United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1171
Issued: December 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 28, 2015 appellant filed a timely appeal from an April 10, 2015 nonmerit
decision and an April 14, 2015 merit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of compensation in
the amount of $1,165.50 for which she was without fault; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP properly determined that
appellant had abandoned her request for a prerecoupment hearing.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 14, 2015 OWCP decision and on appeal, 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).

On appeal appellant contends that she should not be responsible to repay a debt for which
she was found to be without fault and requests a waiver of recovery, indicating that she is a
single mother with two dependents and not financially capable of repayment. She argues that
she is not prepared to pay $100.00 a month from the minimum income that she has each month.
Appellant further contends that she never received notice of the hearing date and, therefore,
could not have abandoned her hearing.
FACTUAL HISTORY
OWCP accepted that on May 21, 2013 appellant, a 27-year-old city carrier associate,
sustained a left hip strain on May 21, 2013 while walking in the performance of duty. Appellant
filed a claim for compensation (Form CA-7) for the period June 29 to September 20, 2013. On
December 3, 2013 OWCP paid compensation for the period July 8 to September 16, 2013.
On August 28, 2014 OWCP issued a preliminary determination that appellant received an
overpayment in compensation in the amount of $1,165.50 for the period July 8 to September 16,
2013 because she had been incorrectly paid compensation based on a weekly pay rate of $534.33
when she should have been paid based on a weekly pay rate of $315.57.
Appellant’s pay rate on the date of injury was calculated to be $534.33 per week. She
was a transitional employee who worked 38 hours per week for 54 days, 417.09 hours total.
Appellant had not worked in her position for 11 months prior to the injury. During the year prior
to the injury, she earned a total of $5,907.45. The position would have afforded employment for
substantially the whole year but for the injury, but the employing establishment advised that
there was no other employee with the same or similar appointment. Therefore, it could not
provide the actual earnings of another employee with the same kind of appointment working in a
job with the same or similar duties.
OWCP determined that appellant’s compensation was incorrect because it should have
been calculated based on the 150 formula which is appropriate for city carrier associates who had
not worked one year prior to the date of injury. It divided the total amount earned ($5,907.45) by
the total number of days worked (54) to determine appellant’s average daily wage, then
multiplied the average daily wage by 150 to determine average annual earnings, and divided that
number by 52 weeks to find her weekly pay rate ($315.57).3
Payment records show that appellant had been paid at the weekly rate of $534.33 and
received $4,093.84 for this period, but should have been paid at the weekly rate of $315.57 to
receive $2,928.34. This was an overpayment in the amount of $1,165.50.4 OWCP found that
appellant was not at fault in the creation of the overpayment, making her eligible for waiver of
recovery of the overpayment. On August 28, 2014 appellant was provided an overpayment
recovery questionnaire and advised that she could request a prerecoupment hearing on the issues
of fault and possible waiver of the overpayment. Appellant was advised that the overpayment

3

$5,907.54 divided by 54 multiplied by 150 divided by 52 = $315.57.

4

$4,093.84 - $2,928.34 = $1,165.50.

2

action request must be returned to OWCP within 30 days, along with supporting financial
information, to determine whether she would be eligible for waiver.
On October 2, 2014 appellant requested a prerecoupment hearing. She submitted an
overpayment recovery questionnaire (Form OWCP-20) indicating that she had two dependent
children, a monthly income of $771.00 from supplemental security income payments and state or
local welfare, and monthly expenses of $1,460.00 for rent or mortgage, food, clothing, utilities,
and other expenses. Appellant stated that she worked at Open Systems Healthcare earning
$350.00 per week, had $65.00 cash on hand, and $24.87 in savings. She further submitted a
television bill for $126.71, a cell phone bill for $50.00, a gas bill for $100.31, a water bill for
$74.15, an electric bill for $70.34, and a statement from American Heritage Federal Credit Union
stating a balance of $24.64.
In a February 18, 2015 notice, OWCP’s Branch of Hearings and Review scheduled a
prerecoupment hearing for 9:45 a.m. Eastern Standard Time (EST) on March 30, 2015. It
provided appellant with a toll free number and pass code for the telephone hearing. OWCP
advised appellant that postponement of the hearing would only be permitted upon receipt of
documentation showing her nonelective hospitalization or that the death of a spouse, parent, or
child prevented her attendance. The notice was mailed to appellant’s address of record.5
On March 30, 2015 appellant failed to participate in the telephone prerecoupment
hearing.
By decision dated April 10, 2015, an OWCP hearing representative found that appellant
failed to appear at the prerecoupment hearing and had abandoned her request. The hearing
representative found no evidence that appellant had contacted OWCP prior to or subsequent to
the scheduled hearing.
In an April 14, 2015 decision, OWCP finalized its preliminary overpayment
determination. It found that appellant had received an overpayment of compensation in the
amount of $1,165.50, but was not at fault in its creation. OWCP further found that the
circumstances of the case did not warrant waiver of recovery, as no financial information
established a basis for waiver. As appellant was not receiving continuing compensation
payments, OWCP found that she should repay the debt at a rate of $100.00 a month.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.6

5

Appellant had supplied OWCP with a change of address on July 29, 2013. OWCP properly used the revised
address on all subsequent correspondence.
6

5 U.S.C. § 8102(a).

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Section 8114(d) of FECA provides four different methods for determining the average
annual earnings depending on the character and duration of the employment:
“(1) If the employee worked in the employment in which she was employed at the
time of her injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying her daily wage for the particular employment or the average
thereof if the daily wage has fluctuated, by 300 if she was employed on
the basis of a 6-day workweek, 280 if employed on the basis of a 5½-day
week and 260 if employed on the basis of a 5-day week.
“(2) If the employee did not work in employment in which she was employed at
the time of her injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.
“(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which she was working at the time of the injury having regard
to the previous earnings of the employee in [f]ederal employment and of other
employees of the United States in the same or most similar class working in the
same or most similar employment in the same or neighboring location, other
previous employment of the employee or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within [one]
year immediately preceding her injury.7
(4) If the employee served without pay or at nominal pay, paragraphs (1), (2), and
(3) of the subsection apply as far as practicable, but the average annual earnings
of the employee may not exceed the minimum rate of basic pay for GS-15. If the
average annual earnings cannot be determined reasonably and fairly in the manner
otherwise provided by this section, the average annual earnings shall be
determined at the reasonable value of the service performed but not in excess of
$3,600.00 a year.”

7

Id. at § 8114(d).

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ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $1,165.50 because on an incorrect pay rate for the period July 8 to September 16,
2013 and properly found appellant without fault.
Appellant did not work in the employment position in which she was employed at the
time of her injury during substantially the whole year immediately preceding the injury. The
position would have afforded employment for substantially the whole year but for the injury.
The employing establishment advised that there was no other employee with the same or similar
appointment, therefore, it could not provide the actual earnings of another employee with the
same kind of appointment working in a similar job with the same or similar duties.8
Under the circumstances, the Board finds that OWCP properly determined average
annual earnings under section 8114(d)(3).9 OWCP gave due regard to relevant factors and
properly applied the 150 formula to determine average annual earnings and a weekly pay rate of
$315.57. It divided the total amount she earned ($5,907.45) by the total number of days worked
(54) to determine appellant’s average daily wage, then multiplied the average daily wage by 150
to determine average annual earnings, and divided that number by 52 weeks to find her weekly
pay rate ($315.57).10 At that pay rate, appellant should have received $2,928.34 for the period
July 8 to September 16, 2013 rather than the $4,093.84 she did receive. The Board will therefore
affirm OWCP’s finding of an overpayment of compensation in the amount of $1,165.50.11
LEGAL PRECEDENT -- ISSUE 2
According to section 8129(a) of FECA, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
made because of an error of fact or law.12 The only exception is if the individual is without fault
in the creation of the overpayment and when adjustment or recovery would defeat the purpose of
FECA or would be against equity and good conscience.13 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper.14 A recipient is at fault in the creation or acceptance of an
overpayment if he or she has done any of the following: (1) made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect; (2) failed to provide

8

See L.M., Docket No. 12-1423 (issued November 7, 2012).

