United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Linthicum, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-145
Issued: March 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 28, 2011 appellant, through his attorney, filed a timely appeal from a July 29,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on October 19, 2010 in the
performance of duty.
FACTUAL HISTORY
On November 29, 2010 appellant, then a 41-year-old transportation security inspector,
filed a traumatic injury claim alleging that on October 19, 2010 he broke his right tibia in the
performance of duty. He related that he was injured while on travel to Pueblo, Colorado.
1

5 U.S.C. § 8101 et seq.

Appellant stopped work on October 21, 2010. The employing establishment controverted the
claim, indicating that he was off duty at a hotel lounge at the time of the injury and had been
drinking alcohol “when he became involved in an altercation with another individual.”
In a statement dated December 23, 2010, appellant related that on October 19, 2010 he
attended training classes in Pueblo, Colorado from 7:00 a.m. until 3:00 p.m. At 5:30 p.m. he
went across the street from his hotel to the Marriott hotel for a reception. Appellant related that
he drank four to five beers over the course of a few hours and could tell from his training as a
police officer that he was not intoxicated. He stated, “This was an informal gathering that
included both instructors and course attendees and was certainly business related.” Appellant ate
dinner around 7:00 p.m. and at 8:45 p.m. was talking with his colleagues. He stated:
“At that time, I felt someone touch the lower left side of my back, near my
kidney. I was touched from behind by a fireman who wanted me to agree with
him on an unknown issue and shake his hand. I did not recognize the subject or
understand what he was talking about. I felt the fireman was intoxicated and up
to some type of joke or prank, because his associates were snickering. I told him
that I did not know him or know what he was talking about and turned around.
Again the fireman wanted me to agree with him and shake his hand. Again I told
him that I did not know him. He stated you are a ‘Dick!’ I tried to downplay the
situation stating, I am sorry that is just the way things are. He made another
comment and again I tried to downplay the situation stating, that is just too bad.
At that point he stated, ‘Let’s settle things outside,’ and he stood up. I
instinctively stood up, as I felt threatened, but I had no intention to fight, putting
my position and or agency’s reputation at stake. After I stood up, the male
quickly punched me two times in the face.”
Appellant threw a counterpunch but another individual pushed him down from behind,
injuring his leg and bruising his arm.2
By decision dated January 5, 2011, OWCP denied appellant’s claim on the grounds that
he was not in the performance of duty at the time of the altercation on October 19, 2010. It
determined that the injury arose due to a personal argument that was unrelated to the
performance of his work duties.
In a statement received January 6, 2011, Daniel L. Crews, a surface transportation
security inspector, related that he saw a firefighter try to shake appellant’s hand but appellant
refused. Both men stood up and appellant “chest bumped the firefighter and the two men
exchanged blows. The firefighter threw the first punch.”
In a police report dated October 19, 2010, an officer noted that both appellant and Jeremy
Davis alleged that the other man initiated the altercation. Mr. Davis maintained that he tried to
introduce himself to appellant and appellant grew angry. Appellant indicated that Mr. Davis
“was mouthing off toward him, then swung on him as both were standing up at [the] same time.”
2

Appellant submitted a sworn statement to the employing establishment describing the events of
October 19, 2010.

2

A few customers at the bar related that appellant began the fight by “standing up and ‘chest
bumping’ [Mr. Davis] into a column.”
In an e-mail dated October 20, 2010, received by OWCP on January 6, 2011, appellant
again described the October 19, 2010 altercation. He related that he refused to shake the
fireman’s hand as he believed that it was a joke. The fireman told him that they should go
outside to “settle things.” Appellant indicated that he stood up to protect himself and was hit
twice in the face.
In an October 21, 2010 witness statement, a Christopher M. Huerta related that he
attended the reception held at the Marriott for individuals in the training program. The reception
ended about an hour prior to the altercation. A group of firefighters seemed intoxicated. One
firefighter was talking to appellant. Mr. Huerta stated:
“The firefighter was standing and with at least five other firefighter[s] when
talking to [appellant] and I had noticed that he seemed agitated. I could not hear
the conversation, though it was clear to me that [appellant], who was seated, was
not trying to engage the firefighter. I turned away to talk with my colleagues, and
then turned back to watch the game again on the big screen, when I noticed the
firefighter had moved closer to [appellant]. I saw the firefighter say something,
[appellant] shook his head as if to say no, and then the firefighter spoke again
loudly, though it was slurred and the bar was loud and again I did not understand.
Right after that, [appellant] stood up and was immediately hit by the firefighter.”
Mr. Huerta indicated that his statement was true, that he did not know the names of either
appellant or the firefighter, and was “aware of [appellant] due to the fact that he was in a class at
the same site as me, but not in my class and I have never met or spoke[n] with him….”
In a December 20, 2010 e-mail message apparently from Mr. Davis, he informed Charles
Stone that appellant gave him a negative look when he spoke to a woman at the next table.
Mr. Davis tried to shake appellant’s hand but appellant refused to shake hands and swore at him.
Appellant told him that they could move outside and appellant threw a punch at him when they
both stood up and he returned in kind.
On December 30, 2010 the employing establishment related that the hotel where the
altercation occurred was one-tenth of a mile from appellant’s hotel. It stated, “On October 19,
2010 after class had ended, a few of the students met at the Marriott hotel at 5:30 p.m. as the
hotel was serving free beer and barbeque sandwiches. [Appellant] was meeting with fellow
inspectors and surface training personnel.” The employing establishment summarized the police
report and statements from appellant and Mr. Davis.
On January 1, 2011 appellant requested an oral hearing before an OWCP hearing
representative. On May 17, 2011 his attorney described the events of October 19, 2010.
Counsel argued that appellant was in the performance of duty as he was in the location where the
incident occurred to meet his coworkers “for dinner and to engage in discussion about training
and work….” He further asserted that consuming alcohol did not remove him from the
performance of duty absent an affirmative defense of intoxication or engaging in a personal

