United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BEAUREAU OF PRISONS, FEDERAL
DETENTION CENTER, Honolulu, HI, Employer
__________________________________________

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

Docket No. 08-2440
Issued: June 22, 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 May 7, 2008 appellant filed a timely appeal from an April 15, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs finding that she had abandoned her request
for a hearing and a May 21, 2007 merit decision denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit decisions.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
November 28, 2006; and (2) whether the Office properly determined that appellant abandoned
her request for a hearing.
FACTUAL HISTORY
On February 2, 2007 appellant, a 42-year-old accounting technician, filed a traumatic
injury claim (Form CA-1) for an injury to her lower back and the top of her buttocks which
occurred on November 28, 2006. She alleged that on November 28, 2006 she was on travel

status. During a dinner break from a training session, appellant went to a Target store for
supplies. She alleged that on the particular date in question it was snowing and that, as she
entered the store, she fell.
In support of her claim, appellant submitted several medical reports from her treating
physician, a Board-certified physiatrist, Dr. Tiva Hanjan. In a medical note dated December 7,
2006, Dr. Hanjan diagnosed appellant with lumbar spine dysfunction -- likely discogenic. He
recommended that she return to work in a light-duty capacity.
By letter dated April 20, 2007, the Office notified appellant that the evidence of record
was insufficient to support her claim because it did not establish that she was injured in the
performance of duty.
Appellant thereafter submitted a summary of her claim dated May 8, 2007. She reported
that her injury occurred while she was in Colorado, attending a mandatory training course
required for her employment at the Bureau of Prisons. The employing establishment provided
transportation, a government van, which appellant and her class of fellow employees utilized for
meals and other necessities during the training program. Appellant also noted that they routinely
used the van for store stops. On November 28, 2006 after the class ate dinner at a TGI Friday’s
Restaurant, the group went to a nearby Target store to purchase some personal items. As
appellant entered the store, she slipped and fell. She alleges that this was not a personal errand
because: she needed these personal items, consisting of gloves, toiletries, bottled water and
breakfast food for her temporary-duty assignment; she was accompanied by a group of fellow
employees; and she used a government-supplied van for the shopping trip.
By decision dated May 21, 2007, the Office denied appellant’s claim because the
evidence of record did not establish that she was injured in the performance of duty.
Appellant disagreed and requested an oral hearing. By letter dated February 21, 2008,
the Office notified her that a hearing was scheduled for March 26, 2008 at 9:00 am. It advised
appellant that she and/or her representative should be present.
Appellant failed to attend the hearing on March 26, 2008 and did not contact the Office,
either before or after the hearing, to explain why she failed to appear. By decision dated
April 15, 2008, the Office found that appellant had abandoned her request for a hearing.1
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of her duty.2 The phrase “sustained while in the performance of [her] duty” is
regarded as the equivalent of the coverage formula commonly found in workers’ compensation
1

Following the Office’s April 15, 2008 decision, by letter dated April 24, 2008 appellant reported that she never
received the Office’s February 21, 2008 letter and therefore had no notice of the hearing.
2

5 U.S.C. § 8102(a).

2

laws, namely, arising out of and in the course of employment.3 Arising in the course of
employment relates to the elements of time, place and work activity. An injury is said to arise in
the course of employment when it takes place within the period of the employment, at a place
where the employee reasonably may be, and while they are fulfilling their duties or are engaged
in doing something incidental thereto. Arising out of employment relates to the causal
connection between the employment and the injury claimed.4
Under the Act, an employee on travel status or a temporary-duty assignment or special
mission for her employer is in the performance of duty and, therefore, under the protection of the
Act 24 hours a day with respect to any injury that results from activities essential or incidental to
her special duties.5 Examples of such activities are eating,6 returning to a hotel after eating
dinner and engaging in reasonable activities within a short distance of the hotel where the
employee is staying.7 However, when a claimant voluntarily deviates from such activities and
engages in matters, personal or otherwise, which are not incidental to the duties of his or her
temporary assignment, they cease to be under the protection of the Act. Any injury occurring
during these deviations is not compensable.8 Examples of such deviations are visits to relatives
or friends while in official travel status,9 visiting nightclubs and bars,10 skiing at a location 60
miles from where an employee is undergoing training11 and taking a boat trip during nonworking
hours to view a private construction site.12
Such recreational activities fall within an employee’s performance of duty only in certain
specific circumstances. The general criteria for performance of duty as it relates to recreational
and social activities is set forth in Larson as follows:
“Recreational or social activities are within the course of employment when:
(1) They occur on the premises during a lunch or recreational period as regular
3

Bernard D. Blum, 1 ECAB 1 (1947).

4

See Charles Crawford, 40 ECAB 474 (1989) (the phrase “arising out of and in the course of employment”
encompasses not only the concept that the injury occurred in the work setting, but also the causal concept that the
employment caused the injury); see also Robert J. Eglinton, 40 ECAB 195 (1988); Clayton Varner, 37 ECAB 248
(1985); Thelma B. Barenkamp (Joseph L. Barenkamp), 5 ECAB 228 (1952).
5

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor,
4 ECAB 21 (1950).
6

Michael J. Koll, Jr., 37 ECAB 340 (1986); Carmen Sharp, 5 ECAB 13 (1952).

7

Ann P. Drennan; Janet Kidd (James Kidd), supra note 5; Theresa B.L. Grissom, 18 ECAB 193 (1966).

8

Karl Kuykendall, 31 ECAB 163 (1979).

9

Ethyl L. Evans, 17 ECAB 346 (1966); Miss Leo Ingram, 9 ECAB 796 (1958); George W. Stark, 7 ECAB
275 (1954).
10

Conchita A. Elefano, 15 ECAB 373 (1964).

11

Karl Kuykendall, supra note 8.

12

Mattie A. Watson, 31 ECAB 183 (1979).

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incident of the employment; or (2) The employer, by expressly or impliedly
requiring participation, or by making the activity within the orbit of the
employment; or (3) The employer derives substantial direct benefits from the
activity beyond the intangible value of improvement in employee health and
morale that is common to all kinds of recreation and social life.”13
Larson states that the outcome of these recreation cases turns on the “different ‘mix’ in
the fact situation.”
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.14
ANALYSIS -- ISSUE 1
Applying these principles to the present case, the Board finds appellant’s slip and fall
upon the tiled floor of a Target department store on November 28, 2006 did not occur within the
performance of duty. Appellant did not establish that she fell on the premises of the employing
establishment when she fell on November 28, 2006. Rather, she established that she was on the
private property of a Target department store. Appellant contends that, because she was
attending a mandatory training course, traveled to and from the store using a governmentprovided van and was accompanied by a group of fellow employees, her injury falls within the
scope of coverage provided by the Act.
This assertion, however, does not establish that the recreational activity (shopping) which
the employee was engaged in and that precipitated her slip and fall was within the performance
of duty. The Board has previously looked to a variety of factors to determine whether an
employee is considered to be in the performance of duty while in temporary travel status.
When a claimant voluntarily deviates from work activities, or activities reasonably
incidental to her work, and engages in matters, personal or otherwise, which are not incidental to
the duties of his or her temporary assignment, they cease to be under the protection of the Act.
Any injury occurring during these deviations is not compensable.15
Appellant’s attendance at the training conference was within the performance of duty and
it is not disputed that the conference was relevant to appellant’s job duties and would presumably
have been of benefit to appellant in the performance of those duties and therefore a benefit to her
employer as well. However, her injury did not occur while at the training conference, while
eating or while at her hotel. The injury at issue here occurred while appellant was shopping at a
13

Larson at § 22.00.

14

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

15

Karl Kuykendall, supra note 8.