9

See 5 U.S.C. § 8114(d)(3).

10

$5,907.54 divided by 54 multiplied by 150 divided by 52 = $315.57.

11

$4,093.84 - $2,928.34 = $1,165.50.

12

5 U.S.C. § 8129(a).

13

Id. at § 8129(b).

14

20 C.F.R. § 10.433(a). See K.C., Docket No. 11-1307 (issued January 10, 2012).

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information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known to be incorrect.15
Section 10.436 of the implementing federal regulations provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause undue 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.16
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
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.17 To establish a position for the worse, the individual
must show that he made a decision he otherwise would not have made in reliance on the
overpaid amounts and that this decision resulted in a loss. Conversion of the overpayment into a
different form from which the claimant derived some benefit does not constitute loss for this
purpose.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
Regarding the $1,165.50 overpayment of compensation, OWCP found that appellant was
without fault in the creation of the overpayment, but denied waiver of recovery because appellant
had not provided sufficient evidence to establish the need for waiver or a reasonable monthly
repayment amount. The record reflects that appellant has a monthly income of $771.00 from
supplemental security income payments and state or local welfare and an approximate monthly
income of $1,516.67 from her earnings from Open Systems Healthcare at $350.00 per week,
totaling $2,287.67 in monthly income.19 She reported monthly expenses of $1,460.00 for rent or
mortgage, food, clothing, utilities, and other expenses. Accepting these amounts as accurate, her
monthly income exceeds her monthly expenses by $827.67.20 As appellant’s monthly income
exceeds her expenses by more than $50.00, appellant is not deemed to need substantially all of
her current income (including compensation benefits) to meet current ordinary and necessary

15

Id. See B.H., Docket No. 09-292 (issued September 1, 2009).

16

Id. at § 10.436.

17

Id. at § 10.437.

18

See Jorge O. Diaz, 51 ECAB 124 (1999).

19

$350.00 multiplied by 52 weeks divided by 12 = $1,516.67.

20

$2,287.67 - $1,460.00 = $827.67.

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living expenses.21 OWCP properly concluded that recovery of the overpayment would not defeat
the purpose of FECA, be against equity or good conscience, or cause hardship to appellant.
Thus, the Board finds that OWCP properly denied waiver of recovery of the overpayment in the
amount of $1,165.50.
Appellant contends on appeal that she should not be responsible to repay a debt for which
she was found to be without fault and requests a waiver of recovery, indicating that she is a
single mother with two dependents who is not financially capable of repayment. Although
OWCP found that appellant was without fault in the matter of the overpayment, repayment is
still required unless adjustment or recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience.22
On appeal appellant argues that she is not prepared to pay $100.00 a month from the
minimum income that she has each month. The Board’s jurisdiction to review the collection of
an overpayment, however, is limited to cases of adjustment, where OWCP decreases later
payments of compensation to which the individual is entitled.23 Because appellant is no longer
receiving compensation, collection of the overpayment in this case cannot be made by adjusting
later payments but must be recovered by other means. The Board therefore lacks jurisdiction to
review the amount of recovery determined by OWCP to be appropriate.
LEGAL PRECEDENT -- ISSUE 3
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.24 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.25 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.26 Section 10.622(f) of OWCP regulations provide that a
claimant who fails to appear at a scheduled hearing may request in writing within 10 days after
the date set for the hearing that another hearing be scheduled.27 Where good cause for failure to
21

See L.C., Docket No. 14-0725 (issued August 13, 2014); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.0200.6a(1)(b) (June 2009). An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses if monthly
income does not exceed monthly expenses by more than $50.00. In other words, the amount of monthly funds
available for debt repayment is the difference between current income and adjusted living expenses (i.e., ordinary
and necessary living expenses plus $50.00).
22

See Wade Baker, 54 ECAB 198 (2002).

23

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

24

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

25

20 C.F.R. § 10.617(b).

26

See M.B., Docket No. 10-1077 (issued March 17, 2011).

27

20 C.F.R. § 10.622(f).

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appear is shown, another hearing will be scheduled and conducted by teleconference. The failure
of the claimant to request another hearing within 10 days, or the failure of the claimant to appear
at the second scheduled hearing without good cause shown, shall constitute abandonment of the
request for a hearing. Where good cause is shown for failure to appear at the second scheduled
hearing, review of the matter will proceed as a review of the written record.28 Where it has been
determined that a claimant has abandoned her right to a hearing, OWCP will issue a formal
decision finding that the claimant has abandoned her request for a hearing.29
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant had abandoned her
request for a prerecoupment hearing.
Appellant contends on appeal that she never received notice of the hearing date and,
therefore, could not have abandoned her hearing. The record establishes that on February 18,
2015, in response to appellant’s timely request for a prerecoupment hearing, the Branch of
Hearings and Review mailed an appropriate notice of the hearing scheduled to be held on
March 30, 2015 at 9:45 a.m. EST by telephone. The hearing notice was properly mailed to
appellant’s last known address of record. As the Board has held, in the absence of evidence to
the contrary, a letter properly addressed and mailed in the due course of business is presumed to
have arrived at the mailing address in due course. This is known as the mailbox rule.30 The
Board finds that the notice was sent more than 30 days prior to the scheduled hearing date of
March 30, 2015. The record establishes that appellant did not appear at the appointed time.
Further, she did not request a postponement of the hearing prior to March 30, 2015 or explain her
failure to appear at the hearing within 10 days of the scheduled hearing. Thus, the Board finds
that appellant abandoned her request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $1,165.50 because an incorrect pay rate had been used for the period July 8 to
September 16, 2013, and properly found appellant without fault. The Board finds that OWCP
properly denied waiver of recovery of the overpayment and that appellant abandoned her request
for a prerecoupment hearing.

28

Id.

29

See N.L., Docket No. 15-0713 (issued July 14, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
30

See R.M., Docket No. 14-1512 (issued October 15, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the April 14 and 10, 2015 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: December 21, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

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Appearances:
Todd Boehlje, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-133
Issued: July 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 24, 2012 appellant, through his attorney, filed a timely appeal from an
April 27, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that denied
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 over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
May 28, 2011.
On appeal his attorney asserts that appellant’s injury occurred in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 28, 2011 appellant, then a 36-year-old new agent trainee (NAT), filed a traumatic
injury claim alleging that he strained his right hamstring during a practice for a required physical
fitness test that was administered by his personal trainer while at home on Saturday,
May 28, 2011. The employing establishment advised that the injury did not occur on the
employing establishment premises and occurred outside of appellant’s normal work schedule of
8:00 a.m. to 5:00 p.m., Monday through Friday. Appellant did not stop work.
In letters dated August 17, 2011, OWCP informed appellant of the evidence needed to
support his claim and asked the employing establishment to respond. In an undated statement,
appellant alleged that he developed a weakness in his right leg while training at the employing
establishment in Quantico, Virginia, and subsequently strained his right hamstring while
practicing for a physical fitness test, while at home in St. Louis, Missouri. He stated that as a
result of this injury, he had to cease training for the agent position and return to St. Louis where
he began rehabilitation, including physical therapy.2 Appellant noted that he developed
additional pain higher up in his right leg and that a magnetic resonance imaging (MRI) scan
study demonstrated two stress fractures to his pubic bone.3 On June 27, 2011 appellant
completed a history form for Dr. Matthew C. Bayes, an attending physician Board-certified in
pediatrics and sports medicine, who stated that appellant sustained pain in his upper right leg on
May 28, 2011 while sprinting on a track, and that he continued to have sharp, stabbing, shooting
pain, weakness and stiffness.
In a June 28, 2011 report, Dr. Bayes reported that appellant sustained an injury to his
right hip and groin while sprinting during a workout at the employing establishment and had
returned home to St. Louis because he was unable to complete his training. He reported that
appellant had physical therapy and had seen a chiropractor. Following physical examination,
Dr. Bayes advised that appellant had severe medial groin pain which was a possible sports hernia
vs. adductor tendinosis vs. superior pubic ramus stress fracture. He noted that appellant had 90
days in which to recover and resume training and recommended an MRI scan study. On July 8,
2011 Dr. Bayes reviewed a July 1, 2011 pelvic MRI scan study that demonstrated bilateral
parasymphyseal pubic stress fractures of the pubic ramii. He stated that he was pessimistic that
appellant would be able to resume training in September. A July 18, 2011 MRI scan study of the
right hip without contrast demonstrated a low-grade strain of the right hamstring. On July 18,
2011 Dr. Bayes reported that appellant was limping badly and complained of circumferential
right proximal hip pain. He diagnosed severe hip pain with weakness in abduction. In a July 20,
2011 report, Dr. Bayes reviewed the July 18, 2011 MRI scan study and did not think it was
clinically significant. He reported that appellant was continuing physical therapy.4
2