3

deviation. Counsel maintained that the injury occurred during the course of employment as the
employing establishment facilitated “the assault by causing the participants of the assault to
come together in one place at the host hotel where free beer was served.” He noted that the
assault was not imported into the workplace as appellant did not know his assailant.
At the hearing, held on May 17, 2011, appellant related that the Marriott was the host
hotel for the training. He again described the events of October 19, 2010. Appellant related that
the man hit him twice in the back, stood over him and asked him to go outside. He stated, “I [did
not] like the way -- being a police officer he [has] kind of got an advantage over me standing up
over top of me and just kind of instinctively I stood up and I was like -- then he hit me twice,
punched me twice in the face.” Appellant denied ever meeting the man before or taking any
courses with him. He related that his injury occurred around 7:30 or 7:45 p.m. and that he had
arrived at the location around 5:30 p.m. Appellant ate dinner where he was sitting and visiting
with coworkers around 6:00 p.m. It was not a formal event sponsored by the employing
establishment but a reception hosted by Marriott for all guests. Appellant went there to meet
colleagues.
By decision dated July 29, 2011, the hearing representative affirmed the January 5, 2011
decision. She found that appellant was in the performance of duty when he met his colleagues
for dinner at the Marriott hotel and that his moderate alcohol consumption did not remove him
from the performance of duty. The hearing representative further found that the altercation was
not imported into the workplace. She determined, however, that appellant deviated from
employment when he stood up after the other man challenged him as it “resulted in an escalation
of the argument into physical violence.”
On appeal appellant’s attorney argues that appellant responded to being threatened by
standing up in accordance with his police training. Counsel argued that assuming a defensive
posture was insufficient to remove him from the performance of duty. He noted that the Board
had found FECA provided coverage even to a claimant who was with the aggressor in an
altercation, citing Leslie C. Moore.3
LEGAL PRECEDENT
The Board has recognized that Larson, in his treatise, The Law of Workers’
Compensation, sets forth the general criteria for performance of duty as it relates to travel
employees or employees on temporary-duty assignments as follows:
“Employees whose work entails travel away from the employer’s premises are
held in the majority of jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal errand
is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating
in restaurants away from home are usually held compensable.4”
3

52 ECAB 132 (2000).

4

A. Larson, The Law of Workers’ Compensation, § 25.01 (2009); see also Susan A. Filkins, 57 ECAB
630 (2006); Lawrence J. Kolodzi, 44 ECAB 818 (1993).

4

An employee whose work entails travel away from the employer’s premises is held to be
within the course of his or her employment continuously during the trip, except when a distinct
departure on a personal errand is shown.5 To determine whether an injury occurs in a place
where the employee may reasonably be or constitutes a deviation from 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 represents such a departure from the
work assignment that the employee becomes engaged in personal activities unrelated to his or
her employment. The standard to be used in determining that an employee has deviated from his
or her employment requires a showing that the deviation was “aimed at reaching some specific
personal objective.”6 The Board has recognized that there are limitations to coverage or
employees in travel status. When the employee deviates from the normal incidents of his or her
trip and engages in activities, personal or otherwise, which are not reasonably incidental to the
duties of the temporary assignment contemplated by the employer, the employee ceases to be
under the protection of FECA and any injury occurring during these deviations is not
compensable.7
ANALYSIS
Appellant alleged that he broke his right tibia on October 19, 2010 while on travel to
attend training. OWCP denied his claim after finding that he had deviated from his employment
at the time of his injury. The issue is thus whether the injury occurred in the performance of
duty.
The employing establishment authorized appellant’s travel to attend a training program.
Appellant attended training classes from 7:00 a.m. to 3:00 p.m. At 5:30 p.m. on October 19,
2010 he went to the Marriott hotel, the host hotel for the individuals attending the training
program. The hotel was located across the street from his hotel, approximately one-tenth of a
mile away. Appellant asserted that he attended a reception that included instructors and fellow
trainees and was “certainly business related.” Further he asserted that he ate dinner and had four
to five beers over the course of a few hours. Around 8:45 p.m. Mr. Davis, a man that appellant
did not know, touched him from behind and asked him to shake his hand. Appellant declined,
believing Mr. Davis to be intoxicated, but Mr. Davis persisted in trying to get him to shake his
hand. He alleged that Mr. Davis suggested that he and appellant take things outside and when
appellant got up Mr. Davis punched him twice in the face. Appellant struck back but another
person forced him to the ground, breaking his leg.
Mr. Davis, in contrast, maintained that appellant gave him a negative look and swore at
him when Mr. Davis tried to speak with a woman at the table. He related that appellant told him
that they could move outside and then appellant tried to punch him when they stood up.

5

See Ann P. Drennan, 47 ECAB 750 (1996); Richard Michael Landry, 39 ECAB 232 (1987) and cases cited
therein.
6

See Thomas E. Keplinger, 46 ECAB 699 (1995); Dannie G. Frezzell, 40 ECAB 1291 (1989).

7

See Jose H. Pico, 46 ECAB 750 (1995); Evelyn S. Ibarra, 45 ECAB 840 (1994).

5

An October 19, 2010 police report indicated that both appellant and Mr. Davis identified
the other as the aggressor and that witnesses (customers in the bar) related that appellant started
the fight by chest bumping Mr. Davis into a column. Another witness, a Mr. Crews, related that
Mr. Davis wanted to shake hands but appellant declined. Appellant then chest bumped
Mr. Davis, who then threw a punch.
As discussed, FECA covers an employee 24 hours a day when the employee is on travel
status and is engaged in activities essential or incidental to such duties. Thus, injuries arising out
of the necessity of sleeping in hotels and eating in restaurants away from home are usually held
compensable.8 OWCP did not dispute that appellant was in the performance of duty while sitting
with his fellow trainees and instructors in the Marriott hotel after eating dinner. It further found
that he remained in the course of employment when he stayed after the reception to talk and have
a couple of drinks with other students and instructors. OWCP determined, however, that
appellant deviated from employment when he stood up after being confronted by Mr. Davis.
The Board finds that the weight of the evidence establishes that appellant initiated the
physical confrontation with Mr. Davis. In particular, the police report constitutes credible and
probative evidence that appellant began the fight by chest bumping Mr. Davis into a column.
The Board further finds that appellant removed himself from the coverage of FECA when
he began the altercation. An employee on travel away from his normal post of duty is extended
coverage under FECA for all ordinary incidents which the employer would normally
contemplate as occurring in the course of such mission.9 The broad coverage under FECA
enjoyed by an employee in travel status comes with the requisite responsibility that the employee
act in a manner envisioned by the employing establishment as its representative. In starting a
physical confrontation with Mr. Davis, appellant engaged in an activity not reasonably expected
or contemplated by the employer and thus removed himself from coverage of FECA.10
Consequently, the Board finds that appellant has not met his burden of proof to establish that he
was in the performance of duty at the time of the October 19, 2010 altercation.
On appeal appellant’s attorney argues that he acted in a defensive manner in accordance
with his police training. As discussed, however, the Board finds that appellant initiated the
altercation by chest bumping Mr. Davis. The nature of the activity in which he engaged removed
him from coverage under FECA.
Counsel also argues, citing Leslie C. Moore,11 that FECA provides coverage to
aggressors in altercations. The Board distinguishes this case. In Moore the claimant alleged that
he sustained a stress-related condition after an assault in the parking lot of the employing
8

See Jimmy Zenny, 54 E CAB 577 (2003); Kenneth B. Briggs, 54 ECAB 411 (2003).

9

See A.W., 59 ECAB 593 (2008); Lawrence J. Kolodzi, supra note 4.

