United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lincolnton, NC, Employer
__________________________________________

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

Docket No. 13-1961
Issued: April 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 26, 2013 appellant filed a timely appeal of a March 22, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) concerning a schedule award. The
Board also has jurisdiction over a June 12, 2012 nonmerit decision denying reconsideration.
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 and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant established that he is entitled to a greater than 10
percent impairment of the left arm and one percent impairment for his left leg, for which he
received schedule awards; and (2) whether OWCP properly refused to reopen his case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a June 14, 2011 decision, the Board
affirmed a June 9, 2010 decision of OWCP’s hearing representative, which affirmed a
December 22, 2009 schedule award decision for a six percent permanent impairment of
appellant’s left hand.2 In affirming OWCP’s decision, the Board found that OWCP properly
relied upon the opinions of Dr. Donald McQueen, a second opinion Board-certified orthopedic
surgeon and an OWCP medical adviser, that appellant had no more than a 30 percent impairment
of the left index finger, which was converted to a 6 percent impairment of the left hand.3 The
facts and circumstances as set forth in the prior decision are hereby incorporated by reference.4
On February 14, 2012 appellant’s treating physician, Dr. Maher F. Habashi, a Boardcertified orthopedic surgeon, concluded that appellant had an 18 percent impairment of his left
arm. He reported that appellant had limited left shoulder abduction to 140 degrees and
tenderness over the acromioclavicular (AC) joint. In a March 27, 2012 report, Dr. Habashi
concluded that appellant had an eight percent impairment of the left leg based on tenderness to
palpations over medial joint line of the left knee, crepitus and increased pain with activities.
OWCP’s medical adviser concluded on April 25, 2012 that there was no basis for
Dr. Habashi’s finding of eight percent impairment of the left leg. He explained that there were
no diagnostic studies, no objective evidence to support the impairment rating and no explanation
to support the rating. The medical adviser concluded that, based on Table 16-3, page 509 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), appellant had a class 1 impairment due to soft tissue injury contusion, resulting in one
percent impairment of the left lower extremity. Additionally, based on Table 15.5, page 403 of
the A.M.A., Guides, he concluded that appellant had a class 1 impairment due to arthritis of the
AC joint, resulting in a 10 percent impairment of the left upper extremity.
In a decision dated May 9, 2012, OWCP granted appellant a schedule award for a 10
percent impairment of his left arm, minus the 5 percent previously paid, for an additional
schedule award of 5 percent impairment to the left arm.5 It also granted him a schedule award

2

Docket No. 10-1850 (issued June 14, 2011).

3

OWCP’s hearing representative, in a June 16, 2009 decision, had set aside a March 6, 2009 schedule award for a
five percent impairment of appellant’s left arm. When issuing the December 22, 2009 schedule award, OWCP
noted that Dr. McQueen found that appellant had not reached maximum medical improvement with regards to the
injuries to his left knee and shoulder and, thus, the case was not in posture for an impairment rating relative to these
affected areas.
4

On November 30, 2005 appellant, then a 39-year-old city carrier, filed a traumatic injury claim alleging that on
that day he sustained injuries to his whole body due to a motor vehicle accident. OWCP accepted the claim for a
cervical sprain and thoracic sprain, which was subsequently expanded to include the conditions of cerebral
concussion, left knee internal derangement, left shoulder, hand and knee contusions and left supraspinatus partial
tear.
5

OWCP noted that the prior schedule award, for a six percent impairment to the left hand, was converted to a five
percent impairment of the left arm.