Appellant was employed as an analyst with the employing establishment when he began NAT training. He
resumed this employment when he returned to St. Louis.
3

The record indicates that appellant has an accepted occupational disease of the right hip and thigh sprain,
adjudicated under OWCP file number xxxxxx060. The instant case was adjudicated under file number xxxxxx252.
4

Appellant also submitted physical therapy treatment notes dated July 15 to August 3, 2011 and a June 28, 2011
report from a chiropractor.

2

By letter dated August 29, 2011, Terri E. Royster, supervisory special agent at the
employing establishment, noted that all NATs were required to participate in physical fitness
tests during weeks one and nine of training. She stated that there were no regulations or policies
that mandated that students workout after hours or on weekends but that they were encouraged to
do so in order to pass the fitness tests as there was no time during the workday for them to
engage in such activity. Agent Royster indicated that appellant had not passed the week one
physical fitness test and, therefore, it was very important that he pass the week nine test. If it
could be shown that a NAT did not engage in his or her own workout regimen, this could be used
to show a lack of judgment, consciousness and initiative. Agent Royster indicated that the
physical requirements for a special agent were severe and submitted a position description for the
special agent position.
By decision dated September 16, 2011, OWCP denied the claim, finding that appellant
did not sustain an injury in the performance of duty.
Appellant timely requested a hearing, and submitted a July 1, 2011 MRI scan study of the
pelvis that demonstrated bilateral pubic stress fractures, an intact common rectus adductor
aponeurosis and mild right hamstring origin tendinopathy.
At the February 15, 2012 hearing, appellant’s attorney contended that, while appellant
was injured at a high school track in St. Louis, Missouri, he was in the performance of duty
because he was practicing an exact replication of the required physical fitness test, which was a
benefit to the employing establishment. Appellant testified that the test in St. Louis was
monitored by his personal trainer and that he continued to have pain after his return to Virginia.
He had to discontinue NAT training and returned to his usual position as an analyst in St. Louis.
After his return to St. Louis, he first saw his family physician, Dr. Brett Foersterling, who
referred him to physical therapy.
On a May 31, 2011 treatment note, Tess E. Briggs, a physician’s assistant with the
employing establishment, noted a history that appellant injured his right hamstring while
practicing sprints when he was at home the previous weekend and that he did not limp after the
injury. She noted slight tenderness to palpation of the medial mid-hamstring and diagnosed right
hamstring strain. Ms. Briggs advised that appellant could continue physical training but should
avoid sprinting and leg exercises. She reevaluated appellant on June 6, 2011, noting that
appellant reported that he was unable to sprint. In an August 7, 2011 note, Dr. Thomas W.
Gross, an employing establishment physician who is Board-certified in emergency medicine,
noted a history of hamstring injury. He noted that appellant felt he would not heal in time to
complete a physical fitness test scheduled for June 10, 2011 and diagnosed hamstring strain.
In a February 22, 2012 report, Dr. Bayes stated that he first evaluated appellant on
June 28, 2011 and related that appellant first experienced pain in his right hip and groin on
May 28, 2011 while sprinting as part of a workout. He advised that appellant’s right hip,
hamstring and groin pain were causally related to the May 28, 2011 incident that occurred while
appellant was training for the employing establishment.5
5

In a March 8, 2012 cover letter, appellant’s attorney also stated that he was submitting records from
Dr. Foersterling’s office dated June 10, 2011. These are not found in the record before the Board.

3

By decision dated April 27, 2012, an OWCP hearing representative affirmed the
September 16, 2011 decision, finding that the May 28, 2011 activity did not occur in the
performance of duty.
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. Regardless of whether the asserted claim involves a traumatic
injury or an occupational disease, an employee must satisfy this burden of proof.6
Section 8102(a) of FECA provides for payment of compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of duty.7 This
phrase is regarded as the equivalent of the coverage formula commonly found in workers
compensation laws; namely, arising out of and in the course of employment.8 Whereas arising
out of the employment addresses the causal connection between the employment and the injury,
arising in the course of employment pertains to work connection as to time, place and activity.9
For the purposes of determining entitlement to compensation under FECA, arising in the course
of employment, i.e., performance of duty must be established before arising out of the
employment, i.e., causal relation, can be addressed.10
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; (2) the employing establishment, by
expressly or impliedly requiring participation or by making the activity part of the service of the
employee, brings the activity within the orbit of employment; or (3) the employing establishment
derives substantial direct benefit 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.11
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
6

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

7

5 U.S.C. § 8102(a).

8

See Bernard E. Blum, 1 ECAB 1 (1947).

9

See Robert J. Eglinton, 40 ECAB 195 (1988).

10

Kenneth B. Wright, 44 ECAB 176 (1992).

11

S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011);
Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, supra
note 10. See also A. Larson, The Law of Workers’ Compensation § 22.00 (2012).

4

conjunction with one another. The first component is whether the employee actually
experienced the employment incident or exposure, which is alleged to have occurred.12 In order
to meet his or her burden of proof to establish the fact that he or she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he or she
actually experienced the employment injury or exposure at the time, place and in the manner
alleged.13 The second component is whether the employment incident caused a personal injury
and generally can be established only by medical evidence.14
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.15 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.16
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.17 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable 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 employee.18
ANALYSIS
The record supports that appellant sustained a hamstring and a public stress fracture
injury on May 28, 2011. The Board finds that this injury did not occur in the performance of
duty. The record establishes that the injury occurred at a high school track near appellant’s home
in St. Louis, Missouri and not on the premises of the employing establishment in Quantico,
Virginia.
Professor Larson notes that with respect to whether an injury sustained while
participating in recreational activities is employment related turns on a different mix of factors,
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012,
June 1995).
13

Linda S. Jackson, 49 ECAB 486 (1998).

14

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5 (employing
establishment); 10.5(q) (traumatic injury and occupational disease defined, respectively).
15

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

16

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

17

Y.J., Docket No. 08-1167 (issued October 7, 2008).