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Target department store, and appellant has not established that this was incidental to the duties of
her temporary assignment.
Appellant has explained that, after her group of fellow employees finished dinner at a
TGI Friday’s Restaurant, the group decided to stop at a Target store before returning to the hotel.
She noted that the group had routinely stopped at stores the previous nights following dinner.
Appellant has not alleged that she needed to stop at the store because she specifically needed to
pick up an item related to her temporary-duty assignment. Rather, she noted that once she was at
Target, she shopped for personal items such as gloves, toiletries, bottled water and breakfast
foods. Appellant has not established that the visit to the Target store was in any way reasonably
incidental to the employment, rather than a recreational diversion. For example, she has not
explained why gloves were related to her temporary-duty assignment, nor has she explained that
water or breakfast foods were unavailable or unsuitable at the training conference site such that
shopping for them should be considered reasonably incidental to her temporary duty. While
appellant also noted that she purchased toiletries, she has not clarified the nature of these items to
establish that these items were reasonably necessary for her personal hygiene such that they
would be considered incidental to her temporary-duty status. Moreover, the facts that fellow
employees accompanied her and that she traveled in a government-provided van are not
sufficient to establish that appellant’s Target shopping trip was reasonably incidental to the
duties of her temporary assignment. Acting in concert with other similarly situated federal
employees does not convert otherwise recreational activities into an activity incidental to an
employee’s federal employment.
Based on this, appellant has not met her burden of proving she sustained an injury in the
performance of duty because her Target shopping trip was a recreational activity not incidental to
the purpose of the employee’s travel that was to attend a mandatory training conference. The
evidence of record therefore fails to establish that the recreational activity in which appellant was
engaged, and which caused her injury, meets the criteria of being within the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under the Act, 5 U.S.C. § 8124(b)(1), follows the initial
final merit decision of the Office. Section 8124(b)(1) provides as follows: Before review under
section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the
Secretary [of Labor] 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.
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing. Under these
circumstances, [the Branch of Hearings and Review] will issue a formal decision

5

finding that the claimant has abandoned his or her request for a hearing and return
the case to the [district Office].”16
This course of action is correct even if Branch of Hearings and Review can advise the
claimant far enough in advance of the hearing that the request is not approved and that the
claimant is, therefore, expected to attend the hearing and the claimant does not attend.17
ANALYSIS -- ISSUE 2
The record establishes that, on February 21, 2008, in response to appellant’s request for
an oral hearing, the Office mailed an appropriate notice of the scheduled March 26, 2008
hearing. The Board notes that the notice was sent more than 30 days prior to the hearing.
Appellant asserts that he never received a copy of the hearing notice. However, the record
reflects that a copy of the February 21, 2008 hearing notice was mailed to the correct address of
record for appellant and was not returned as undeliverable. The Board has found that, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business, such as in the course of the Office’s daily activities, is presumed to have arrived at the
mailing address in due course.18 This is known as the mailbox rule. As the record reflects that
the Office mailed a hearing notice to appellant’s address of record, it is presumed that it arrived
at his mailing address. The record shows that appellant did not request a postponement of the
hearing and failed to provide an explanation for his failure to attend within 10 days of the
scheduled date of the hearing. As the circumstances of this case meet the criteria for
abandonment, the Board finds that appellant abandoned his request for a hearing.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty on November 28, 2006, as alleged. The Board further finds that she
abandoned her request for an oral hearing.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007). See also
Claudia J. Whitten, 52 ECAB 483 (2001).
17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
18

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2008 and May 21, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Hadley, MA, Employer
__________________________________________

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

Docket No. 12-1161
Issued: December 21, 2012

Case Submitted on the Record

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

JURISDICTION
On May 2, 2012 appellant filed a timely appeal from an April 4, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) finding that she received an
overpayment of compensation and was not at fault in its creation. 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 the case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $5,928.96 for the period August 1, 2008 through
February 11, 2012 because she concurrently received FECA and Social Security Administration
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 4, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

(SSA) benefits without an appropriate retirement benefit offset; and (2) whether OWCP properly
denied waiver of recovery of the overpayment.
On appeal, appellant contends that as she has numerous bills to pay, recovery would be
against equity and good conscience and the debt should be waived.
FACTUAL HISTORY
OWCP accepted that appellant, then a 58-year-old accounting technician, sustained
cervical radiculopathy, exacerbation of cervical degenerative disc disease and aggravation of
lumbar arthritis due to factors of her federal employment. It paid her disability compensation on
the periodic rolls.
By letter dated February 10, 2012, OWCP informed appellant that she had been receiving
dual benefits from SSA and OWCP. SSA provided information relevant to her benefits with and
without Federal Employees’ Retirement Services (FERS) benefits from August 1, 2008 through
February 11, 2012. The letter noted that the portion of SSA benefits earned as a federal
employee was part of the FERS retirement package and the receipt of FECA benefits and federal
retirement benefits concurrently was a prohibited dual benefit. OWCP offset appellant’s SSA
benefits from her compensation by $134.58 for the period December 1, 2011 through
February 11, 2012.
On February 15, 2012 OWCP issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $5,928.96 from August 1, 2008 through
February 11, 2012 as she received dual benefits from SSA and OWCP. It calculated the amount
of overpayment by determining that which should have been offset for each period because it
resulted from FERS contributions and then adding these amounts to find a total overpayment of
$5,928.96. OWCP determined that she was not at fault in the creation of the overpayment. It
requested that she complete an enclosed overpayment recovery questionnaire and submit
supporting financial documents. OWCP notified appellant that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence or
a prerecoupment hearing.
Appellant requested that the district OWCP make a decision based on the written
evidence on the issues of fault and possible waiver of the recovery of the overpayment. She
stated that she had $500.00 in her savings account and could not afford to pay her bills, including
$5,200.00 on a personal loan and $1,500.00 of credit card debt. Appellant submitted a
Massachusetts registry of motor vehicles application for renewal in the amount of $50.00, a
credit card bill in the amount of $1,974.83, a BlueCross BlueShield bill in the amount of $30.05,
a medical bill in the amount of $193.72 and statements from her credit union dated March 2,
2012 showing $501.09 in savings and $5,212.30 in consumer loans.
By decision dated April 4, 2012, OWCP found that appellant received an overpayment of
compensation in the amount of $5,928.96 because it failed to offset a portion of SSA retirement
benefits. It found that she was not at fault in creating the overpayment but denied waiver on the
basis that she did not provide sufficient information to show that recovery would defeat the
purpose of FECA or be against equity and good conscience. OWCP determined that the

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overpayment could be recovered through payments of $250.00 deducted from appellant’s
continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.3
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply. In disability cases, FECA benefits will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal
service.4 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain
information from SSA on the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without
the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service and that
amount will be deducted from FECA benefits to obtain the amount of compensation payable.5
ANALYSIS -- ISSUE 1
The record establishes that appellant received SSA benefits attributable to her federal
employment under FERS for the period August 1, 2008 through February 11, 2012.6 Appellant
also received FECA disability compensation for overlapping periods. SSA records provided the
offset calculations for this period that totaled an overpayment of compensation in the amount of
$5,928.96.7 As appellant is not entitled to receive both FECA benefits and that portion of her
SSA benefits attributable to her federal employment, OWCP properly determined that an
overpayment of compensation in the amount of $5,928.96 was created.8

3

5 U.S.C. § 8116(d). See G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George
(Angelos George), 54 ECAB 201 (2002).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.l11(a)(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010).
5

FECA Bulletin 97-09 (issued February 3, 1997).