2

for one percent impairment to his left leg. The number of weeks was 18.48 and the period of the
award was February 14 to June 22, 2012.
On May 14, 2012 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on September 13, 2012.
By decision dated November 28, 2012, OWCP’s hearing representative affirmed the
May 9, 2012 schedule award decision.
On December 4, 2012 appellant requested reconsideration and submitted a
November 1, 2012 impairment rating by Dr. Habashi in support of his request. In a November 1,
2012 report, Dr. Habashi noted an employment injury date of November 30, 2005 and injuries of
lumbar and cervical strains; left knee internal derangement; left wrist and hand contusion; and
left shoulder contusion with rotator cuff tear. He stated that appellant reached maximum medical
improvement on February 14, 2012 for his left shoulder and March 27, 2012 for his left knee.
Dr. Habashi concluded that appellant had an 18 percent permanent impairment of the left arm
pursuant to the A.M.A., Guides. Using Table 15-34, page 475, he assigned class 1 for limited
motion and muscle weakness which resulted in a 10 percent impairment. Next, Dr. Habashi
determined that there was a five percent impairment for pain using Table 3-1, page 40. He then
concluded that distal clavicle bone loss was a class 1 using Table 15-5, page 403, resulting in a
three percent impairment. Dr. Habashi then combined these impairment ratings to find a total 18
percent permanent impairment of the left arm. He determined that appellant had an eight percent
permanent impairment of the left leg based on a three percent impairment for pain using Table
3-1, page 40 and a five percent impairment for muscle weakness and finding of meniscus tear by
magnetic resonance imaging (MRI) scan using Table 16-3, page 509.
On February 28, 2013 OWCP’s medical adviser reviewed Dr. Habashi’s
November 1, 2012 impairment rating and concluded that appellant was not entitled to an
additional schedule award. He noted that no new findings were presented warranting an
additional schedule award. The medical adviser also noted that claims for pain and muscle
weakness claims are subjective and nonverifiable.
By decision dated March 22, 2013, OWCP denied appellant’s request for an additional
schedule award.
On May 31, 2013 appellant requested reconsideration.
By decision dated June 12, 2013, OWCP denied appellant’s reconsideration request.6

6

The Board notes that, following the June 12, 2013 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time it issued its final decision. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

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LEGAL PRECEDENT
Under section 8107 of FECA7 and section 10.404 of the implementing federal
regulations8 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.14 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.15
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
11

Id. at 383-419.

12

Id. at 411.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
14

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
15

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

4

ANALYSIS
OWCP accepted the claim for cervical sprain, thoracic sprain, cerebral concussion, left
knee internal derangement, left shoulder, hand and knee contusions and left supraspinatus partial
tear. On December 22, 2009 it granted appellant a five percent impairment of his left arm. By
decision dated May 9, 2012, OWCP granted him an additional 5 percent impairment for his left
arm, for a total 10 percent impairment of the left arm. It also granted appellant a one percent
impairment for his left leg. It is his burden of proof to establish increased impairment as
determined under the sixth edition of the A.M.A., Guides.
In a November 1, 2012 report, Dr. Habashi concluded that appellant had an 18 percent
left arm impairment using the A.M.A., Guides. Using Table 15-34, page 475, he assigned class
1 for limited motion and muscle weakness, resulting in a 10 percent impairment. Next,
Dr. Habashi found a five percent impairment for pain using Table 3-1, page 40. Using Table 155, page 403, he assigned class 1 for appellant’s distal clavicle bone loss, which resulted in a three
percent impairment. Dr. Habashi then combined these impairment ratings to find a total 18
percent permanent impairment of the left arm. He also determined that appellant had an eight
percent permanent impairment of the left leg based on a three percent impairment for pain using
Table 3-1, page 40 and a five percent impairment for muscle weakness and finding of meniscus
tear by MRI scan using Table 16-3, page 509. In a February 28, 2013 report, OWCP’s medical
adviser reviewed Dr. Habashi’s report and concluded that appellant was not entitled to an
additional schedule award as there were no new findings supportive of an additional award.
The Board finds there is an unresolved conflict in the medical opinion evidence
concerning the extent of permanent impairment arising from appellant’s accepted employment
injury. OWCP’s medical adviser concluded that appellant was not entitled to an additional
schedule award for his left arm and left leg while Dr. Habashi found appellant was entitled to an
additional schedule award for his left arm and left leg using the A.M.A., Guides. Therefore, in
order to resolve the conflict in the medical opinions, the case will be remanded to OWCP for
referral of the case record, including a statement of accepted facts, and, if necessary, appellant, to
an impartial medical specialist for a determination regarding the extent of appellant’s left arm
and left leg impairments as determined in accordance with the relevant standards of the A.M.A.,
Guides. After such further development as OWCP deems necessary, a de novo decision should
be issued regarding the extent of appellant’s left arm and left leg impairments.
CONCLUSION
The Board finds that this case is not in posture for a decision due to an unresolved
conflict in medical opinion evidence. In view of the Board’s decision on the first issue, the
second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs’ dated June 12 and March 22, 2013 are set aside and the case remanded
for further proceedings consistent with the above opinion.
Issued: April 22, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 09-51
Issued: July 13, 2009

Case Submitted on the Record

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

JURISDICTION
On October 6, 2008 appellant filed a timely appeal from a February 26, 2008 schedule
award decision of the Office of Workers’ Compensation Programs and a July 15, 2008 wageearning capacity decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has more than 34 percent permanent impairment of
the right upper extremity; and (2) whether the Office properly determined that her actual
earnings fairly and reasonably represented her wage-earning capacity.
FACTUAL HISTORY
On September 16, 2004 appellant, then a 45-year-old labor custodian, sustained injury to
her right shoulder and neck when she lifted up a wet rug. The Office accepted her claim for right
shoulder and cervical strains with cervical and lumbar displacement. It authorized spinal disc
surgery and fusion, which occurred on April 3, 2006.