18

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

including: whether it was sustained on or off the premises of the employing establishment; in or
out of the employee’s work hours; the extent of the employing establishment’s initiative for
participating and the type of benefit derived by the employing establishment.19
The Board has addressed the compensability of injuries sustained by federal employees
while exercising. In William D. Zerrillo,20 the employee sustained injury to his left Achilles
tendon while exercising at a private health club. The injury was sustained at 6:15 p.m., while his
work shift was 8:30 a.m. to 5:00 p.m. The claim was controverted by his employer, noting that
there was no written requirement in the United States Marshal’s Service manual establishing the
need for physical fitness outside of normal duty hours or at an off-premises location. The Board
affirmed the denial of the employee’s claim. The Board found that the injury did not occur on
the premises of the employing establishment during a lunch or recreational period but took place
after his work shift at an off premise location for which no funds were paid by the employer.
Therefore, appellant was not in the performance of duty when injured.
In Wesley Crow,21 the employee sustained injury while running on asphalt in a public
park at a location off premises of his employing establishment and after his work shift. The
Board found that he did not sustain his injury while in the performance of duty. The record
established that the employing establishment required him to meet a set physical efficient battery
and he was granted three hours a week of on duty time for physical conditioning at a contracted
fitness facility. As to the time and location of injury, the Board found that it occurred after his
work shift, off the employing establishment’s premises and not at the contracted fitness facility.
There was no evidence of record to establish that the employing establishment required him to
run in a public park after his work hours.
The circumstances of this case are similar to those described in Zerrillo and Crow. In the
present case, Agent Royster stated that, while it was recommended that NATs practice physical
fitness during off-duty hours, there were no regulations or policies that mandated such activity.
Appellant’s injury did not occur on the premises of his employing establishment but rather on a
track in his home town. The injury took place after his work hours on a weekend. There is no
evidence that appellant’s employer required him to practice the physical fitness test at the time of
injury. The injury did not occur at a time when appellant was reasonably engaged in the master’s
business, at a place where he was reasonably expected to be in connection with the employment
or while he was reasonably fulfilling the duties of his employment or engaged in doing
something incidental thereto.22 Under these circumstances, the Board finds that appellant was
not in the performance of duty at the time of his injury.

19

Larson, The Law of Workers’ Compensation, Chapter 22. Larson notes that the course of employment does not
embrace every spontaneous or unprecedented frolic.
20

39 ECAB 525 (1988).

21

Docket No. 93-1323 (issued August 1, 1994).

22

See Annie L. Ivey, 55 ECAB 480 (2004).

6

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 did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on May 28, 2011.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Springfield, MA, Employer
__________________________________________

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

Docket No. 10-1487
Issued: March 15, 2011

Case Submitted on the Record

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

JURISDICTION
On May 10, 2010 appellant filed a timely appeal from a December 15, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 the Office properly determined appellant’s wage-earning
capacity pursuant to 5 U.S.C. § 8115; and (2) whether he has more than a 25 percent left leg
permanent impairment.
FACTUAL HISTORY
On March 17, 2006 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he suffered a back injury in the performance of duty on
March 14, 2006 when he landed awkwardly while walking down steps. On May 2, 2006 the

Office accepted a lumbar sprain/strain.
osteoarthritis on October 18, 2006.1

In addition, it accepted aggravation of left knee

The record indicates that appellant returned to light-duty work and underwent a left total
knee replacement surgery by Dr. Andrew Lehman, an orthopedic surgeon, on July 24, 2007.
Appellant returned to work at six hours a day on November 26, 2007. He accepted a full-time
light-duty job offer on February 27, 2008. On April 24, 2008 appellant accepted a full-time
modified letter carrier position.
On August 1, 2008 appellant filed a claim for wage-loss compensation (Form CA-7) and
checked a box that he was claiming a schedule award. With respect to his light-duty position,
the Office requested pay rate information from the employing establishment. In a March 9, 2009
response, the employing establishment reported appellant’s current annual salary was $52,203.00
and the current annual pay rate for the date-of-injury job was $50,723.00.
By decision dated March 23, 2009, the Office determined that appellant’s actual earnings
fairly and reasonably represented his wage-earning capacity. It found that he had no loss of
wage-earning capacity. Appellant requested a hearing before an Office hearing representative on
April 16, 2009.
In a report dated April 8, 2009, Dr. Lehman stated that appellant had reached maximum
medical improvement (MMI) in July 2008, one year after the surgery. He opined that under the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides), appellant had a 37 percent left leg impairment
pursuant to Table 17-33. Dr. Lehman noted that appellant had a good result from the total knee
replacement surgery.
By report dated July 7, 2009, Dr. Lehman opined that under the sixth edition of the
A.M.A., Guides, appellant had a 25 percent left leg impairment pursuant to Table 16-3. The
Office referred the evidence to an Office medical adviser for review. In a report dated July 10,
2009, the medical adviser reviewed the medical evidence and Table 16-3. He noted that the
default value for Class 2 was 25 percent, and he assigned a Grade Modifier 1 for functional
history, one for physical examination and for clinical studies a Grade Modifier 4, resulting in no
net adjustment from the default value. The medical adviser concurred with Dr. Lehman the left
leg impairment was 25 percent and he opined that the date of MMI was July 16, 2008.
In a decision dated July 14, 2009, the Office issued a schedule award for a 25 percent
permanent impairment to the left leg. The period of the award was 72 weeks from July 16, 2008.
A hearing before an Office hearing representative was held on September 29, 2009 with
respect to both the March 23 and July 14, 2009 Office decisions. Appellant argued that he did
have a loss of wage-earning capacity as he worked overtime prior to the employment injury. He
submitted a list of earnings by pay period from 2004 through pay period 6 of 2006, including the
1

A November 22, 2006 Statement of Accepted Facts (SOAF) reports that appellant had a September 3, 2005
claim that was accepted for left knee osteoarthritis and he was working with restrictions at the time of the March 14,
2006 injury. This prior claim has not been combined with the current Office file.

2

number of overtime hours worked in each period. With respect to the schedule award, appellant
argued that the Office had time to issue a decision under the fifth edition of the A.M.A., Guides
and it should have issued a decision prior to May 1, 2009.
By decision dated December 15, 2009, an Office hearing representative affirmed the
March 23 and July 14, 2009 Office decisions.
LEGAL PRECEDENT -- ISSUE 1
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity.2 Generally, wages actually earned are the best
measure of a wage-earning capacity and, in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.3
Office procedures state that after a claimant has been working for 60 days, the Office will
make a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.4 The Office’s procedure manual provide guidelines for determining wage-earning
capacity based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonable represents his or her WEC, the CE [claims examiner] should consider
whether the kind of appointment and tour of duty (see FECA PM 2-900.3) are at
least equivalent to those of the job held on date of injury. Unless they are, the CE
may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days, and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:
‘(1) The job is part-time (unless the claimant was apart-time
worker at the time of injury) or sporadic in nature;
‘(2) The job is seasonal in an area where year-round employment
is available….

2

5 U.S.C. § 8115(a).

3

Dennis E. Maddy, 47 ECAB 259 1995).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1995).