6

5 U.S.C. § 8116(d); see Janet K. George (Angelos George), supra note 3.

7

Effective August 1, 2008, appellant’s SSA rate varied between $1,052.00 to $1,154.00 a month with FERS and
$919.90 to $1,008.20 without. OWCP calculated the amount of FERS contributions that should have been offset per
28 days (OWCP pays compensation every 28 days) for each period and concluded that appellant received a total
overpayment of $5,928.96 from August 1, 2008 to February 11, 2012.
8

See Janet K. George (Angelos George), supra note 3.

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.9 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b): Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of FECA or would be
against equity and good conscience. A finding that the claimant was without fault is not
sufficient, in and of itself, for OWCP to waive the overpayment. OWCP must exercise its
discretion to determine whether recovery of the overpayment would defeat the purpose of FECA
or would be against equity and good conscience, pursuant to the guidelines provided in the
implementing federal regulations.
Section 10.436 of the implementing regulations10 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA. Recovery will defeat the purpose of FECA if
both: (a) the individual from whom recovery is sought needs substantially all of his current
income (including periodic benefits under FECA) to meet current ordinary and necessary living
expenses; and (b) the individual’s assets do not exceed the resource base (including but not
limited to cash, the value of stocks, bonds, savings accounts, mutual funds) of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each
additional dependent. The first $4,800.00 or more, depending on the number of claimant’s
dependents, is also exempted from recoupment as a necessary emergency resource. If an
individual has current income or assets in excess of the allowable amount, a reasonable
repayment schedule can be established over a reasonable, specified period of time. It is the
individual’s burden to submit evidence to show that recovery of the overpayment would cause
the degree of financial hardship sufficient to justify waiver.11 An individual is deemed to need
substantially all of his or her income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00.12
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on

9

5 U.S.C. § 8129(a).

10

20 C.F.R. § 10.436.

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200(6)(a) (June 2009). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436 and 10.437.
12

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

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such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.13
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.14 This information would
also be used to determine the repayment schedule, if necessary.
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.15 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
her current income, including compensation benefits, to meet current ordinary and necessary
living expenses, and the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.16 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when any individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when any individual, in reliance on such payment or
on notice that such payments would be made, relinquished a valuable right or changed her
position for the worse.17
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.18 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted. The information is
also used to determine an appropriate repayment schedule, if necessary. Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.19
When an overpayment has been made to an individual who is entitled to further payments
and no refund is made, OWCP shall decrease later payments of compensation, taking into

13

20 C.F.R. § 10.437.

14

Id. at § 10.438(a).

15

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

16

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
See P.B., Docket No. 12-438 (issued August 22, 2012); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6a(1)(b) (June 2009).
17

20 C.F.R. § 10.437(a), (b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

5

account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.20
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of FECA or be against equity and good conscience. On appeal appellant contends that
as she has numerous bills to pay, recovery would be against equity and good conscience and the
debt should be waived.
The February 15, 2012 preliminary overpayment determination advised appellant of the
various options available to her, including the submission of an overpayment recovery
questionnaire Form OWCP-20. Appellant was expected to respond in writing within 30 days of
the date of the preliminary determination. She reported $501.09 in savings and $5,212.30 in
consumer loans, among other credit card debt and outstanding bills, but did not submit an
overpayment recovery questionnaire or a summary of her monthly income and expenses.
Prior to issuing its April 4, 2012 final overpayment decision, OWCP did not receive any
evidence or argument from appellant that might otherwise support waiver of recovery of the
overpayment. It did not have access to any current financial information other than her monthly
SSA benefits, savings and FECA compensation. Appellant is responsible for providing
information about income, expenses and assets.21 This information is necessary for determining
whether a waiver of recovery is warranted.22 It is also used to determine an appropriate
repayment schedule.23 The regulations specifically provide that failure to submit the requested
financial information within 30 days of the request shall result in denial of waiver.24 Absent the
requisite financial information, the Board finds that OWCP properly denied waiver of recovery
of the overpayment. The Board further finds that under the circumstances, OWCP reasonably
imposed a repayment schedule of $250.00 from appellant’s continuing compensation benefits.
Further, there is no evidence in this case and appellant did not allege that she relinquished
a valuable right or changed her position for the worse in reliance on the excess compensation she
received from August 1, 2008 through February 11, 2012.25 Pursuant to its regulations, OWCP
properly found that recovery of the overpayment would not be against equity or good
conscience.

20

Id. at § 10.441(a).

21

5 U.S.C. § 10.438(a).

22

Id.

23

Id.

24

5 U.S.C. § 10.438(b).

25

See C.S., Docket No. 12-63 (issued July 5, 2012).

6

As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$5,928.96.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $5,928.96 for the period August 1, 2008 through February 11, 2012 because she concurrently
received FECA and SSA benefits without an appropriate retirement benefit offset. The Board
further finds that although appellant was without fault in creating the overpayment, OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, CAMERON POST
OFFICE, Cameron, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1389
Issued: June 30, 2021

Case Submitted on the Record

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

On July 16, 2020 appellant filed a timely appeal from a June 15, 2020 merit decision of the
Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards assigned Docket
No. 20-1389.1
The issues on appeal before the Board relate to OWCP’s finding of an overpayment of
wage-loss compensation benefits due to appellant’s alleged concurrent receipt of Federal
Employees’ Compensation Act2 (FECA) wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits without an appropriate offset for benefits
attributable to the Federal Employees Retirement System (FERS).

1
The Board notes that following the June 15, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

The Board finds that OWCP failed to properly develop the underlying issue of what portion
of appellant’s SSA age-related retirement benefits were attributable to federal employment.3
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation.4 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service.5 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.6 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of age-related SSA age-related retirement benefits, the Board has observed that
OWCP uses a FERS Offset Calculation Worksheet.7 This calculation worksheet is sent to SSA
and the completed form is returned to OWCP setting forth purported SSA calculations as to the
effective date and rate of SSA benefits without FERS and the effective date and rate of SSA
benefits with FERS. Following receipt of the purported SSA calculations, a preliminary
determination of overpayment is issued if a prohibited dual benefit was received.8
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service
Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal
retirement program. Therefore, OWCP’s procedures with regard to requesting offset information
are not applicable to all recipients of FECA compensation and SSA age-related retirement benefits.
Therefore, the information solicited on the FERS Offset Calculation Worksheet that OWCP sends
to SSA is not applicable to non-FERS claimants and does not establish either the fact or amount
of an overpayment.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. The
case record contains appellant’s statements dated December 7, 2004 and October 29, 2019 that she
was under CSRS, not FERS. A notification of personnel action Form PS 50 dated February 15,
2007 indicates that appellant’s service computation date was July 31, 1980 and her retirement plan
was CSRS offset. In an internal OWCP memorandum dated February 2, 2017, OWCP noted that

3

J.L., Docket No. 19-1806 (issued July 29, 2020).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1 (h) (September 2018).
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

FECA Bulletin No. 97-09 (February 3, 1997).

7

Id.

8

Supra note 2.