In an August 31, 2006 report, Dr. Basil M. Yates, an attending Board-certified
neurologist, released appellant to return to limited-duty work for six hours a day. Appellant’s
restrictions included lifting no more than 30 pounds eight times an hour.
On September 6, 2006 the employing establishment offered appellant a limited-duty
position as a custodian working six hours a day at a yearly salary of $40,484.00. The offer was
based on Dr. Yates’ August 31, 2006 work restrictions. The tour of duty was 9:30 a.m.
to 3:30 p.m. with Sunday and Monday as days off. Physical requirements of the position
included three to four hours of lifting and carrying nor more than 30 pounds; four to six hours of
standing and walking; three to four hours of pushing and pulling; and one to two hours of
reaching above the shoulder. The duties of the position included sweeping floors, removing
trash from the work area and cleaning the bathrooms. Appellant accepted the position on
September 8, 2006 and began working a six-hour schedule.
On March 8, 2007 Dr. Yates found that appellant was capable of working eight hours a
day with the noted physical restrictions. On May 1, 2007 the employing establishment offered
appellant limited duty as a custodian for eight hours earning $41,835.00 a year. The hours of the
position were 08:50 to 17:00 effective March 28, 2007. Physical requirements of the position
included three to four hours of lifting and carrying nor more than 30 pounds; four to six hours of
standing and walking; three to four hours of pushing and pulling; up to one hour of simple
grasping; and one to two hours of reaching above the shoulder. The duties of the position
included cleaning carrier cases and sweeping floors, removing trash from the work area, cleaning
the break room area and bathrooms and picking up papers and trash from the grounds. Appellant
accepted the position on May 1, 2007.
On May 22, 2007 appellant filed a claim for a schedule award.
On November 21, 2007 Dr. Yates advised that appellant had 34 percent impairment to
her right upper extremity due to motor and sensory deficit involving the C5 and C6 nerve roots.
Under Table 15-17, he noted that the maximum impairment for sensory deficit involving the C5
nerve root was five percent and for the C6 nerve root was eight percent. Dr. Yates utilized Table
15-15 to grade the extent of sensory loss as Grade 3 or 50 percent. This resulted in sensory
impairment of 2.5 percent, rounded to 3 percent for the C5 nerve root and 4 percent for the C6
nerve root. Combining these nerve root impairments resulted in a total of seven percent
impairment for sensory loss or pain. Dr. Yates noted that for loss of strength Table 15-17
provided maximum impairment of 30 percent for the C5 nerve root and 35 percent for the
C6 nerve root. Utilizing Table 15-16 to grade the extent of loss of power, he advised that
appellant had Grade 3 or 50 percent loss. This resulted in strength loss of 15 percent for the C5
nerve root and 17 percent for the C6 nerve root.1 Utilizing the Combined Values Chart,
Dr. Yates stated that this resulted in total loss of strength of 32 percent. He then combined the
7 percent sensory loss with the 32 percent loss of strength to find total impairment of 34 percent.
Dr. Yates noted that pain was factored in under the sensory deficit loss.
In a January 4, 2008 report, the Office medical adviser agreed with the impairment rating
of Dr. Yates.
1

The Board notes that 17.5 should be rounded up to 18 percent under Office protocols.