10

See Donald R. Ford, 56 ECAB 577 (2005) (where the Board found that appellant trying to free a bird entangled
in a net while he was on TDY was not an activity reasonably incidental to his work duties or an activity
contemplated by the employer and thus outside the protection of FECA).
11

See supra note 3.

6

establishment. The Board found that, while the assault arose because of the claimant’s
inappropriate comments to a coworker, FECA does not exclude coverage because an employee
either acts as an aggressor or otherwise engages in an action imputing culpability or fault. The
Board determined that the assault arose on the premises from a work-related dispute which
occurred while the claimant was performing his work duties and was, consequently,
compensable. In the present case, however, appellant was not on the premises of the employing
establishment but instead on travel as a representative of the employing establishment and the
altercation was not premised on a work-related matter.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not sustain an injury in the performance of duty on
October 19, 2010.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER US PAC FLEET-SHIPYARDS,
Bremerton, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1858
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On August 6, 2013 appellant filed a timely appeal from the April 4, 2013 hearing loss
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an employment-related hearing loss causally
related to factors of his federal employment.
FACTUAL HISTORY
On November 6, 2012 appellant, then a 54-year-old welder, filed an occupational disease
claim alleging permanent hearing loss which he attributed to loud noise at work. He first became

1

5 U.S.C. § 8101 et seq.

aware of his condition on September 15, 2011 and realized that it was caused or aggravated by
his employment on that date. Appellant did not stop work.
By letters dated December 4, 2012, OWCP advised appellant and the employing
establishment that additional factual and medical evidence was needed. It allotted him 30 days
within which to submit the requested information.
In a December 6, 2012 response, appellant explained that he had no prior claims for a
hearing or ear condition, no previous ear or hearing problems and no hobbies involving noise
exposure. The employing establishment provided additional evidence which included his
employment history and audiograms dated April 21, 1997 to October 11, 2012. The employment
history revealed that appellant worked for the employing establishment since 1996 as a welder,
with noise exposure to bay flex grinders, welders, sandblasters, chipping guns, diesel motors and
cranes for eight hours a day with hearing protection. Appellant was also exposed to noise in
private industry in the construction field and as a welder in the military.
In a November 13, 2012 second opinion report, Dr. Gerald G. Randolph, a Boardcertified otolaryngologist to whom appellant was referred by the employing establishment,
reviewed appellant’s history of injury and treatment. Appellant noticed hearing loss during the
past five years but did not have tinnitus or vertigo. Dr. Randolph advised that appellant did not
have a history of ear infection; however, he might have had a skull fracture when he was nine
years old. Appellant was not hospitalized, no surgery was performed and it did not cause
apparent hearing loss. Dr. Randolph noted that appellant did not use hearing aids. On
examination, the external auditory canals and tympanic membranes were normal. Dr. Randolph
advised that the air conduction was greater than bone conduction bilaterally. He noted that
audiometrics were performed by an audiologist and the findings revealed a bilateral high
frequency sensorineural hearing loss with speech reception thresholds of 15 decibels in both ears.
Dr. Randolph determined that discrimination scores were measured at 88 percent in the right ear
and 96 percent in the left ear when measured in noise. He diagnosed sensorineural hearing loss
and noted that the audiologist was unable to get a tympanograms due to the lack of seal.
Appellant’s audiogram revealed hearing loss with an audiometric configuration compatible with
past noise exposure. Dr. Randolph utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2008) (A.M.A., Guides) to determine that
appellant did not have a ratable hearing loss in either ear. He noted that appellant was a
candidate for bilateral hearing aids. Appellant’s industrial audiograms revealed that the hearing
loss increased in severity, particularly in the right ear, in a manner consistent with hearing loss
aggravated by noise exposure. Dr. Randolph explained that the hearing loss in the left ear had
not progressed in severity any more than that which would be expected on the basis of
presbycusis since April 21, 1997. November 6, 2012 audiological findings accompanied the
report.
By letter dated February 11, 2013, OWCP provided Dr. Randolph a statement of accepted
facts, its requirements for evaluating hearing loss and asked that he provide additional
information regarding the cause and extent of appellant’s hearing loss.
In a February 25, 2013 addendum, Dr. Randolph noted that he did not vary from the
statement of accepted facts. The earliest audiogram in appellant’s record was dated

2

April 21, 1997 and revealed bilateral sensorineural hearing loss ratable at zero percent in both
ears utilizing the A.M.A., Guides. Dr. Randolph explained that between the audiogram
performed on April 21, 1997 and her audiogram of November 6, 2012, there was a very slight
increase in hearing loss in those frequencies affected by noise. The increase in appellant’s
hearing loss was no greater than that which would be expected on the basis of presbycusis.
Dr. Randolph stated that “the workplace exposure as described in the material provided was of
sufficient intensity to have caused and or aggravated appellant’s hearing loss if ear protection
had been inadequately utilized.” He did not find any significant contributing factors to
appellant’s hearing loss other than the aging process and no conductive component was present.
Dr. Randolph listed examination findings and stated that there was no indication of any medical
condition such as acoustic neuroma or Meniere’s disease. He opined that the hearing loss had an
audiometric configuration compatible due to hearing loss due to noise exposure. Dr. Randolph
explained that the sensorineural hearing loss was “not due to noise exposure encountered” in
appellant’s employment as “the hearing loss increased no greater than that which would be
expected on the basis of presbycusis during that employment.” He completed a form report
indicating that appellant’s hearing loss was not due to workplace noise exposure.
By decision dated April 4, 2013, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that the claimed hearing loss was employment related.
OWCP noted that Dr. Randolph determined that appellant’s hearing loss was not due to noise
exposure in his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

3

diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.4
ANALYSIS
It is not disputed that appellant was exposed to work-related noise while working as a
welder at the employing establishment. The Board finds that the medical evidence of record
does not establish that his hearing loss is causally related to the accepted employment-related
noise exposure.
In a November 13, 2012 report, Dr. Randolph, a Board-certified otolaryngologist and
treating physician, noted appellant’s history of noise exposure and treatment. He stated that
audiometric testing was performed that revealed a bilateral high frequency sensorineural hearing
loss with an audiometric configuration compatible with hearing loss largely due to past noise
exposure but that was not ratable under the A.M.A., Guides. Dr. Randolph noted that appellant’s
industrial audiograms revealed that the hearing loss increased in severity, particularly in the right
ear, in a manner consistent with hearing loss aggravated by noise exposure. He explained that
the hearing loss in the left ear had not progressed in severity any more than that which would be
expected on the basis of presbycusis since April 21, 1997.
On February 11, 2013 OWCP provided Dr. Randolph with a statement of accepted facts
and requested a supplemental opinion on causal relation of appellant’s hearing loss. In a
February 25, 2013 addendum, Dr. Randolph explained that the earliest audiogram in appellant’s
record was dated April 21, 1997 and revealed a nonratable bilateral sensorineural hearing loss.
From April 21, 1997 to a November 6, 2012 audiogram, there was only a very slight increase in
hearing loss in those frequencies affected by noise. Dr. Randolph explained that the extent of
hearing loss was no greater than that which would be expected on the basis of presbycusis.
While the hearing loss had an audiometric configuration compatible with noise exposure, he
found that appellant’s sensorineural hearing loss was not due to noise exposure encountered
federal employment. Dr. Randolph explained that appellant’s hearing loss increased no greater
than that which would be expected on the basis of presbycusis during that employment.
The Board finds that the medical evidence does not support that appellant has any hearing
loss causally related to the accepted employment-related noise exposure. Dr. Randolph
examined appellant, reviewed audiological records and opined that appellant’s hearing loss was
not due to workplace noise exposure. He explained that appellant’s audiograms had not changed
much since April 1997 and that the changes were observed consistent with the aging process of
presbycusis. There is no other medical evidence to support that appellant’s hearing loss is
employment related. Dr. Randolph has not established that his hearing loss is causally related to
employment factors.