2

the employing establishment indicated that appellant was covered under CSRS. The Board
therefore finds that the June 15, 2020 final overpayment determination must be reversed.
IT IS HEREBY ORDERED THAT the June 15, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 30, 2021
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR LOGISTICS CENTER,
WARNER ROBINS AIR FORCE BASE, GA,
Employer
__________________________________________

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

Docket No. 07-530
Issued: July 9, 2007

Case Submitted on the Record

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

JURISDICTION
On December 18, 2006 appellant filed a timely appeal of a September 15, 2006 decision
of a hearing representative of the Office of Workers’ Compensation Programs that affirmed the
denial of his emotional condition claim and a March 9, 2006 decision denying his request for a
subpoena. 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 emotional condition in the
performance of duty; and (2) whether the Office abused its discretion in denying his request for a
subpoena.
FACTUAL HISTORY
On January 24, 2005 appellant, then a 56-year-old supervisor, filed an occupational
disease claim alleging that he developed stress and anxiety due to factors of his federal

employment. He indicated that he feared future reprisals and was unable to focus on his job.
Appellant related that the driving factor in his claim was the employing establishment’s failure to
consider his disabling medical condition in a forced reassignment to Washington, D.C.
Contributing factors included the alleged reprisal actions, failure to properly conduct requested
investigations and failure to provide responses to valid employee requests.
On February 11, 2005 the Office informed appellant that the information submitted was
insufficient to establish his claim. It requested a detailed description of the conditions or
incidents he believed caused or contributed to his illness. The Office advised him to submit a
medical report providing a diagnosis and an opinion with an explanation as to how incidents of
federal employment contributed to the condition.
Appellant submitted medical reports from Dr. Samir Parekh, a Board-certified internist.
On August 16, 2004 Dr. Parekh stated that appellant was undergoing treatments equivalent to
chemotherapy for a serious, chronic medical condition. He opined that, given the demands of a
new job and additional stressors and time demands that would be encountered, the proposed
relocation to Washington, D.C., would be counter-productive to appellant’s overall physical and
mental well-being. Dr. Parekh advised against the move, “if possible.” On December 14, 2004
he expressed concern as to how appellant would cope with the loss of a strong family support
system, were he to relocate out of the area. Dr. Parekh stated that, if appellant was forced to stop
treatment for his chronic condition due to side effects, the only alternative would be a liver
transplant. He opined that relocation was not in appellant’s best interests. On January 7, 2005
Dr. Parekh stated that appellant was unable to work from December 12, 2004 through January 9,
2005 due to treatment for a chronic liver condition. On January 21, 2005 he stated that appellant
was on sick leave until further notice. In a report dated January 26, 2005, Dr. Parekh indicated
that appellant’s current physical and medical condition had deteriorated to the point that he was
unable to work. He opined that appellant’s recent move and demands of his new job had
compounded his stress and anxiety, stating that “the added stress and move away from his
support systems, both family and medical support; a new job; adjustment to a new city;
frustration with feeling too ill to work; and treatment side effects of anxiety in a new situation
have been extremely difficult for [appellant].”
Appellant also submitted reports from Dr. Sanjay M. Sharma, a Board-certified
psychiatrist. On January 20, 2005 Dr. Sharma recommended that appellant be permitted to
remain in the Atlanta area, where he would be able to have close follow-up to monitor his
mental, psychological and emotional state, as well as his chronic hepatitis. On March 29, 2005
he diagnosed anxiety disorder and stated that he supported an indefinite leave of absence. In a
report dated April 8, 2005, Dr. Richard B. Ellis, a Board-certified psychiatrist, opined that
appellant was disabled from work due to anxiety comparable to post-traumatic stress disorder.
He stated that appellant’s condition was directly related to being reassigned to a position that
removed him from trusted medical treatment and a social support group. Dr. Ellis opined that
appellant could not continue treatment in Washington, D.C., despite its superb medical facilities,
because he was frightened by the prospect of the move. Additionally, appellant would either
have to uproot his teenage children and deal with their resistance to the move, or leave his family
in Atlanta, depriving him of a support group. Dr. Ellis stated that appellant’s response to this
situation was anxiety.

2

On March 2, 2005 appellant stated that the specific agency action that caused his
psychological illness, stress and anxiety was the forced move which was in direct opposition to
his doctor’s medical advice and was inconsistent with previous employing establishment
accommodations for his disabling condition. He contended that the transfer showed a complete
lack of concern for his health and created a level of stress that precluded him from working.
Appellant also contended that the past actions of the employing establishment proved that his
request to remain in his current location was reasonable. In 2001, the employing establishment
had reversed a decision to relocate him after considering his disabling liver condition. Appellant
identified other actions at the employing establishment which contributed to his stress and
anxiety, including: “false and libel” documentation about his performance by Major General
Collings on August 2, 2004; Major General Collings calling him a liar, escorting him from his
office and stating that he could “make things ugly” on July 14, 2004; General Martin advising
him to look for another assignment on August 2, 2004; Major General Collings providing
untruthful information on August 6, 2004 stating that the employing establishment’s request that
he volunteer to move was not an act of reprisal but had been planned for some time; failure of
Major General Collings to comply with personnel policy and regulations; disparate and
inappropriate treatment by Brigadier General Morrill; failure of the employing establishment to
adequately assess discrimination due to his medical disability; age and disability discrimination
by Brigadier General Morrill; and denial of leave in spite of sufficient medical justification.
Appellant submitted a chronological history of events from 1994, when he was initially
diagnosed with chronic hepatitis, through January 2005, when he asked the employing
establishment to reconsider his forced relocation. He reiterated that in February 2001 the
employing establishment had reconsidered its proposal to relocate him to Ohio in light of his
disabling condition, and had accommodated him by cancelling the transfer. From January
through September 2004, the employing establishment failed to investigate inappropriate
management actions. He contended that the employing establishment’s September 23, 2004
decision to relocate him to Washington, D.C., was a direct result of, and in retaliation for, his
August 26, 2004 action filed with the employing establishment complaining about prohibited
personnel actions. In a September 25, 2004 letter to General Martin, appellant requested
reconsideration of his reassignment based on his medical condition. He stated that his family
would not be able to accompany him on the move; that his medical support was located in
Atlanta; and that he needed full family leave to support his mother in an assisted living facility.
In an undated supplement to his Form CA-2, appellant alleged reprisal, verbal abuse,
discrimination through encouragement to retire, inappropriate and libelous documentation and
attempts to misrepresent the issues in this case. On February 15, 2005 he stated that in 2004 he
began challenging the inappropriate behavior of Major General Collings, who called him a liar
on numerous occasions and said he “could make things ugly.” On August 2, 2004 General
Martin sent appellant an email recommending that, if he could not get along with his
commander, he might want to look for reassignment. On August 6, 2004 appellant stated that he
was asked to “volunteer” to move to Washington, D.C. and was given incorrect information by
Major General Collings. On August 26, 2004 he filed an inspector general complaint alleging
reprisal. On September 23, 2004 appellant was informed of a decision to relocate him to
Washington, D.C., with an effective date of December 12, 2004.