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‘(3) The job is temporary where the claimant’s previous job was
permanent.’”5
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,6 has been codified at 20 C.F.R. § 10.403. The
Office first calculates an employee’s wage-earning capacity in terms of percentage by dividing
the employee’s earnings by the current pay rate for the date-of-injury position.7
ANALYSIS -- ISSUE 1
Appellant returned to a full-time position as a modified letter carrier, and the record
contains a job offer signed by appellant on April 24, 2008. He worked for more than 60 days,
and there is no indication the job was part time, seasonal or temporary. As noted above,
generally wages earned are the best measure of wage-earning capacity. In the absence of
contrary evidence, the Office properly found earnings in the light-duty job fairly and reasonably
represented appellant’s wage-earning capacity.
The employing establishment provided evidence that the current earnings were
$52,203.00 a year or $1,003.90 a week. The current date-of-injury position pay rate was
$50,723.00 annually or $975.44 weekly. In accord with 20 C.F.R. § 10.403, the Office divides
the actual earnings by the current date-of-injury position pay rate. Since the actual earnings
exceed the date of injury current pay rate, there is no loss of wage-earning capacity.8
On appeal, appellant did not discuss the wage-earning capacity issue. At the
September 29, 2009 hearing, he indicated that prior to the employment injury he regularly
worked overtime, and therefore he felt these earnings should have been used in calculating his
wage-earning capacity. The hearing representative explained in some detail the provisions of
5 U.S.C. § 8114(e), which specifically excludes overtime pay in determining a claimant’s pay
rate. Application of the Shadrick formula initially involves dividing the current actual earnings
by the current pay rate for the date-of-injury position. The current pay rate for the date-of-injury
position is the current base annual pay for the same grade and step as the date-of-injury position.9
According to the employing establishment, in this case the current pay rate was $50,723.00. If
current actual earnings are less than 100 percent of this amount, then the percentage is applied to
the “pay rate for compensation purposes,” which is determined under 5 U.S.C. §§ 8101(4) and
8114.10 In this case the initial comparison of appellant’s earnings with the date-of-injury
5

Id. at Chapter 2.814.7(a) (July 1997).

6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403(d).

8

See Gregory A. Compton, 45 ECAB 154 (1993).

9

See Lottie M. Williams, 56 ECAB 302, 306 (2005).

10

20 C.F.R. § 10.403(e) provides that the employee’s wage-earning capacity in terms of dollars is computed by
first multiplying the pay rate for compensation purposes by the percentage of wage-earning capacity. 20 C.F.R.
§ 10.5(s) defines pay rate for compensation purposes as the employee’s pay as determined under 5 U.S.C. § 8114.

4

position current salary (Level 1, Step G), results in a percentage greater than 100. Therefore
there is no loss of wage-earning capacity in this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Act provides that, if there is permanent disability involving the loss
or loss of use of a member or function of the body, the claimant is entitled to a schedule award
for the permanent impairment of the scheduled member or function.11 Neither the Act nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.12 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A.,
Guides.13
ANALYSIS -- ISSUE 2
An attending physician, Dr. Lehman, opined in a July 7, 2009 report that appellant had a
25 percent left leg permanent impairment under the sixth edition of the A.M.A., Guides. He
identified Table 16-3, although he did not specifically explain how he applied this table. The
Office medical adviser provided a more detailed explanation regarding the application of Table
16-3. Under this table a good result from a total knee replacement is a Class (CDX) 2
impairment with a 25 percent leg impairment as the default value.14 As the A.M.A., Guides
explain, the default value may be adjusted based on grade modifiers for functional history
(GMFH), physical examination (GMPE) and clinical studies (GMCS). The formula for net
adjustment is (GMFH - CDX) + (GMPE – CDX) + (GMCS – CDX).15 In this case the Office
medical adviser found a grade modifier of one (mild problem) for functional history and physical
examination, with a grade modifier of four (very severe problem) for clinical studies. Applying
the formula results in -1 +-1 + 2 = 0, resulting in no net adjustment to the default value.
Based on the probative medical evidence and application of the sixth edition of the
A.M.A., Guides, the Board finds the Office properly determined that appellant had a 25 percent
left leg permanent impairment. The number of weeks of wage-loss compensation for a schedule
award is determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use
of the leg, the maximum number of weeks of compensation is 288 weeks. Since appellant’s
impairment was 25 percent, he is entitled to 25 percent of 288 weeks or 72 weeks of compensation.
It is well established that the period covered by a schedule award commences on the date that the
11

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
12

A. George Lampo, 45 ECAB 441 (1994).

13

FECA Bulletin No. 09-03 (issued March 15, 2009).

14

A.M.A., Guides 511, Table 16-3.

15

Id. at 521.

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employee reaches MMI from residuals of the employment injury.16 In this case, the Office
medical adviser concluded that the date of maximum medical improvement was July 16, 2008,
approximately one year after surgery when restrictions were considered permanent. The award
therefore properly runs for 72 weeks commencing on July 16, 2008.
On appeal, appellant reiterates his argument that there was a delay in processing his
schedule award and he should not be penalized for such delay. He stated that he would have had
a greater impairment under the fifth edition of the A.M.A., Guides. The Board notes that while
appellant filed a CA-7 form in August 2008, he did not submit a report from Dr. Lehman until
April 8, 2009. Office procedures require additional development regarding a schedule award,
including referral to an Office medical adviser.17 There was no unreasonable delay in
developing a schedule award issue. As noted above, all schedule award decisions issued after
May 1, 2009 are based on the sixth edition of the A.M.A., Guides, and the July 14, 2009 Office
decision was properly determined under the sixth edition in this case.
CONCLUSION
The Board finds that the Office properly determined appellant’s wage-earning capacity
pursuant to 5 U.S.C. § 8115. The Board further finds that appellant did not establish more than a
25 percent left leg permanent impairment.

16

Albert Valverde, 36 ECAB 233, 237 (1984).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2009 is affirmed.
Issued: March 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
AGENCIES, New Cumberland, PA, Employer
__________________________________________

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Appearances:
Randolph Elliott, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0526
Issued: November 20, 2015

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 January 9, 2015 appellant, through her representative, filed a timely appeal from a
September 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a work-related
incident in the performance of duty on June 11, 2013.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated October 8, 2015, the Board denied the request, finding that the arguments on
appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket
No. 15-0526 (issued October 8, 2015). The Board’s Rules of Procedure provide that any appeal in which a request
for oral argument is not granted by the Board will proceed to a decision based on the case record and any pleadings
submitted. 20 C.F.R. § 501.5(b).

On appeal appellant’s representative asserts that the medical evidence of record is
sufficient to establish fact of injury and that an OWCP hearing representative committed error in
modifying the decision to reflect that the evidence did not establish that the injury occurred at the
time, place, and in the manner alleged, thus not allowing appellant the opportunity to answer this
contention.
FACTUAL HISTORY
On June 26, 2013 appellant, then a 36-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on June 11, 2013 she sustained a lumbar
strain/sprain, tear, and bulging disc when lifting and moving a box at work. Afterward, she
noticed soreness, tightening, and stiffness in her lower back. The employing establishment
controverted the claim, stating that causal relationship had not been established. In a June 20,
2013 statement, appellant maintained that on June 11, 2013 she arrived at work symptom free,
and that around her lunch break, she noticed soreness, tightening, and stiffness in her lower back
after she picked up a box and moved it. She stated that she was beginning her menstrual cycle,
but that the pain was more severe than usual, and that when her cycle ended on June 18, 2013
she became concerned because the back pain was increasing in severity. Appellant then reported
the injury to her supervisor.
By letter dated July 12, 2013, OWCP informed appellant of the evidence needed to
support her claim. This was to include a physician’s opinion, supported by a medical
explanation, as to how the reported work incident caused or aggravated a medical condition.
On June 20, 2013 J.T. Crook, of the employing establishment office of safety and
occupational health, acknowledge that appellant reported the claimed June 11, 2013 incident to
her supervisor on June 18, 2013. He noted that she complained of mild back pain on June 11,
2013 but continued to work. Mr. Crook advised that appellant was diagnosed with a herniated
disc and put on restricted duty of no lifting over 10 pounds. He maintained that the injury might
be considered a cumulative injury and it would be more appropriate for appellant to file an
occupational disease claim.
Medical evidence submitted in support of appellant’s claim includes a June 19, 2013
report in which Dr. Michael B. Furman, Board-certified in physical medicine and rehabilitation
and pain medicine, reported that appellant’s pain began on approximately June 11, 2013, but that
she did not remember any specific event. He noted that her job entailed repetitive packing and
lifting up to 40 pounds and that she was currently working full time without restrictions.
Dr. Furman found lower lumbosacral spine tenderness and diminished range of motion and
diagnosed neuritis or radiculitis of the thoracic or lumbosacral spine, and lumbar intervertebral
disc displacement without myelopathy. He recommended a magnetic resonance imaging (MRI)
scan and medication, and advised that appellant should avoid excessive twisting, pulling, and
bending at work, with a 20-pound weight restriction.
A June 20, 2013 MRI scan of the lumber spine demonstrated degenerative disc disease
with a central annular fissure and a bulging disc at L5-S1 that mildly compressed the thecal sac.