4

Id.

4

On appeal, appellant contends that his hearing loss was causally related to workplace
noise exposure. As noted, the medical evidence from Dr. Randolph does not support this
contention. The Board notes that appellant may submit evidence or argument with a written
request for reconsideration within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an employmentrelated hearing loss in the performance of duty, causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WESTOVER AIR FORCE BASE,
Chicopee, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-2001
Issued: November 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 17, 2014 appellant filed a timely appeal from a July 9, 2014 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.
ISSUES
The issues are: (1) whether appellant received a $5,420.74 overpayment of compensation
for the period November 1, 2008 through October 19, 2013, for which he was not at fault;
(2) whether the overpayment is subject to waiver of recovery; and (3) whether OWCP properly
withheld $150.00 from appellant’s continuing compensation payments.
1

Appellant filed a prior appeal with the Board on April 28, 2005, docketed as 05-1145. On July 22, 2005 the
Board issued an order asking the Director to produce the case record. The Board has not issued a final decision or
order under Docket No. 05-1145.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 27, 1992 appellant, then a 34-year-old aircraft
pneudraulic systems mechanic, sustained a back strain, L3-4 and L4-5 disc herniations and
thoracolumbar radiculitis when he fell at work. It later expanded the claim to accept lumbar
spina bifida with hydrocephalus, an open vertebral fracture, and herniated C4-5, C5-6, and T8-9
and T9-10 discs.3
Appellant received wage-loss compensation in late 1992, for a recurrence of disability in
1994, from August 15, 1999 to April 3, 2000, and from November 23, 2003 to June 27, 2005.
He stopped work again on August 22, 2005 and received wage-loss compensation for total
disability from December 25, 2005 onward. OWCP did not deduct health or life insurance
premiums from appellant’s wage-loss compensation.
Appellant retired from the employing establishment effective March 24, 2008. He
initially elected to receive retirement benefits through the Office of Personnel Management
(OPM). The notification of personnel action indicated that appellant was “excluded from life
insurance coverage by law or reg[ulation].” Appellant then elected to receive compensation
benefits under FECA effective October 25, 2008. OWCP did not deduct health or life insurance
premiums from his compensation payments.
In a letter dated March 18, 2009, the OPM advised OWCP that appellant had elected
Federal Employees’ Group Life Insurance (FEGLI) and that there had been no reduction for
postretirement life insurance election, which commenced November 1, 2008. Deduction was to
be made using code BO, effective November 1, 2008, for basic life insurance and no reduction
postretirement life insurance.
In an October 24, 2013 worksheet, OWCP calculated that, for the period November 1,
2008 through October 19, 2013, appellant received gross compensation of $185,442.24, based on
his final salary in his date-of-injury position of $33,700.00. It found that it should have deducted
$699.69 in basic life insurance and $4,721.05 in postretirement basic life insurance premiums, a
total of $5,420.74. As OWCP had not deducted the premiums, it found that the $5,420.74
amount constituted an overpayment of compensation for the period November 1, 2008 to
October 19, 2013.
By notice dated February 6, 2014, OWCP advised appellant of its preliminary
determination that he had received a $5,420.74 overpayment of compensation because basic life
insurance premiums had not been properly deducted from his compensation payments for that
3

Appellant had L3-4 and L4-5 microdiscectomies on March 1, 1993, a repeat L4-5 microdiscectomy on
September 20, 1994, repeat L3-4 and L4-5 microdiscectomies and an L3-5 posterior lumbar fusion on August 17,
1999, exploration of the L3-5 fusion and L2-3 posterior decompression and fusion on May 28, 2004, and repairs of a
postsurgical L2-3 pseudomeningiocele on September 10, 2004 and October 5, 2005. On August 22, 1996 OWCP
issued a schedule award for six percent impairment of the left leg. On December 8, 2005 it issued a schedule award
for nine percent impairment of each leg, covering the period February 20, 2005 to February 16, 2006. OWCP issued
a January 14, 2009 decision adjusting the period of the 2005 schedule award to avoid overlapping a period of
compensation, but vacated this decision on June 4, 2009, finding that no adjustment was necessary. By decision
dated December 24, 2009, it denied appellant’s request for reconsideration of the June 4, 2009 decision.

2

period. It provided a calculation of the overpayment, noting that he was not at fault in its
creation. OWCP requested that appellant provide financial information within 30 days or
indicate if he contested the overpayment.
Appellant requested that OWCP make a decision based on the written evidence. He
asserted that he had not previously elected life insurance as the employing establishment’s
personnel office advised him that he was ineligible as he had not been insured for five
continuous years prior to becoming permanently disabled. Appellant completed an overpayment
recovery questionnaire with supporting documentation on February 22, 2014, listing monthly
income of $5,000.00 and total monthly expenses of $3,367.10, including a $1,100.00 mortgage
payment, $500.00 for food, $400.00 for utilities, $200.00 for clothing, $600.00 for vehicular and
miscellaneous expenses, and $567.10 for debt repayment. He listed assets of $270.00 in cash
and bank accounts.
By decision dated July 9, 2014, OWCP finalized that appellant had received an
overpayment of compensation in the amount of $5,420.74 for the period November 1, 2008
through October 19, 2013 as no basic life and postretirement life insurance premiums had been
properly deducted from his compensation payments. It found that he was not at fault in the
creation of the overpayment but that the overpayment was not subject to waiver as his income
exceeded his monthly expenses by $1,632.90.4 OWCP directed recovery by deducting $150.00
every 28 days from his continuing compensation payments. It noted that appellant had not
submitted any evidence from the employing establishment substantiating his allegation that its
personnel office had advised him he was ineligible for life insurance.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance and one or more of the options.5 The coverage for
basic life insurance is effective unless waived,6 and premiums for basic and optional life
coverage are withheld from the employee’s pay.7 Upon retirement or upon separation from the
employing establishment or being placed on the periodic FECA compensation rolls, an employee
may choose to continue basic and optional life insurance coverage, in which case the schedule of
deductions made will be used to withhold premiums from his or her annuity or compensation
payments.8 Basic insurance coverage shall be continued without cost to an employee who retired
or began receiving compensation on or before December 31, 1989,9 however, the employee is

4

OWCP accepted all expenses appellant listed, and accepted the $600.00 vehicular and miscellaneous amount as
stated.
5

5 U.S.C. § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8706.

9

Id. at § 8707(b)(2).