3

The employing establishment controverted appellant’s claim. In an undated attachment
to the supervisor’s report, it stated that his reassignment to Washington, D.C., was proper, and
that his request was fully reviewed by the entire chain of command in light of his medical
condition. The employing establishment noted that, as a member of the senior executive service
(SES), appellant was subject to reassignment outside of his commuting area upon 60 days’
written notice, pursuant to 5 U.S.C. § 3395(a)(2)(B), and that Congress intended the SES to be a
mobile corps of managers who could be expeditiously reassigned to meet shifting agency
priorities.
The record contains correspondence from the employing establishment to appellant
regarding his request to cancel the reassignment to Washington, D.C. On November 23, 2004
Lieutenant General Richard Reynolds indicated that no compelling rationale had been found to
cancel the reassignment and stated that his failure to accept the position would be considered a
declination, making him subject to removal. On November 29, 2004 Lieutenant General
Reynolds noted that the Secretary had considered all of the documentation that appellant had
provided pertaining to his medical condition and thanked him for accepting the position.
Appellant submitted numerous letters asking the employing establishment to explain its rationale
for moving him in light of his medical condition.
In email correspondence between appellant and Brigadier General Morrill on
December 19 and 20, 2004, appellant complained that he had not received adequate information
regarding sick leave and restoration of annual leave, and requested a review of the decision to
relocate him. He stated that he would be medically impacted by the proposed move to
Washington, D.C., and requested sick leave due to chemo-like treatments and stress until his
report date. Brigadier General Morrill informed appellant that full documentation was required
in support of sick leave requests. Appellant inquired as to what additional information was
necessary in order to satisfy his sick leave requests. On January 7, 2005 Brigadier General
Morrill submitted an 11-page email response to 28 questions posed by appellant relating to
general sick leave and annual leave policies, as well as specific questions relating to his own sick
leave requests. In emails dated January 14 and 19, 2005 to Lieutenant General Donald Wetekan,
appellant stated that he planned to file a grievance against Brigadier General Morrill for disparate
treatment; communicating with him in a demeaning manner; implying that he was insubordinate;
failing to provide accurate information; and suggesting that he seek medical retirement. In
correspondence dated January 29 through February 1, 2005 between appellant and
Major Kirkpatrick, appellant stated that his belief that his relocation was an act of reprisal.
Appellant complained to the employing establishment about perceived disparate
treatment. On January 26, 2005 he stated that Brigadier General Morrill treated him differently
than other employees by refusing to answer his questions, giving him inaccurate answers, stating
that he was insubordinate and disapproving of his attire. On that same date, appellant alleged
that the employing establishment’s failure to attempt to resolve his grievance added to his stress.
The record reflects that appellant filed grievances, inspector general complaints, Equal
Employment Opportunity (EEO) complaints, and an appeal with the Merit Systems Protection
Board (MSPB), alleging disparate treatment on the part of his supervisors at the employing
establishment. He reiterated his contentions that it had failed to conduct fair investigations
regarding prohibited personnel actions, and had reassigned him to Washington, D.C., as a

4

retaliatory measure. In a May 10, 2005 settlement agreement between appellant and the
employing establishment, appellant agreed to withdraw all pending complaints. However, he did
not waive his right to compensation under the Federal Employees’ Compensation Act.
By decision dated August 2, 2005, the Office denied appellant’s claim on the grounds
that he failed to establish a compensable factor of employment. The Office found that
appellant’s relocation was an administrative act and that appellant had not established error or
abuse on the part of the employing establishment in directing his relocation to Washington, D.C.
On August 9, 2005 appellant requested an oral hearing. By letter dated August 9, 2005,
he requested a subpoena for all internal employing establishment correspondence and documents
addressing his reassignment to Washington, D.C. By decision dated March 9, 2006, the Branch
of Hearings and Review denied his subpoena request on the grounds that he failed to explain
how the documents requested would demonstrate that the employing establishment’s activities
caused his injury. The Office further indicated that appellant failed to explain why the
information requested could not be obtained through the Freedom of Information Act.
In an undated statement entitled “dual standards,” appellant reiterated allegations of
agency wrongdoing and abuse of authority. He alleged that senior managers had given certain
individuals unfair competitive advantage without proper investigation while, at the same time,
unfairly disciplining other employees. Appellant submitted a memorandum entitled “Allegations
of Reprisal and Extension of Whistleblower Protection under 10 U.S.C. § 1034.” He alleged that
following his challenge of a performance award and the application of dual standards to selected
management, Major General Goings and Steve Davis initiated action for his reassignment that
was detrimental to his health.
At the oral hearing, held on March 21, 2006, appellant stated his reasons for requesting a
subpoena for documents relating to his reassignment. He explained that he “knew that [the
employing establishment] would not provide the information under the Freedom of Information
Federal Employees’ Compensation Act,” because it had objected to providing documents
pursuant to discovery in his MSPB case on the grounds of attorney-client privilege. Appellant
submitted documents relating to his MSPB case, including the May 10, 2005 settlement
agreement; emails from him to the employing establishment expressing disappointment over his
annual review; and a September 29, 2004 memorandum from him, referencing a timeline for a
job announcement.
By decision dated September 15, 2006, the Office hearing representative affirmed the
denial of appellant’s claim, finding that he had failed to establish any compensable factors of
employment. Finding that the decision to reassign appellant was administrative in nature, the
hearing representative noted that the employing establishment had not committed error or abuse,
but rather had acted reasonably under the circumstances.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the

5

concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act. On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his frustration from not being permitted
to work in a particular environment or to hold a particular position.1
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Federal Employees’ Compensation Act. However, where the evidence demonstrates that
the employing establishment either erred or acted abusively in the administration of personnel
matters, coverage may be afforded.2 Assignment of work is an administrative function of the
employer,3 as is an investigation by the employing establishment.4
Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.5 The fact that a claimant has
established compensable factors of employment does not establish entitlement to compensation.
The employee must also submit rationalized medical opinion evidence establishing that he or she
has an emotional condition that is causally related to the compensable employment factor.6 The
opinion of the physician must be based on a complete factual and medical background, 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 compensable
employment factors identified by appellant.7
ANALYSIS -- ISSUE 1
Appellant has not attributed his emotional condition to the performance of his regular
duties or to any special work requirement arising from his employment duties under Cutler, nor
has he implicated his workload as having caused or contributed to his emotional condition.
Appellant contended that his assignment to Washington, D.C., constituted error and abuse on the
part of his superiors and was thus compensable. However, the Board has consistently held that

1

Lillian Cutler, 28 ECAB 125 (1976).

2

Michael Thomas Plante, 44 ECAB 510 (1993).

3

James W. Griffin, 45 ECAB 774 (1994).

4

Jimmy B. Copeland, 43 ECAB 339 (1991).

5

Joel Parker, Sr., 43 ECAB 220 (1991).

6

James W. Griffin, supra note 3.

7

Donna Faye Cardwell, 41 ECAB 730 (1990).

6

frustration from not being permitted to work in a particular work environment is not a
compensable factor under the Federal Employees’ Compensation Act.8
The Board finds that appellant’s allegation that the employing establishment improperly
directed his transfer to Washington, D.C., relates to administrative or personnel matters,
unrelated to his regular or specially assigned work duties, and does not fall within the coverage
of the Federal Employees’ Compensation Act.9 Although the handling of disciplinary actions
and leave requests, the assignment of work duties and the monitoring of work activities are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.10 However, the Board has also found that an administrative or personnel
matter will be considered to be an employment factor where the evidence discloses error or
abuse on the part of the employing establishment. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.11 In this case, appellant has not submitted sufficient evidence to
establish that his superiors committed error or abuse with respect to this matter. On the contrary,
the evidence presented establishes that the managers acted reasonably under the circumstances in
effecting his transfer.
Appellant contends that the forced move to Washington, D.C., was inconsistent with
previous employing establishment accommodations for his disabling condition, which proved
that his request to remain in the Atlanta area was reasonable. He contended that the transfer
showed complete lack of concern for his health and created a level of stress that has precluded
him from working. However, the evidence shows that the employing establishment consistently
considered appellant’s chronic liver condition. In February 2001, it proposed to relocate
appellant to Ohio, but this matter was reconsidered in light of his medical condition and he was
permitted to remain in the Atlanta area. The employing establishment controverted appellant’s
claim, asserting that his request to remain in Atlanta had been fully reviewed by the entire chain
of command in light of his medical condition. On November 23, 2004 the employing
establishment stated that it had considered all of the documentation provided by appellant, but
had found no compelling reason to cancel his reassignment. Appellant claimed that, by forcing
him to move to Washington, D.C., the employing establishment would be removing him from his
medical and family support systems, in that his family would not accompany him and he did not
want to make a change in his medical treatment. However, the evidence does not reflect that
appellant’s family was unable to accompany him, but rather indicates that his children wanted to
remain in Atlanta to finish school. There is also no indication that medical care was unavailable
in Washington, D.C. In fact, appellant’s physician, Dr. Ellis, acknowledged that Washington,
D.C., had superb medical facilities, but opined that appellant could not continue treatment there
because he was frightened by the prospect of the move. Appellant’s reaction to the proposed
8

See Cyndia R. Harrill, 55 ECAB 522 (2004).