2

In a report dated June 25, 2013, Dr. Furman noted appellant’s continued complaints of
back pain and that she was working modified duties. He discussed the MRI scan study findings,
described her physical examination, and provided work limitations of occasional stooping,
bending, rotating, twisting, and lifting, with carrying, pushing, and pulling limited to 20 pounds.
Dr. Furman advised that appellant’s acute flare of pain was most likely from disc herniation and
opined, “based on the history, it is work related.” On an attending physician’s report dated
July 1, 2013, he reiterated his diagnosis and checked a form box marked “yes,” indicating that
the diagnosis was work related, stating that it was caused or aggravated by “repetitive lifting
twisting activities.” Dr. Furman repeated his restrictions on a duty status report that day. In
reports dated July 2, 2013, he described appellant’s examination findings and treatment, and
continued work restrictions.
On July 9, 2013 Dr. James Gilhool, also Board-certified in physical medicine and
rehabilitation and pain medicine and an associate of Dr. Furman, performed an epidural steroid
injection. On July 11, 2013 Dr. Furman reported that the epidural injection only briefly relieved
appellant’s back pain. He repeated his work limitations, with a 10-pound weight restriction.
By decision dated August 19, 2013, OWCP found that appellant established that the
claimed employment incident occurred on June 11, 2013 as alleged, but denied the claim because
the medical evidence did not demonstrate that a diagnosed condition was causally related to the
accepted incident.
Appellant timely requested a hearing before an OWCP hearing representative and
submitted medical evidence previously of record. On August 26, 2013 Dr. Furman reported her
complaint of low back pain and that she continued to work limited duty. He described
appellant’s report that she recalled lifting a box on June 11, 2013 and that she felt that this could
be what initially caused her pain. Dr. Furman continued the 10-pound weight restriction and
advised that, “by history, it still sounds as though the pain began with a work-related event.” On
September 23, 2013 he reported persistent low back pain. Dr. Furman increased appellant’s
lifting restriction to 20 pounds. On October 28, 2013 he noted that she had no low back pain for
three weeks and that she felt that she could return to full duty, with a 40-pound lifting restriction.
At the hearing held on July 10, 2014 appellant’s representative stated that the box
appellant lifted on June 11, 2013 was 16 x 16 x 16 and weighed 35 pounds. He referenced an
addendum report from Dr. Furman. Appellant testified that she knew something happened to her
back when she lifted the box because she had never before felt that kind of pain. She stated that
on June 18, 2013 she first visited Dr. W. Scott Wolfe, a Board-certified family physician, and
that he referred her to Dr. Furman. The hearing representative advised appellant to submit
Dr. Wolfe’s report and informed her of the medical evidence needed to support her claim. The
record was held open for 30 days.
Dr. Furman later tries to clarify his June 19, 2013 treatment note. First on August 26,
2013, he had advised that the June 19, 2013 note should have read that appellant “has a repetitive
job of packing. [Appellant] thinks [the injury] may have occurred on the job because of this
activity.” Dr. Furman indicated that a comment denying trauma should not have been included
in that earlier treatment note. On September 6, 2013 he stated, “To clarify: Based on the history

3

and mechanism, this is a work-related injury.” Then on August 15, 2014 Dr. Furman clarified by
stating appellant “experienced pain after lifting a large box at work.”
By decision dated September 25, 2014, an OWCP hearing representative modified the
August 19, 2013 decision to reflect that appellant failed to establish that she sustained a
traumatic injury at the time, place, and in the manner alleged. The hearing representative noted
that she continued to work regular duty until June 20, 2013, did not report the injury, did not
seek medical care for over a week, and that she failed to submit the initial treatment records from
her family physician as requested. He further found that Dr. Furman did not initially support that
appellant sustained a traumatic injury, noting that he indicated that her condition was likely due
to repetitive work activities, and it was only in August 2014, over a year after her initial office
visit, that she reported that she had experienced pain after lifting a box. The hearing
representative concluded that Dr. Furman had failed to explain why his initial notes did not
contain that information and/or why he had advised that her condition was related to her
repetitive duties. He affirmed the August 19, 2013 decision as modified.
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. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place, and in the

3

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

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Supra note 3.

4

manner alleged, or whether the alleged injury was in the performance of duty,6 and OWCP
cannot find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order
to establish the fact that an employee sustained an injury in the performance of duty, as alleged,
but the employee’s statements must be consistent with surrounding facts and circumstances and
his or her subsequent course of action.7
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 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 employee.9 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant did not establish fact of injury because inconsistencies in
the evidence cast serious doubt as to whether the specific claimed event or incident occurred at
the time, place, and in the manner alleged. Appellant has failed to establish a work-related
June 11, 2013 incident causing injury to her lower back, as alleged.
Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may cast doubt on an employee’s statements in determining whether he or she
has established his or her claim.11
In the case at hand, appellant did not file a claim for the alleged traumatic injury until
June 26, 2013, more than two weeks after the claimed June 11, 2013 injury. She did not seek
medical treatment until June 18, 2013. Appellant submitted no witness statements regarding the
claimed June 11, 2013 lifting incident, and continued to work full duty until she saw Dr. Furman
on June 19, 2013. She continued to work modified duty thereafter. The hearing representative
advised appellant to provide the June 18, 2013 reports from Dr. Wolfe, but she did not do so.
These factors cast doubt on her assertion that she injured her back while lifting a box on
June 11, 2013.
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Joseph H. Surgener, 42 ECAB 541 (1991).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

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

11

See Constance G. Patterson, 41 ECAB 206 (1989).

5

In a June 20, 2013 statement, appellant maintained that on June 11, 2013 she noticed
soreness, tightening, and stiffness in her lower back when she picked up a box and moved it.
She stated that she was beginning her menstrual cycle, but that the pain was more severe than
usual, and when her cycle ended on June 18, 2013 she became concerned because the back pain
was increasing in severity. Appellant then reported the injury to her supervisor.
The employing establishment controverted the claim. On June 20, 2013 Mr. Crook noted
that appellant did not report the claimed June 11, 2013 incident to her supervisor until
June 18, 2013. He related that she reported having experienced mild back pain on June 11, 2013,
but continued to work, and that after she was diagnosed with a herniated disc, she was placed on
restricted duty of no lifting over 10 pounds. Mr. Crook maintained that the injury might be
considered a cumulative injury, and it would be more appropriate to file an occupational disease
claim.
Appellant submitted a number of reports from Dr. Furman, an attending physiatrist,
beginning on June 19, 2013, eight days after the claimed incident. Dr. Furman initially noted her
report that back pain began on approximately June 11, 2013 but that she did not remember any
specific event, and that her job entailed repetitive packing and lifting up to 40 pounds. On
June 25, 2013 he advised that appellant’s acute flare of pain was most likely from disc herniation
and opined, “based on the history, it is work related.” On an attending physician’s report dated
July 1, 2013, Dr. Furman reiterated his diagnosis and checked a form box “yes,” indicating that
the diagnosis was work related, stating that it was caused or aggravated by “repetitive lifting
twisting activities.” On August 26, 2013 he described appellant’s report that she recalled lifting
a box on June 11, 2013 and she felt that this could be what initially caused her pain. Dr. Furman
stated that his comment denying trauma should not have been included in the treatment note. On
September 6, 2013, he stated, “To clarify: Based on the history and mechanism, this is a workrelated injury.” On August 15, 2014 Dr. Furman stated that she “experienced pain after lifting a
large box at work.”
The Board finds that Dr. Furman’s reports only recite the facts as told to him and do not
offer any independent evidence that appellant injured her back when lifting a box on
June 11, 2013. As described above, Dr. Furman either merely found that her condition was work
related without further explanation, or that her condition was caused by repetitive lifting. He did
not specifically describe the June 11, 2013 incident or explain how it caused appellant’s
condition in any of his reports.12 Dr. Furman’s opinion is, therefore, of limited probative value
in supporting that the lifting incident occurred on that day.13
Given the absence of evidence regarding how appellant sustained the claimed injury, the
Board finds that she did not meet her burden of proof to establish fact of injury. As appellant did

12

As noted above, OWCP regulations define a traumatic injury as a condition of the body caused by a specific
event or incident or series of events or incidents within a single workday or shift. 20 C.F.R. § 10.5(ee).
13

See D.T., Docket No. 15-143 (issued February 18, 2015).