3

responsible for payment of premiums for optional life insurance coverage which is accomplished
by authorizing withholdings from his compensation.10
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his compensation, so that
his life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage
subject to continuous withholdings from compensation payments with no reductions after age 65
(at a greater premium).11
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.12 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated
by OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.13 When an underwithholding of life insurance
premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM upon discovery of the error.14
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.15
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.16

10

Id. at 8706(b)(3)(B). See Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that the claimant received
an overpayment of compensation where he elected postretirement basic life insurance with no reduction and no
premiums had been deducted from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox,
42 ECAB 703 (1991) (the Board found that an overpayment was created due to no deduction of premiums for
optional life insurance for periods July 1983 through November 1989).
11

See James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

12

5 C.F.R. § 870.504(a)(1).

13

Id. at 504(b).

14

5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

15

Id. at § 8102(a).

16

Id. at § 8129 (a).

4

ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation in the amount of $5,420.74 for the period
November 1, 2008 through October 19, 2013
Appellant elected to receive compensation benefits from OWCP instead of retirement
benefits from OPM effective October 25, 2008. While in compensationer status, appellant
remained responsible for all insurance benefits, including the premiums for postretirement basic
life insurance at whatever option appellant had selected.17 He maintained, however, that he did
not elect life insurance after he retired as the employing establishment advised him he was not
eligible for coverage. The record does not contain any documentation reflecting appellant’s
election of the optional postretirement basic life insurance. While OPM notified OWCP by letter
dated March 18, 2009, that appellant had elected that option, it did not provide documentation of
that election. OWCP procedures state that the preliminary notice of overpayment must clearly
set forth the reason for the overpayment and contain a clearly written explanation as to how the
overpayment was calculated.18 In this case, OWCP simply relied on a statement from OPM and
placed the burden on appellant to disprove the fact of the overpayment. A claimant is entitled to
an adequate statement of reasons with respect to any final decision by OWCP.19
In N.J.,20 the Board remanded the case to OWCP for further development because the
evidence was unclear as to why postretirement optional life insurance premiums had been
deducted as of a certain date. Similarly in this case the evidence fails to establish the basis for
the optional postretirement life insurance premiums for the no reduction option as the signed
form is not in the record.
Appellant would be responsible for the additional cost associated with his election of the
optional postretirement basic life insurance. However, as OWCP has not factually established
that appellant elected the optional coverage, there can be no finding of overpayment. The case
will be remanded to OWCP.21 On remand, OWCP should obtain from OPM the executed
election form completed by appellant prior to determining whether appellant received an
overpayment of compensation. After such further development as OWCP deems necessary, it
should issue a de novo decision.
17

See supra note 14.

18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(June 2009).
19

J.L., Docket No. 14-0194 (issued June 25, 2015). See also L.D., Docket No. 12-1408 (issued April 26, 2013)
(finding that OWCP did not provide adequate reasons for calculating an overpayment when the record contained no
worksheets or other specific documentation confirming the amount of compensation received).
20

Docket No. 13-2164 (issued April 18, 2014).

21

See generally id. (finding that the information from OPM did not sufficiently establish the date that a
claimant’s deductions for postretirement basic life began); D.R., Docket No. 13-1531 (issued October 21, 2013)
(finding that OWCP improperly found that a claimant received dual benefits from OPM and OWCP when the record
did not contain clear documentation establishing that he received benefits from OPM during the period in question).

5

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation in the amount of $5,420.74 for the period
November 1, 2008 through October 19, 2013 because it failed to deduct premiums for the
optional postretirement basic life insurance.22
ORDER
IT IS HEREBY ORDERED THAT the July 9, 2014 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: November 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

In view of the Board’s finding that the case is not in posture for decision regarding whether appellant received
an overpayment of compensation, it is premature to address the issues of waiver and recovery.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 19-0209
Issued: September 18, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 6, 2018 appellant, through counsel, filed a timely appeal from a
September 4, 2018 decision of the Office of Workers’ Compensation Programs (OWCP).2 The
Clerk of the Appellate Boards docketed the appeal as No. 19-0209.3

1

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

The Board notes that following the September 4, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.
3
During the pendency of this appeal, the Board issued a November 13, 2018 decision affirming OWCP’s
February 1, 2018 schedule award decision. The issue of a schedule award is therefore not presently before the Board.

By decision dated February 28, 2018, OWCP found that appellant had forfeited
compensation for the periods from February 21 through April 10, 2010 and May 15, 2010 through
November 4, 2016 as she knowingly failed to report self-employment activities and earnings on
EN1032 forms, which indicated that for the past 15 months she had not worked, was not selfemployed, and was not involved in a business enterprise, and on claims for compensation (Form
CA-7) for leave without pay. It noted that an investigation, initiated by the employing
establishment’s Office of the Inspector General (OIG) in 2016 regarding appellant’s employment
activities, revealed that she was self-employed at Pierce’s Precious Puppies, a dog breeding service
operated in her residence. On March 16, 2018 appellant, through counsel, requested a telephonic
hearing with a representative of the OWCP Branch of Hearings and Review.
OWCP made a preliminary determination finding that an overpayment of compensation in
the amount of $103,563.25 was created due to the forfeiture of compensation for the periods from
February 21 through April 10, 2010 and May 15, 2010 through November 4, 2016. It further
found that appellant was at fault in the creation of the overpayment because she knowingly failed
to report self-employment activities and earnings.
By decision dated September 4, 2018, an OWCP hearing representative affirmed the
February 28, 2018 forfeiture decision and finalized the preliminary determination regarding the
fact and amount of overpayment and found that appellant was with fault in the creation of the
overpayment in the amount of $103,563.25. In finding that a forfeiture and an overpayment of
compensation had occurred, the amount of the overpayment, and that appellant was at fault in
creating the overpayment, the hearing representative not only relied on the EN1032 and CA-7
forms signed by appellant, but also relied on the OIG investigative report. It was noted that, “The
OIG provided evidence dating back to 2008 documenting appellant’s activities and obtained
statements from the customers of the business. The decision stated that, “The OIG report is
incorporated herein by reference.” The hearing representative directed repayment of the
overpayment by deducting $400.00 every 28 days from appellant’s continuing compensation
payments. The hearing representative also directed OWCP to combine her claims in OWCP File
Nos. xxxxxxx047 and xxxxxx660.4
The Board finds that while a January 27, 2011 Form EN1049, which informed appellant of
her rights and responsibilities as a FECA benefits recipient, and appellant’s EN1032 and CA-7
forms were listed as exhibits in the OIG investigative report and contained in the record, not all of
the items listed as exhibits were transmitted to the Board. The Board, therefore, cannot verify the
factual basis for the findings as to the nature and extent of business activities as found by the
hearing representative in the September 4, 2018 decision.
OWCP’s procedures provide that all evidence that was before OWCP at the time it
rendered its decision should be in the case record before the Board.5 To consider appellant’s appeal

Following issuance of the hearing representative’s September 4, 2018 decision, OWCP administratively combined
OWCP File Nos. xxxxxx047 and xxxxxx660, with OWCP File No. xxxxxx660 serving as the master file.
4

5
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)
(June 2011).