9

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988).
10

Id.

11

See Richard J. Dube, 42 ECAB 916, 920 (1991).

7

reassignment constitutes a fear of future injury, which is not compensable under the Federal
Employees’ Compensation Act.12 The Board also notes that, as a member of the SES, appellant
was subject to reassignment outside of his commuting area upon 60 days’ written notice,
pursuant to 5 U.S.C. § 3395(a)(2)(B), and that Congress intended the SES to be a mobile corps
of managers who may be expeditiously reassigned to meet shifting agency priorities.
Appellant stated that the forced transfer was unreasonable in that it was in direct
opposition to his doctor’s medical advice. However, the medical evidence of record does not
support his contention. Dr. Parekh opined that, given the demands of a new job and additional
stressors and time demands that would be encountered, the proposed relocation to Washington,
D.C., would be counter-productive to appellant’s overall physical and mental well-being and
advised against the move, “if possible.” He expressed concern as to how appellant would cope
with the loss of a strong family support system, were he to relocate out of the area. The concerns
expressed by Dr. Parekh relate to appellant’s frustration from not being permitted to work in a
particular work environment, which is not a compensable factor under the Federal Employees’
Compensation Act.13 Moreover, Dr. Parekh’s recommendation that the move should be
reconsidered “if possible” is equivocal in nature.
Appellant’s allegations that the employing establishment improperly denied his leave
requests despite sufficient medical justification, and failed to properly conduct requested
investigations, to provide responses to valid employee requests, or to adequately assess
discrimination due to his medical condition, also relate to administrative matters. The record
reflects that, in response to his numerous letters and emails, the employing establishment
provided responses explaining in detail the reasons for its actions. Appellant has not
demonstrated that the employing establishment committed error or abuse with regard to these
managerial functions, and his dislike of or disagreement with the actions is not a compensable
factor of employment. The Board finds that he has not established a compensable employment
factor under the Federal Employees’ Compensation Act with respect to these administrative
matters.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from appellant’s
performance of his regular duties, these could constitute employment factors.14 However, for
harassment or discrimination to give rise to a compensable disability under the Federal
Employees’ Compensation Act, there must be evidence that harassment or discrimination did in
fact occur. Mere perceptions of harassment or discrimination are not compensable under the
Federal Employees’ Compensation Act.15 In the present case, appellant has not submitted

12

Virginia Dorsett, 50 ECAB 478, 482 (1999).

13

See Cydia R. Harrill, supra note 8.

14

See Lori A. Facey, supra note 9. See also David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker,
42 ECAB 603, 608 (1991).
15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

8

sufficient evidence to establish his claim.16 He alleged that he was treated in a demeaning
manner due to poor management skills. Appellant contended that his forced relocation was a
reprisal for his claims against the employing establishment. He alleged that Brigadier General
Morrill discriminated against him on the basis of his age and his disability, and encouraged him
to retire; that Major General Collings provided “false and libel” documentation about his
performance, and untruthful information on August 6, 2004 when he stated that the employing
establishment’s request that he volunteer to move was not an act of reprisal but had been planned
for some time; that General Martin advised him to look for another assignment on August 2,
2004; and that he was told that, if he could not get along with his commander, he may want to
look for reassignment. His allegations alone are insufficient to establish a factual basis for his
claim.17 Appellant provided insufficient evidence, such as witness statements, to substantiate his
claims. General allegations that appellant was treated unfairly and disrespectfully by
management are insufficient to establish that harassment or discrimination did, in fact, occur.
Thus, the Board finds that appellant has not established a compensable employment factor under
the Federal Employees’ Compensation Act with respect to these above-described allegations.
The record reflects that appellant filed grievances, inspector general complaints, EEO
complaints and an appeal with the MSPB. Grievances and EEO complaints, by themselves, do
not establish that workplace harassment or unfair treatment occurred.18 Where an employee
alleges harassment and cites specific incidents, the Office or other appropriate fact-finder must
determine the truth of the allegations. The issue is not whether the claimant has established
harassment or discrimination under EEO Commission standards. Rather, the issue is whether the
claimant, under the Federal Employees’ Compensation Act, has submitted sufficient evidence to
establish a factual basis for the claim by supporting his or her allegations with probative and
reliable evidence.19 Appellant has failed to do so in this case.
Appellant alleged that Major General Collings verbally abused him by calling him a liar
and saying that he could “make things ugly.” The Board has recognized the compensability of
verbal abuse in certain circumstances. This does not imply, however, that every statement
uttered in the workplace will give rise to coverage under the Federal Employees’ Compensation
Act.20 The Board notes initially that appellant did not provide any evidence to corroborate that
the alleged statements were actually made. As alleged, the Board finds that these statements do
not constitute verbal abuse or harassment. While the statements may have engendered offensive
feelings, they did not sufficiently affect the conditions of employment to constitute a
compensable factor.21
16

See Joel Parker, Sr., supra note 5 (finding that a claimant must substantiate allegations of harassment or
discrimination with probative and reliable evidence).
17

Charles E. McAndrews, 55 ECAB 711 (2004).

18

James E. Norris, 52 ECAB 93 (2000). See also Parley A. Clement, 48 ECAB 302 (1997).

19

See James E. Norris, supra note 18. See also Michael Ewanichak, 48 ECAB 354 (1997).

20

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, supra note 14.

21

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

9

Appellant reported that he felt lost and betrayed by his supervisors’ harassment.
However, under the circumstances of this case, the Board finds that appellant’s emotional
reaction must be considered self-generated, in that it resulted from his perceptions regarding his
supervisors’ actions.22
For the foregoing reasons, appellant has not established any compensable employment
factors under the Federal Employees’ Compensation Act and, therefore, has not met his burden
of proof in establishing that he sustained an emotional condition in the performance of duty.23
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Federal Employees’ Compensation Act provides that the Secretary of
Labor, on any matter within her jurisdiction under this subchapter, may issue subpoenas for and
compel the attendance of witnesses within a radius of 100 miles.24 The implementing regulation
provides that a claimant may request a subpoena, but the decision to grant or deny such a request
is within the discretion of the hearing representative, who may issue subpoenas for the
attendance and testimony of witnesses and for the production of books, records, correspondence,
papers or other relevant documents. Subpoenas are issued for documents only if they are
relevant and cannot be obtained by other means, and for witnesses only where oral testimony is
the best way to ascertain the facts. In requesting a subpoena, a claimant must explain why the
testimony is relevant to the issues in the case, and why a subpoena is the best method or
opportunity to obtain such evidence because there is no other means by which the testimony
could have been obtained.25 Section 10.619(a)(l) of the implementing regulations provides that a
claimant may request a subpoena only as part of the hearings process and no subpoena will be
issued under any other part of the claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.26
The Office hearing representative retains discretion on whether to issue a subpoena.
The function of the Board on appeal is to determine whether there has been an abuse of
discretion.27 Abuse of discretion is generally shown through proof of manifest error, a clearly

22

See David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

23

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
24

5 U.S.C. § 8126.

25

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

26

20 C.F.R. § 10.619(a)(l).

27

See Gregorio E. Conde, supra note 25.