6

not establish an incident as alleged, the Board need not discuss the probative value of the
medical evidence submitted regarding causal relationship.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a workrelated incident in the performance of duty on June 11, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2014 is affirmed.
Issued: November 20, 2015
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

14

Paul Foster, 56 ECAB 208 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Denver, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1900
Issued: October 27, 2020

Case Submitted on the Record

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

JURISDICTION
On September 15, 2019 appellant filed a timely appeal from a September 11, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish respiratory
conditions, bronchitis, and headaches causally related to the accepted employment exposure.
FACTUAL HISTORY
On February 4, 2019 appellant, then a 49-year-old special agent, filed an occupational
disease claim (Form CA-2) for respiratory issues/bronchitis, loss of voice, and
1

5 U.S.C. § 8101 et seq.

headaches/migraines that she attributed to exposure to bacteria in the ventilation system when
working from January to December 2018 in the Cyber Squad offices. She indicated that she first
became aware of her condition on January 17, 2018 and first realized its relation to factors of her
federal employment on December 20, 2018.
In a narrative statement dated January 17, 2019, appellant indicated that she had moved
her workspace into newly-remodeled office space on December 21, 2017. Starting in early
January 2018, she began suffering from daily migraines, usually starting in the afternoon.
Appellant reported that she had suffered from migraines for years, but her prior headaches rarely
started in the afternoon and were never at such regularity or severity. She noted that on January 21,
2018 she was sick and was diagnosed with bronchitis and thereafter remained on leave for 22 days.
Appellant continued to work from February 26 to March 30, 2018, but continued to feel ill and she
indicated that she had lost her voice and that the afternoon headaches/migraines continued. She
attributed the cause of her illness and migraines to stresses at the workplace and had not considered
that it could have been the office space itself until after her numerous physician’s visits.
In a February 19, 2018 report, Dr. Judy Lane, a Board certified neurologist, diagnosed
chronic migraine without aura, intractable, with status migrainosus; cervicalgia of occipito-atlantoaxial region; medication overuse headache; and primary insomnia. She noted that appellant had
reported headaches over the prior 15 years with increased frequency, duration, and severity causing
moderate-to-significant dysfunction.
On February 21, 2018 Dr. Marsha M. Manning, a Board-certified internist, indicated that
appellant had been ill for approximately three to four weeks and first had significant myalgia and
a severe acute bronchitis, as well as a severe cough and severe hoarseness with almost no voice,
which could have been pertussis. She diagnosed migraine headaches, which appellant had for
multiple years and significant insomnia.
A computerized tomography (CT) scan of the maxillofacial/sinuses performed on
December 6, 2018 was unremarkable. A CT of the chest performed on December 11, 2018 showed
a benign five-millimeter right lower lobe calcified granuloma, but was otherwise unremarkable.
A pulmonary function report dated December 11, 2018 demonstrated normal spirometric values
indicating the absence of any significant degree of obstructive pulmonary impairment and/or
restrictive ventilator defect.
In reports dated December 11 and 20, 2018, Dr. David L. Goodman, a Board-certified
allergist and immunologist, diagnosed cough, dermatographic urticarial, dyspnea, and chronic
rhinitis. He indicated that appellant had been ill since September 2018 and had reported a
persistent cough for most of the year, with no response to numerous courses of oral and inhaled
medications, including steroids and antibiotics. Appellant missed 12 weeks of work and she
tended to worsen shortly after going back to the office and ascribed it to voice strain. A cough and
fever tended to accompany her return to work, as well. Dr. Goodman noted that appellant was
office-based when at work, but also worked from home at other times. He opined that there was
evidence of past exposure to a known vector of hypersensitivity pneumonitis, with temporal
correlation of evanescent symptom intensity to workplace exposures. Dr. Goodman noted that
there had been a pre-illness renovation of appellant’s workplace and she had been subjected to

2

work exposures as an agent involving raids in buildings with suspect hygiene and “[Heating
Ventilation and Air Conditioning (HVAC)]/mold exposure statuses.”
On December 28, 2018 Dr. Goodman reiterated his opinion that appellant’s recent airway
issues with cough and respiratory distress were related to episodic exposures to thermophilic
actinomycetes bacteria, a known cause of lung hypersensitivity reactions, which may be found in
HVAC systems. He noted that serologic evidence of exposure did not, by itself, prove causation,
but explained that there was circumstantial evidence that asymptomatic sensitization to this
actinomycetes family grain positive rod, a known vector of HP, followed by a respiratory viral
pathogen eliciting bronchial symptoms, could lead to an acute, or subacute, HP presentation.
Dr. Goodman found that appellant’s chest CT scan was absent signs of interstitial lung processes
and her spirometry was normal, after recent prednisone courses in treatment of her acute
respiratory symptoms. He recommended that she not be reexposed to the environment, as
progressive interstitial lung disease and fibrosis could result.
In a development letter dated February 7, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the type of medical
and factual evidence required and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to submit the requested information. It sent a similar letter requesting additional
information from the employing establishment.
In response, appellant submitted a narrative statement dated February 12, 2019 reiterating
the factual and medical history of her claim.
In a pulmonary visit note dated February 15, 2018, Dr. Dominic John Titone, a Boardcertified internist, pulmonologist, and critical care specialist, diagnosed bronchitis, possible mild
intermittent asthma, and history of hives.
In a report dated November 28, 2018, Dr. Brent W. Wieland, a Board-certified infectious
disease specialist, diagnosed chronic bronchitis and fever. He indicated that appellant presented
for an evaluation of recurrent upper respiratory tract infections. Dr. Wieland reported that she had
a history of chronic urticarial, allergic rhinitis, migraines, frequent upper respiratory infections,
and recurrent bronchitis. He reported that appellant had been unable to work for the past few
months due to her illness and had reported several episodes of recurrent bronchitis over the past
few years. Appellant believed that the episodes were occurring more frequently and reported
feeling ill on three separate prolonged courses in 2018.
On December 5, 2018 appellant had followed up with Dr. Wieland for a lab review and he
found that her initial workup was largely unremarkable, with negative infectious testing for
mononucleosis, normal immunoglobulin levels, and normal routine labs. She presented with sinus
congestion, as well as low-grade fevers, sore throat, hoarse voice, and cough.
In a December 11, 2018 report, Dr. Goodman indicated that appellant’s C-reactive protein
(CRP) testing was markedly elevated, but she had had milder CRP elevations in the past.
In a telephone encounter note dated December 17, 2018, Dr. Goodman indicated that
appellant’s labs were significant for “Micropolyspora faeni (A HYPERSENSITIVITY
PNEUMONITIS trigger).” He noted that her work area had been subdivided and renovated
3