2

in piecemeal fashion, as presented to the Board, could result in further inconsistent results.6 It is
the Board’s policy to avoid such an outcome.7
Accordingly, the case will be remanded to OWCP for reconstruction of the record,
including obtaining the exhibits listed in the OIG investigative report. Following reconstruction
of the record, OWCP shall issue a de novo decision on the merits of the claim.8 Accordingly,
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: September 18, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6

See C.J., Order Remanding Case, Docket No. 18-1202 (issued March 8, 2019); A.B., Docket No. 17-1480 (issued
June 8, 2018).
7

Id.; see also William T. McCracken, 33 ECAB 1197 (1982).

8

See C.J., supra note 5; G.R., Order Remanding Case, Docket No. 15-1047 (issued December 29, 2015).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2434
Issued: March 10, 2008

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 September 25, 2007 appellant timely appealed the August 29, 2007 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On April 25, 2007 appellant, a 40-year-old city carrier, filed an occupational disease
claim for a recurring rash on his face, lips, eyes, ears, neck and forearms. He identified April 16,
2007 as the date he first realized his condition was employment related. Other than noting that
the rash appeared during work hours, appellant did not identify any specific employment factors
that either caused or contributed to his skin condition.

On April 18, 2007 appellant was diagnosed with “allergic reaction dermatitis due to a
plant.” The physician subsequently explained that appellant had either plant-induced or suninduced dermatitis. On May 4, 2007 appellant was seen by another physician who diagnosed
contact dermatitis. However, when seen on July 13, 2007, the question arose again as to whether
appellant had contact dermatitis or sun-induced dermatitis.1
Dr. Matthew J. Zirwas, a Board-certified dermatologist, advised in a July 13, 2007 letter
that appellant would be undergoing treatment on July 19, 2007 and afterwards he would not be
permitted to work in areas of excessive heat for a period of five days.
In a decision dated July 20, 2007, the Office denied appellant’s claim because he failed to
establish that the diagnosed condition was employment related.
On July 25, 2007 appellant requested reconsideration. Additional information received
by the Office included an undated attending physician’s report (Form CA-20) from Dr. Zirwas
who diagnosed a rash of unspecified origin. He noted that, while the timing of the rash
implicated appellant’s job, he was still undergoing testing to determine the exact cause of the
rash.
In a report dated July 27, 2007, Dr. Zirwas indicated that dust at the facility where
appellant worked was the likely cause of his recurrent rash. He explained that appellant obtained
a dust sample from the Livingston postal facility, which was later used to perform a scratch test.
Based on the positive test results, Dr. Zirwas concluded that the dust from the facility was the
likely cause of appellant’s recurrent rash. He suspected that pollen or mold spores, which
appellant was allergic to, were present in the dust. Dr. Zirwas diagnosed dermatitis and
recommended that appellant not return to the Livingston postal facility. He noted that appellant
could perform his full, unrestricted duties at a different facility, preferably one that was relatively
new and likely to have less dust and a better air-handling system. In another undated Form
CA-20, Dr. Zirwas diagnosed “contact urticaria from dust.” He advised that appellant was able
to resume work on July 30, 2007, albeit at a different postal facility.
Appellant provided a statement explaining that he returned to work on July 30, 2007 at a
different facility and delivered mail that day without incident. The following day, July 31, 2007,
he cased and carried mail without an outbreak of the rash he previously experienced. But on
August 1, 2007, appellant began to sneeze and cough after two hours casing mail. He noticed
some skin irritation on his hands and arms and immediately stopped work and went to see his
doctor. Appellant underwent additional testing and was told to remain off work for five days.
On August 2, 2007 his rash had cleared up without him having used any medication. When
appellant returned to work on August 6, 2007, he was assigned duties that did not involve
working around the route cases. Since changing job duties, he reported that he had not
experienced another outbreak.
In an August 8, 2007 report, Dr. Zirwas stated that he had extensively evaluated
appellant, which included clinical examination, skin biopsy, photo testing and allergy testing.
Until recently, he had only seen appellant’s rash in a resolving state. However, on August 1,
1

The signatures on the April 18, May 4 and July 13, 2007 reports are all illegible.

2

2007, Dr. Zirwas saw appellant’s rash after an acute flare-up. He explained that appellant had a
positive reaction to dust from the Livingston postal facility on scratch testing. While dust did not
pose a substantial risk to appellant’s general health, it was possible he would have symptoms
such as coughing, sneezing, rash and itchy eyes if placed in a high dust environment. Dr. Zirwas
indicated that sensitivity to dust was one of the contributing factors to the recurrent rash
appellant experienced and that he should not be placed in high dust environments. He also
explained that appellant had significant photosensitivity to sunlight. Dr. Zirwas based this
assessment on his examination of the acute flare-up of appellant’s rash and a skin biopsy.
According to him, photosensitivity was the other major contributing factor to appellant’s rash.
Dr. Zirwas stated that he advised appellant to avoid exposure to excessive sunlight. He further
stated that appellant should not be exposed to direct sunlight for more than 30 minutes during the
peak exposure hours between 10:00 a.m. and 4:00 p.m.
By decision dated August 29, 2007, the Office denied modification of the July 20, 2007
decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
ANALYSIS
Dr. Zirwas diagnosed dermatitis and contact urticaria from dust in the “Post Office.”
Appellant first realized his rash was caused or aggravated by his employment on or about
2

5 U.S.C. §§ 8101-8193 (2000).

3

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
4

Victor J. Woodhams, supra note 3.