10

unreasonable exercise of judgment, or actions taken which are clearly contrary to logic and
probable deductions from established facts.28
ANALYSIS -- ISSUE 2
On March 9, 2006 the Branch of Hearings and Review denied appellant’s request for a
subpoena on the grounds that he failed to explain how the documents requested would
demonstrate that the employing establishment’s activities caused his injury. The Office further
indicated that appellant failed to explain why the information requested could not be obtained
through the Freedom of Information Act. Appellant testified at the oral hearing that he “knew
that [the employing establishment] would not provide the information under the Freedom of
Information Act” because it had objected to providing documents pursuant to discovery in his
MSPB case on the grounds of attorney-client privilege. However, this reasoning is insufficient
to establish that the documents could not be obtained through the Freedom of Information Act.
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts and similar criteria. It is not enough to merely show
that the evidence could be construed so as to produce a contrary factual conclusion.29
The Board finds no abuse of discretion in the Office hearing representative’s denial of
appellant’s request for subpoenas. The Board will affirm the hearing representative’s March 9,
2006 decision on this issue.
CONCLUSION
The Board finds that appellant has failed to establish a compensable factor of
employment. The Board further finds that the Office did not abuse its discretion in denying
appellant’s request for a subpoena.

28

Claudio Vazquez, 52 ECAB 496 (2001); Martha A. McConnell, 50 ECAB 128 (1998).

29

Dorothy Bernard, 37 ECAB 124 (1985).

11

ORDER
IT IS HEREBY ORDERED THAT the September 15 and March 9, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Little Rock, AR,
Employer
__________________________________________

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

Docket No. 14-613
Issued: October 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 3, 2014 appellant filed a timely appeal from a December 20, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days has elapsed from the last merit decision dated
April 26, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of his
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the December 20, 2013 nonmerit
decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that his disability is due to his employment and that he is
entitled to wage-loss compensation as his disability is employment related.
FACTUAL HISTORY
This case has previously been before the Board. In an October 6, 2011 decision, the
Board affirmed a June 18, 2010 OWCP decision denying appellant’s claim for wage-loss
compensation for the period March 19 through October 22, 2007 causally related to an
April 5, 2004 employment injury.2 The Board found that he failed to submit sufficient medical
evidence to establish that he was totally disabled for the period March 19 through October 22,
2007 due to his accepted employment injuries. Appellant also failed to submit medical evidence
explaining why he was unable to perform his light-duty position during this period or a material
change in his accepted condition. The facts of the case as set forth in the Board’s prior decision
are incorporated herein by reference.3
Appellant filed claims for wage-loss compensation commencing May 30, 2012.4
By letter dated August 13, 2012, OWCP informed appellant that the evidence was
insufficient to establish his claim for wage-loss compensation. Appellant was advised as to the
medical and factual evidence required to support his claim.
By decision dated September 27, 2012, OWCP denied appellant’s claim for a recurrence
of disability on and after May 23, 2012.
On October 9, 2012 appellant requested an oral hearing before an OWCP hearing
representative and a telephonic hearing was held on February 11, 2013. He testified that he
stopped work on May 16, 2012 and has not returned.
By decision dated April 26, 2013, an OWCP hearing representative found the evidence
insufficient to establish that appellant’s total disability on and after May 23, 2012 was causally
related to his accepted April 5, 2004 employment injuries. She found that the evidence
implicated new factors as he attributed his disability to disputes with his supervisor following a
May 2012 meeting. The hearing representative found the evidence insufficient to establish either
a spontaneous change in his condition or a natural worsening of his condition.
2

Docket No. 11-278 (issued October 6, 2011).

3

On April 5, 2004 appellant, then a 38-year-old building equipment mechanic, sustained a traumatic injury when
she slipped on a wet ladder and fell onto a folding chair. OWCP accepted the claim for neck sprain, lumbar sprain
and rib sprain, which was expanded to include a consequential injury of anxiety disorder with mixed anxiety and
depressed mood. It assigned claim file number xxxxxx098. OWCP subsequently accepted an unspecified anxiety
state and major depression with recurrent episode, severe with mention of psychotic behavior. Appellant returned to
a light-duty job on April 12, 2004 due restrictions from his physician. On June 5, 2007 he filed an occupational
disease claim alleging that on April 20, 2006 he first realized that his stress and anxiety were due to conflicts with
his supervisor over work restrictions. This was assigned claim file number xxxxxx005. By letter dated April 24,
2008, OWCP informed that claim file numbers xxxxxx005 and xxxxxx098 were doubled, with the latter number
designated the master file number.
4

Appellant was fired by the employing establishment on or about August 17, 2012.

2

Following the April 26, 2013 decision, OWCP accepted appellant’s claim to include the
conditions of cervical and lumbar spine spondylosis.
On August 22, 2013 appellant requested reconsideration on the denial of his wage loss on
and after May 16, 2012.
He submitted an arbitration decision dated August 1, 2013.
Jim K. Duncan, an arbitrator, concluded that the employing establishment had just cause to
discipline appellant, but not for his removal. The decision instructed the employing
establishment that appellant’s removal be reduced to a suspension. Mr. Duncan instructed that
appellant’s return to work was conditional and based on appellant providing acceptable medical
documentation regarding the resolution of his medical issues. He found that the record
supported that appellant had “some type of medical condition which obviously” impacted the
ability to perform his work.
In an August 28, 2013 letter, Dr. Phillip A. Tracy, a treating Board-certified family
medicine physician, stated that appellant continued to be totally disabled from working due to his
depression and anxiety.
In reports dated August 7 and September 16, 2013, Dr James M. Sims, a treating
psychiatrist, recommended that appellant be transferred to a different supervisor due to the
conflict between him and his current supervisor. In the September 16, 2013 report, he opined
that appellant was unable to return to work due to his anxiety and major depression, recurrent
episode, severe with psychotic behavior. Dr. Sims stated that appellant’s past conflicts with his
supervisor “continues to cause him stress” and he worries about possible future contact with this
supervisor.
In an October 25, 2013 statement, appellant argued that it did not matter whether his
disability was due to his interaction with his supervisor or was a spontaneous recurrence as his
disability was employment related.
By decision dated December 20, 2013, OWCP denied reconsideration.5
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.7 To be entitled to a merit review of an OWCP decision denying or
5

The Board notes that, following the December 20, 2013 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
6

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
7

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

3

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.8 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.9
ANALYSIS
On August 22, 2013 appellant requested reconsideration. The underlying issue is
whether he sustained a recurrence of disability due to his accepted neck sprain, lumbar sprain
and rib sprain and a consequential injury of anxiety disorder with mixed anxiety and depressed
mood. In support of his request, appellant submitted factual and medical evidence including his
statements, treatment notes from Drs. Sims and Tracy and an August 1, 2013 arbitration decision
regarding his August 17, 2012 removal from employment.
The Board finds that the August 1, 2013 arbitration decision is relevant to the issue of
whether appellant’s disability was causally related to his accepted conditions as it discussed
administrative error. Mr. Duncan found that appellant had an accepted medical condition which
impacted his ability to perform his work. He stated that appellant’s return to work was
conditioned on appellant providing acceptable medical documentation regarding the resolution of
his medical issues. These findings by Mr. Duncan raise the issue of whether appellant’s
recurrence of disability was due to an accepted employment condition and was not due to a new
injury or new factor of employment as found by OWCP. As the claim for a recurrence of
disability was denied on the grounds that the disability was due to a new employment factor and
not to appellant’s accepted conditions, the August 1, 2013 arbitration decision constitutes
pertinent new evidence relevant to the basis for OWCP’s December 13, 2013 denial of his claim
for a recurrence of disability.
Accordingly, the Board finds that the August 1, 2013 arbitration decision constitutes
pertinent new and relevant evidence not previously considered by OWCP.10 Appellant has met
one of the requirements of 20 C.F.R. §§ 10.606(b)(3) and therefore he is entitled to a review of
the merits of his claim. The case will be remanded to OWCP for any necessary further
development, to be followed by a merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128.