months ago and indicated that he would be sending pertinent literature citations and the lab results
to her by mail, and that she would be pursuing an indoor air quality evaluation at her office in
Denver, Colorado. On February 19, 2018 Dr. Goodman indicated that in the standard,
nonindustrial, nonhazardous commercial/government administrative office environment in which
the exposures to thermophilic actinomyces bacteria, no requirement for protective equipment
(respirator, mask) would be stipulated. This was a post-construction exposure that would be totally
unpredictable in a remodeled office build out and hygienically prepared for occupancy under
applicable OSHA rules. Dr. Goodman opined that appellant’s claimed exposure or contact
occurred during the performance of duties in what was presumed to be an environment that had
been successfully remodeled for nonhazardous use. He indicated that no “precautions to take,”
nor “hazards of use” would have been typical for reoccupation of such a space.
In a hospital report dated February 18, 2019, Dr. Christopher Brian Mawn, a Board
certified plastic surgeon and otolaryngologist, diagnosed conditions including hoarseness of voice
and fatigue. On March 5, 2018 he diagnosed vocal cord dysfunction, following chronic bronchitis
in January 2018.
In a January 17, 2019 narrative statement, appellant reiterated the factual and medical
history of her claim and submitted a blood panel dated November 1, 2018.
On December 11, 2018 Dr. Goodman indicated that appellant had a very challenging health
year in 2018, with a persistent cough for most of the year, and opined that, in the face of a negative
allergy evaluation, her history was most suggestive of a postviral process.
In a letter dated February 27, 2019, the employing establishment indicated that appellant
moved to a new office on January 7, 2019 after working in an area of new construction which she
believed to be the cause of her medical conditions. It further indicated that, air quality testing of,
her workspace was conducted on February 4 and 11, 2019 and found to be within recommended
guidelines on the dates of testing, but complaints of a respiratory irritant were made by two
separate special agents, D.W. and R.W., neither of whom had knowledge of appellant’s illness.
The employing establishment noted that appellant did not wear a mask or respirator to conduct her
daily activities in the office and after her physician provided information and a diagnosis on her
condition and possible exposure to a respiratory irritant, she moved offices to reduce her exposure.
It submitted a position description and the Limited Indoor Air Quality Assessment dated
February 20, 2019.
In a February 28, 2019 report, Dr. Manning indicated that Dr. Goodman’s diagnosis was
made based on blood test results showing exposure to Saccharopolyspora rectivirgula (formerly
Micropolyspora faeni) bacteria/organism. Since moving to a different office space in another
building in January 2019, appellant had not shown a recurrence of prior symptoms which included
significant respiratory issues including bronchitis, laryngitis, fatigue, insomnia, and migraine
headaches, according to Dr. Manning. Dr. Manning explained that given that appellant had shown
recovery since appellant was no longer exposed to her former office space environment and given
the diagnosis made by Dr. Goodman, that the former office space was the source of appellant’s
illness.

4

By decision dated March 12, 2019, OWCP denied appellant’s claim. It accepted that she
was working in a newly remodeled office space as described, but denied her claim finding that the
medical evidence of record failed to establish causal relationship between the accepted
employment exposure and a diagnosed condition. OWCP concluded therefore that the
requirements had not been met to establish an injury as defined by FECA.
On June 13, 2019 appellant requested reconsideration and submitted a narrative statement
indicating that the symptoms she experienced from January to December 2018 completely
disappeared after her removal from the renovated office space in early January 2019. In addition,
since her retirement in May 2019, appellant had been in her residence daily and had experienced
none of her prior symptoms. In support of her claim, she also submitted an article on the topic of
actinomycetes and mycobacteria and an e-mail correspondence dated June 3, 2019 from M.H.
indicating that a separate sampling would be needed to detect thermophilic actinomycetes
organisms.
In a report dated May 20, 2019, Dr. Goodman indicated that the February 20, 2019 air
quality testing was a limited observational assessment of a functional workspace, and thus did not
specifically address the microbiological environment within that workspace. He opined that
appellant presented with a symptom complex quite typical of cluster 1 acute/subacute
hypersensitivity pneumonitis and had recurrent/remitting with avoidance/relapsing symptoms of
malaise, chills, and cough, accompanied by a normal chest imaging and serologic evidence of
sensitization to Saccharopolyspora rectivirgula.
Dr. Goodman concluded that absent
incontrovertible bacteriologic evidence to the contrary, her condition was work related.
By decision dated September 11, 2019, OWCP denied modification of its prior March 12,
2019 decision finding that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed conditions and the accepted factors of her federal
employment. It noted that she had been working in a newly renovated office space and had been
exposed to a contaminated HVAC system, but she had been exposed to many airborne substances
on a daily basis and the medical evidence did not provide enough probative and substantial
evidence to support that her condition(s) resulted from being exposed to the newly remodeled
workspace, in general, or the HVAC system, in particular.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2

Id.

3
E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

5

to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 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.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.9
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of medical reports from her attending
physician, Dr. Goodman. In his reports, Dr. Goodman provided a proper factual and medical
history of injury, noting that there had been a pre-illness renovation of her workplace and she had
been subjected to work exposures as an agent involving raids in buildings with suspect hygiene
4

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
7

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

9

E.W., supra note 3; Gary L. Fowler, 45 ECAB 365 (1994).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

6

and HVAC/mold exposure statuses. On December 28, 2018 he reiterated his opinion that
appellant’s recent airway issues with cough and respiratory distress were related to episodic
exposures to thermophilic actinomycetes bacteria, and he explained that such bacteria are a known
cause of lung hypersensitivity reactions. Dr. Goodman indicated that the bacteria can be found in
HVAC systems. In his May 20, 2019 report, he cited to the February 20, 2019 air quality testing
and opined that he presented with a symptom complex quite typical of cluster 1 acute/subacute
hypersensitivity pneumonitis and had recurrent/remitting with avoidance/relapsing symptoms of
malaise, chills, and cough, accompanied by a normal chest imaging and serologic evidence of
sensitization to Saccharopolyspora rectivirgula. Dr. Goodman also indicated that while serologic
evidence of exposure did not, by itself, prove causation, he opined that there was circumstantial
evidence that asymptomatic sensitization to this actinomycetes family grain positive rod, a known
vector of HP, followed by a respiratory viral pathogen eliciting bronchial symptoms, could lead to
an acute, or subacute, HP presentation. He clarified that the blood test results were consistent with
the noted exposures. Based on his medical findings, Dr. Goodman concluded that appellant’s
workplace air exposures were the cause of her diagnosed conditions.
The Board finds that the reports from Dr. Goodman are sufficient to require further
development of the medical evidence in this claim. Dr. Goodman is a physician in the appropriate
field of medicine and is therefore qualified to render rationalized opinions on the issue of causal
relationship and he exhibited a comprehensive understanding of the medical record and case
history. His reports provide a rationalized explanation as to how appellant’s exposures to
contaminants in her renovated office space at work resulted in her diagnosed respiratory conditions
including bronchitis and headaches. The Board has long held that it is unnecessary that the
evidence of record in a case be so conclusive as to suggest causal connection beyond all possible
doubt. Rather, the evidence required is only that necessary to convince the adjudicator that the
conclusion drawn is rational, sound, and logical.11 Thus, Dr. Goodman’s medical opinions as set
forth in his series of reports are found to be rationalized and logical and are sufficient to require
further development of appellant’s claim.12
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14

11

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28,
2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
12

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
13

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
14
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

7

On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate respiratory specialist. The chosen physician shall provide a rationalized
opinion as to whether the diagnosed conditions are causally related to the accepted factors of
appellant’s federal employment. If the physician opines that the diagnosed conditions are not
causally related to the accepted employment exposure, he or she must explain, with rationale, how
or why the opinion differs from that of Dr. Goodman. Following this and other such other further
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8