3

April 16, 2007. However, Dr. Zirwas did not initially examine appellant until three months after
the onset of his condition. The medical diagnoses appellant initially received in April and
May 2007 attributed his dermatitis to either sun exposure or plant exposure, without mention of
any possible dust exposure. Several months later, Dr. Zirwas reached a different conclusion
based on a scratch test using a dust sample appellant reportedly collected from the Livingston
postal facility.
The testing methodology employed by Dr. Zirwas is suspect given that there is no means
of verifying that the dust sample was from the employing establishment. There also was no
effort to rule out other possible nonindustrial dust exposure. Dr. Zirwas’ opinion that dust at the
Livingston postal facility likely caused appellant’s rash is undermined by the August 1, 2007
recurrence of the condition when appellant was working at another postal facility. His August 8,
2007 opinion also suggests that high dust concentration in the workplace was a causative factor.
Dr. Zirwas specifically recommended that in the future appellant should “not be placed in high
dust environments.” However, the record is devoid of any information regarding workplace dust
levels either prior or subsequent to the April 2007 onset of appellant’s condition. The record
does not establish that Dr. Zirwas was provided with any reliable data regarding workplace dust
levels.
Dr. Zirwas’ latest report also implicated excessive sunlight as a factor in appellant’s
condition. This clinical assessment was based in part on the doctor’s observation of appellant
shortly after his August 1, 2007 acute flare-up. However, appellant stated that he had been
indoors casing mail for about two hours on August 1, 2007 when he began coughing and
sneezing and noticed some skin irritation on his hands and arms.
The Board finds that Dr. Zirwas’ opinion regarding the cause of appellant’s diagnosed
skin condition is at best, speculative. There is no reliable medical evidence of record linking
appellant’s diagnosed skin condition to his employment. Accordingly, appellant has not met his
burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty.

4

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Honolulu, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0386
Issued: September 14, 2018

Case Submitted on the Record

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

JURISDICTION
On December 13, 2017 appellant filed a timely appeal from a June 16, 2017 merit decision
and an October 4, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish intermittent
periods of disability beginning October 24, 2016, due to his June 13, 2016 employment injury; and

1
2

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its October 4, 2017 decision. The Board’s
jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is
precluded from considering this additional for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 19, 2016 appellant, then a 58-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that, while at work on June 13, 2016, he slipped and fell while ascending
stairs to a parking lot. He stopped work on June 14, 2016. On February 23, 2017 OWCP accepted
the claim for sprain of right knee anterior cruciate ligament (ACL) and unspecified rotator cuff
tear or rupture of right shoulder.
OWCP received three Form CA-7s claiming intermittent disability compensation for
periods commencing October 24, 2016 and continuing.
In a September 29, 2016 progress note, Dr. Joseph DiCostanzo, a Board-certified
physiatrist, noted appellant’s history of the June 13, 2016 employment injury, provided
examination findings and noted the results of the diagnostic testing performed on June 17, 2016.3
He diagnosed right knee pain, right hip pain, right shoulder pain, neck pain, low back pain, right
knee ACL tear, right rotator cuff tear, left knee joint pain, and lumbar muscle strain.
Dr. DiCostanzo placed appellant off work from September 29 through October 28, 2016 due to
“incapacitating injury or pain.”
Dr. DiCostanzo continued to treat appellant. In work status reports dated October 31 and
December 1, 2016, and January 5, 2017,4 he continued to place appellant off work due to
“incapacitating injury or pain.” In his October 31, 2015 report, Dr. DiCostanzo noted examination
findings and diagnosed right knee joint pain, right hip joint pain, right shoulder joint pain, neck
pain, low back pain, right knee ACL tear, right rotator cuff tear, and lumbar muscle strain. In his
December 1, 2016 report, he noted examination findings and diagnosed lumbar muscle strain, right
knee joint pain, right hip joint pain, right shoulder joint pain, right rotator cuff tear, and right knee
ACL tear.
In a February 9, 2017 report, Dr. DiCostanzo noted appellant’s examination findings. He
diagnosed right knee joint pain, right hip joint pain, right shoulder joint pain, neck pain, low back
pain, right knee ACL tear, right rotator cuff tear, and lumbar muscle strain. Dr. DiCostanzo
released appellant to work at appellant’s request due to financial reasons.
In a March 15, 2017 progress note, Dr. DiCostanzo reported examination findings and
assessed a right rotator cuff tear, right knee ACL tear, and lumbar muscle strain. He opined that

3
X-rays of the hips revealed degenerative changes of both hips and degenerative changes of lumbosacral spine; an
x-ray of right knee found no acute bony abnormality; an x-ray of the right shoulder showed no acute bony abnormality
and mild degenerative changes at the acromioclavicular joint and glenoid humeral joint; an x-ray of the cervical spine
showed mild degenerative disc disease and bilateral neural foramen narrowing; and an x-ray of the lumbosacral spine
revealed mild degenerative disc disease.
4

There is no narrative report from Dr. DiCostanzo on January 5, 2017, just an industrial work status report.

2

appellant was temporarily totally disabled from regular work from March 15 through
April 21, 2017.
By development letter dated May 2, 2017, OWCP advised appellant that additional
evidence was needed to establish disability from work for the periods claimed. It requested that
he submit a comprehensive medical report from his physician which explained with objective
findings how his accepted condition had worsened such that he could no longer perform the duties
of his position. OWCP noted that pain was not a valid reason for being off work without
corresponding objective findings. It also noted that Dr. DiCostanzo had diagnosed a lumbar
muscle strain and advised of the medical evidence needed to expand the claim since a back strain
was not an accepted work-related condition. OWCP requested a surgical report for the claimed
postsurgery recovery from October 24 through 28, 2016.5 Appellant was afforded 30 days to
submit this evidence.
In an April 12, 2017 progress note, Dr. DiCostanzo reported examination findings and
provided assessments of lumbar muscle strain, lumbar disc degeneration, right knee joint pain,
right hip joint pain, right shoulder joint pain, neck pain, low back pain, right knee ACL tear, and
right rotator cuff tear. He noted that shoulder, knee, and hip conditions were accepted for this
claim, but no lower back condition was accepted. Dr. DiCostanzo opined that, based on the
history, mechanism of injury, and his examination, appellant’s diagnosed conditions were more
than likely was caused by the work injury and therefore were industrial injuries.
In an April 27, 2017 progress report, Dr. DiCostanzo reported a history of injury occurring
on October 17, 2007 while appellant was reaching for lights and strained his back. He indicated
that, since that time, appellant had chronic low back pain. Results from a March 4, 2013 lumbar
spine magnetic resonance imaging (MRI) scan revealed chronic stable disc bulges and stable mild
central spinal canal stenosis secondary to a broad-based disc bulge and facet joint arthropathy. No
diagnosis was provided.
By decision dated June 16, 2017, OWCP denied appellant’s claim for intermittent periods
of wage-loss compensation commencing October 24, 2016. It found that the medical evidence of
record failed to establish that he was disabled from work during the claimed periods as a result of
his accepted conditions.
In a January 5, 2017 progress report, Dr. DiCostanzo reported examination findings and
diagnosed lumbar muscle strain, right rotator cuff tear, right knee ACL tear, right hip muscle strain,
right patellar tendon strain, neck muscle strain, and right shoulder muscle strain. He noted that
appellant was released back to work at his request. In a January 5, 2017 work status report,
Dr. DiCostanzo held appellant off work from January 6 to 8, 2017 due to “incapacitating injury or
pain.”
In a February 9, 2017 progress note and work status report, Dr. DiCostanzo noted
examination findings and diagnosed right patellar tendon strain, right hip muscle strain, right
5

OWCP noted that under case number xxxxx651 appellant had an accepted right carpal tunnel condition. Appellant
was advised that, if he had surgery for a right carpal tunnel release, then he could refile the Form CA-7 and Form CA7a under that claim number.