8

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

9

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
10

Id. at § 10.606(b)(3).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2013 is set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: October 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD TITLE 32,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 16-0220
Issued: March 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 17, 2015 appellant filed a timely appeal from a July 10, 2015 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.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the applicable
time limitation provisions of FECA.

1

The Board notes that appellant submitted additional evidence after the July 10, 2015 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision and
therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 47
ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2014 appellant, then a 71-year-old retired aircraft mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on August 9, 1984, while he was working, he
hit his head on the KC-135 wheel well while all four engines were running. He stated that his
hearing protection was knocked off his head and the collision caused him to cut his left eyelid,
the bridge of his nose, and his forehead requiring him to get stitches at the hospital. On the
reverse side of the form, appellant’s supervisor indicated that he was first notified of the incident
on August 9, 1984 and appellant sought emergency medical treatment that same date. He
checked the box marked “yes” when asked if his knowledge about the facts of injury agreed with
appellant’s statements. Appellant’s supervisor also checked the box marked “yes” when asked
was appellant “in the performance of duty?”
By letter dated June 9, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It informed him of the medical and factual evidence needed
and also advised him that the evidence was not sufficient to show that he timely filed his claim.
OWCP requested that appellant submit such evidence within 30 days.
By letter dated February 1, 2015, appellant reported that he had retired from the
employing establishment in 1995 as a general aircraft mechanic. He stated that working in the
field caused him to progressively lose his hearing ability. Appellant discussed the 1984 accident
when he hit his head on the KC-135 wheel well while all four engines were running. This
knocked his hearing protection off his head and he was lying on the ground with no hearing
protection for 5 to 10 minutes. Appellant was transported to the emergency room where he
received stitches for his eyelid, nose, and forehead. Directly after the incident, he experienced
high pitch sounds in his ears, difficulty hearing, and difficulty understanding the spoken word.
Appellant thought the problem would go away but it continued to worsen. He requested hearing
aids as a result of his hearing loss.
By decision dated July 10, 2015, OWCP denied appellant’s claim on the grounds that it
was not timely filed. It found no evidence that the claim had been filed within three years of the
injury date or that his immediate supervisor had actual knowledge of his injury within 30 days of
the injury date.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.4 Compensation

3

C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 (2004); Mitchell Murray, 53 ECAB 601 (2002).

4

W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB
515 (2001).

2

for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless -(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified in section 8119 was given within
30 days.5
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death, be given to the immediate supervisor or the employee by personal
delivery or by depositing it in the mail properly stamped and addressed, be in writing, state the
name and address of the employee, state the year, month, day, and hour when and the particular
locality where the injury or death occurred, state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause, and be signed by and contain the
address of the person giving the notice.6 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.8
When a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his injury.9 The Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.10 Section 8122(b) of
FECA provides that the time for filing in latent disability cases 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.11

5

5 U.S.C. § 8122(a). See J.M., Docket No. 09-1563 (issued February 26, 2010); J.P., 59 ECAB 178 (2007);
Cory W. Davis, 57 ECAB 674 (2006).
6

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, supra note 4.

8

Delmont L. Thompson, 51 ECAB 155 (1999).

9

Emma L. Brooks, 37 ECAB 407 (1986).

10

Supra note 8.

11

5 U.S.C. § 8122(b).

3

ANALYSIS
Appellant did not file his traumatic injury claim until December 22, 2014, almost 30
years after the August 9, 1984 incident. Therefore, his claim was filed outside the three-year
time limitation period which ended August 9, 1987.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior or another employing establishment official had actual knowledge of the
injury within 30 days of the date of injury.12 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.13 There is no
supporting evidence that appellant’s immediate superior or another employing establishment
official had actual or written knowledge of the August 9, 1984 hearing loss injury within 30 days
of the date of injury. On the reverse side of appellant’s Form CA-1, his supervisor indicated that
he was notified of the employment incident on August 9, 1984 and appellant received emergency
medical attention. On his Form CA-1, appellant noted that he sustained an injury to his left
eyelid, bridge of his nose, and forehead which required him to get stitches. However, his
February 1, 2015 narrative report indicates that his hearing loss did not occur until after the
employment incident and progressively worsened over time. Thus, the evidence submitted does
not substantiate an immediate supervisor’s knowledge that appellant sustained work-related
hearing loss injury within 30 days of the injury.14 Knowledge merely of an employee’s illness is
not sufficient to establish actual knowledge and timeliness; it must be shown that the
circumstances were such as to put the supervisor on notice that the alleged injury was actually
related to the employment or that the employee attributed it thereto.15
The Board finds that appellant has not established actual knowledge by his supervisors of
a work-related hearing loss within 30 days of the incident and, therefore, has not established a
timely claim.16 The record is void of any indication that his immediate supervisor had written
notice of his work-related hearing loss injury within 30 days. This exception to the statute has
not been met and, thus, appellant has failed to establish that he filed a timely claim.

12

Larry E. Young, supra note 6. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3
(March 1993).
13

Kathryn A. Bernal, 38 ECAB 479 (1987).

14

See Linda J. Reeves, 48 ECAB 373 (1997) (where the Board held that while appellant submitted a statement
from a former supervisor that established that he had some knowledge of appellant’s complaints, this statement was
not sufficient to establish that her immediate supervisor had actual knowledge of a work-related injury as the
statement only made a vague reference to appellant’s health and did not indicate that she sustained any specific
employment-related injury such that the knowledge would put the immediate supervisor reasonably on notice of an
on-the-job injury or death).
15

See id.; Roseanne S. Allexenberg, 47 ECAB 498 (1996) (where the Board held that knowledge of an
employee’s illness is not sufficient to establish actual knowledge and timeliness of a claim. It must be shown that
the circumstances were such as to put the supervisor on notice that the alleged injury was actually related to the
employment or that the employee attributed it thereto.
16

D.J., Docket No. 14-1397 (issued November 14, 2014).

4

While appellant’s statement suggests that he first became aware of his hearing loss at
some point after the August 9, 1984 injury, he has not provided sufficient evidence to establish
that this is a latent injury claim. When an employee becomes aware or reasonably should have
been aware that he has a condition which has been adversely affected by factors of his
employment, such awareness is competent to start the limitation period even though he does not
know the nature of the impairment or whether the ultimate result of such affect would be
temporary or permanent.17 Appellant has not identified the date that he became aware of his
hearing loss, and has not submitted supporting medical evidence to establish a latent condition.
For example, in prior cases the Board has noted that appellant should have been aware of a latent
hearing loss as of the date of an audiogram.18
Consequently, appellant has not met his burden of proof as he has not established that he
filed a timely notice of traumatic injury and claim for compensation under the applicable time
limitation provisions of FECA.19
To the extent that the February 1, 2015 letter to OWCP could suggest that he continued to
be exposed to hazardous noise due to his federal employment until his retirement in 1995, the
Board has held, if the employee continues in the same employment, the time limitation begins to
run on the date of his last exposure to the implicated factors. Appellant’s last date of exposure to
any work factors would have been his retirement date of 1995. This also was not within three
years of the December 14, 2014 claim.20 Appellant has therefore not filed a timely claim for
compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to file a claim for compensation within the
applicable time limitation provisions of FECA.

17

Larry E. Young, supra note 6; see also W.A., Docket No. 14-1199 (issued December 19, 2014); 5 U.S.C.
§ 8122(b).
18

See C.G., Docket No 08-1634 (issued January 9, 2009).

19

L.S., Docket No. 15-132 (issued April 3, 2015).

20

See Larry E. Young, supra note 6; W.A., supra note 17.

5

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6