computer printout establishing
the payment of compensation from March 30 to June 11, 2005. Therefore, the Office has failed
to establish that an overpayment occurred in this case.3
CONCLUSION
The Board finds that the Office failed to establish the existence of an overpayment.4

3

See F.A., Docket No. 07-1520 (issued October 23, 2007) (the Board found that the Office failed to establish that
an overpayment existed as the record was devoid of any evidence that the specific payments were made); J.C.,
Docket No. 06-1229 (issued September 14, 2006) (the Board found that the Office failed to establish an
overpayment when there was no evidence with respect to individual payments issued during the relevant time
period); Salvator A. Schembari, Docket No. 05-1309 (issued December 6, 2005) (the Board found that the Office
failed to establish that an overpayment existed as the record was devoid of any evidence that specific payments were
made, the date issued and the period covered by the specific payments).
4

In view of the Board’s disposition of the first issue, the issue of fault is moot.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2007 is reversed.
Issued: April 2, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4