3

shoulder muscle strain, and neck muscle strain. He opined that appellant was totally disabled from
his regular work from February 9 through March 17, 2017.
In March 15, April 12, May 16, and June 14, 2017 progress notes, Dr. DiCostanzo noted
examination findings and diagnosed right rotator cuff tear, right knee ACL tear, neck muscle strain,
right hip muscle strain, right patellar tendon strain, right shoulder muscle strain, and lumbar muscle
strain.
On July 6, 2017 appellant requested reconsideration.
In a July 13, 2017 report, Dr. DiCostanzo provided examination findings and diagnosed
right patellar tendon strain, right hip muscle strain, right shoulder muscle strain, and neck muscle
strain. In an accompanying July 13, 2017 work status report, he indicated that appellant had
permanent restrictions from the June 13, 2016 work injury. No restrictions were provided. An
August 30, 2017 progress report from Dr. DiCostanzo was also received.
By decision dated October 4, 2017, OWCP denied appellant’s request for reconsideration.
It found that the evidence submitted was either cumulative or irrelevant and immaterial.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.7 For each period of disability
claimed, the employee has the burden of proof to establish that he was disabled from work as a
result of the accepted employment injury.8 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.10 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.11 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning

6

Supra note 1.

7

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
8

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

9

See Edward H. Horton, 41 ECAB 301 (1989).

10

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).
11

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

4

capacity.12 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish intermittent
periods of disability for the claimed periods commencing October 24, 2016.
OWCP accepted appellant’s claim for sprain of the ACL of his right knee and unspecified
rotator cuff tear or rupture of the right shoulder. During his alleged periods of disability, appellant
received medical treatment from Dr. DiCostanzo, who restricted appellant from work beginning
September 29, 2016. As noted, the Board will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability for
which compensation is claimed.14
For the period October 24 through 28, 2016, appellant claimed 40 hours leave without pay
for postsurgery recovery. The record is devoid of any evidence that he underwent surgery related
to the accepted conditions of sprain of the ACL of right his knee and unspecified rotator cuff tear
or rupture of right shoulder, not specified as traumatic. Additionally, there is no medical evidence
of record addressing that specific time period.15
Appellant also claimed wage-loss benefits as of October 31, 2016 for “incapacitating
injury.” However, Dr. DiCostanzo failed to provide any medical rationale supported by objective
findings which explained how appellant’s accepted work conditions had worsened to the point
where he could no longer work during this period. In his progress notes and work status reports
dated September 29, October 31, and December 16, 2015 and January 5, 2017, he took appellant
off work due to “incapacity injury or pain.” The Board has found, however, that when a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability.16 Dr. DiCostanzo did not discuss any objective findings to support appellant’s inability
to work, nor did he explain why appellant was unable to work as a result of his accepted sprain of
12

Merle J. Marceau, 53 ECAB 197 (2001).

13

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

14

Id.

15

See id.

16

P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

5

the ACL of his right knee and unspecified rotator cuff tear or rupture of right shoulder, not
specified as traumatic.17 The Board notes that in multiple reports he continually noted appellant’s
right shoulder, neck, hip joint, knee, and low back pain. Dr. DiCostanzo’s opinions pertaining to
disability due to pain are also insufficient to establish disability compensation as the Board has
held that pain is a description of a symptom and not a diagnosed medical condition.18
On March 15, 2017 Dr. DiCostanzo opined that appellant was totally disabled from
March 15 to April 27, 2017.19 However, he did not explain with objective findings why appellant
was disabled from work.20
Dr. DiCostanzo noted appellant’s prior lumbar muscle strain which occurred on
October 17, 2007. However, he did not provide a well-rationalized medical opinion with objective
findings which explained how the June 13, 2016 work injury caused or aggravated appellant’s
preexisting back condition to the point that he was rendered totally disabled from work during the
claimed time periods.21
Accordingly, the Board finds that appellant has failed to establish intermittent disability
for the claimed periods commencing October 24, 2016. As such, appellant has failed to establish
that he was entitled to wage-loss compensation for the claimed periods.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,22
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.23 To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
a claimant’s application for review must be received by OWCP within one year of the date of that

17

See M.M., Docket No. 16-0541 (issued April 27, 2010).

18

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-0881 (issued August 1, 2007) (regarding spasm).
19

At appellant’s request, Dr. DiCostanzo released appellant back to work on February 9, 2017.

20

See supra note 14.

21

See supra note 17.

22

Supra note 1. 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.
23
20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).

6

decision.24 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.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 8128(a).
The Board finds that appellant’s request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Consequently,
appellant was not entitled to a review of the merits based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted Dr. DiCostanzo’s January 5, February 9, March 15, April 12, May 16, June 14, and
July 13, 2017 reports and physical therapy reports. In these reports, rather than relating appellant’s
multiple pain complaints, Dr. DiCostanzo listed strains corresponding to appellant’s pain
complaints. He did not offer further explanation regarding the cause of these strains or how they
caused appellant disability during the claimed time periods. This evidence, while new to the
present claim, is cumulative of evidence contained in the case record and does not constitute a
basis for reopening a case.26
OWCP also received new September 17, 2017 MRI scan reports. As this evidence does
not address the underlying issue of disability during the time periods in question, causally related
to appellant’s accepted employment conditions, this evidence is insufficient to reopen his claim
for further merit review.27
The Board finds that, as appellant did not satisfy any of the three requirements under
section 10.606(b)(3) to warrant further merit review of his claim, OWCP properly denied his
request for reconsideration.
CONCLUSION
The Board finds that appellant has not established intermittent periods of disability
beginning October 24, 2016 and continuing causally related to his accepted employment. The
Board also finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

24

Id. at § 10.607(a).

25

Id. at § 10.608(b). See Y.S., Docket No. 08-0440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
26

M.V., Docket No. 17-0132 (issued April 7, 2017); Candace A. Karkoff, 56 ECAB 622 (2005).

27

J.D., Docket No. 16-1253 (issued February 7, 2017); D’Wayne Avila, 57 ECAB 642 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT that the October 4 and June 16, 2017 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 14, 2018
Washington, DC

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

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

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

8