2

In a decision dated February 26, 2008, the Office issued a schedule award for a 34
percent right arm permanent impairment. The period of the award was 106.08 weeks of
compensation from June 11, 2007 to June 22, 2009.
By decision dated July 15, 2008, the Office determined that appellant’s actual earnings in
the full-time modified-duty position fairly and reasonably represented her wage-earning
capacity. It reduced her wage-loss compensation to zero as her actual earnings exceeded the
current wages of her date-of-injury position.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8107 of the Federal Employees’ Compensation Act2 and section
10.404 of the implementing federal regulations,3 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001).4 Has been adopted by the Office and the Board has
concurred in such adoption, as an appropriate standard for evaluating schedule losses.5
Section 15.12 of the fifth edition of the A.M.A., Guides describes a method to be used for
rating impairment to the upper extremities due to sensory and motor loss from unilateral spinal
nerve root impairment.6 The affected nerves are first identified and then the maximum
percentages of impairment allowed for each nerve root is derived from Table 15-17. Thereafter,
Tables 15-15 and 15-16 are used to grade the extent of deficit based on sensory or motor loss.
The severity of the sensory or motor impairment is derived by multiplying the maximum
impairment value of the affected nerve by the grade classification of the sensory or motor loss.7
If there is both sensory and motor loss to a nerve root, the impairment percentages are then
combined.
ANALYSIS -- ISSUE 1
The Office granted appellant a schedule award for 34 percent impairment of her right arm
based on the rating provided by Dr. Yates, who identified impairment affecting the C5 and C6
nerve roots for both sensory loss (pain) and loss of strength. Under the protocols of the A.M.A.,
2

5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

A.M.A., Guides (5th ed. 2001).

5

James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287 (1989); Francis John Kilcoyne,
38 ECAB 168 (1986).
6

Chapter 16 provides alternative tables for rating impairment to the upper extremities.

7

A.M.A., Guides 423; see also B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

3

Guides, the total impairment is derived by first assessing the sensory loss to the affected nerves
and combining that with the strength deficit. Under Table 15-17, Dr. Yates identified the
maximum sensory impairment for the C5 nerve root as five percent and eight percent for the C6
nerve root. He advised that the extent of sensory deficit on examination was 50 percent or Grade
3 as classified under Table 15-15. Multiplying 5 percent by 50 percent totals 2.5 percent, which
is rounded to 3 percent for the C5 nerve root. Multiplying 8 percent by 50 percent totals
4 percent for the C6 nerve root. The total sensory impairment is derived by combining these
values, which is 7 percent. For loss of strength, Dr. Yates noted that 30 percent was the
maximum impairment for the C5 nerve root and 35 percent for the C6 nerve root under
Table 15-17. He utilized Table 15-16 to grade the extent of motor deficit as 50 percent or
Grade 3. Multiplying 30 percent by 50 percent totals 15 percent for the C5 nerve root.
Multiplying 35 percent by 50 percent totals 17.5 percent for the C6 nerve root. The Board notes
that Dr. Yates rounded the C6 nerve root strength impairment down to 17 percent; however, it
should have been rounded up to 18 percent.8 Combining the 15 percent C5 impairment with
18percent C6 impairment totals 30 percent impairment due to loss of strength. As noted, to find
the total impairment to the right upper extremity the Combined Values Chart is used to combine
the 7 percent sensory loss with the 30 percent loss of strength, which totals 35 percent.
The Board finds that the medical evidence of record establishes that appellant has
35 percent impairment to her the right upper extremity. The Office’s schedule award will be
modified to reflect this impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8115(a) of the Act9 provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.10 Generally, wages actually earned are the best measure of a wage-earning capacity
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.11 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision,12 has been codified at 20 C.F.R. § 10.403. The Office 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 job.13 Office procedures provide that the Office can
make a retroactive wage-earning capacity determination if the claimant worked in the position
8

See Laura Heyen, 57 ECAB 435 (2006); Johnnie B. Causey, 57 ECAB 359 (2006). As the Office’s procedure
manual explains, using hearing loss as an example, the number is rounded up from .50 and down from .49. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2) (September 1994).
9

5 U.S.C. § 8115(a).

10

Loni J. Cleveland, 52 ECAB 171 (2000).

11

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

12

5 ECAB 376 (1953).

13

20 C.F.R. § 10.403(c).

4

for at least 60 days, the position fairly and reasonably represented his or her wage-earning
capacity and the work stoppage did not occur because of any change in his injury-related
condition affecting the ability to work.14
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained right shoulder and cervical strains with
cervical and lumbar displacement. Appellant initially returned to modified-duty work for six
hours a day on September 7, 2006. On May 1, 2007 she accepted a job offer as a modified city
carrier for eight hours a day. The record indicates that appellant began working this schedule on
March 28, 2007. On July 15, 2008 the Office confirmed that she continued to work in that
position at a pay rate of $41,835.00 per year.
The Board finds that appellant’s actual earnings as a modified custodian fairly and
reasonably represent her wage-earning capacity. Appellant worked in the position since
March 28, 2007 or more than 60 days and there is no evidence that the position was seasonal,
temporary or makeshift work. She has submitted no medical evidence to show that she could not
work eight hours a day.15 The Office compared appellant’s earnings in the full-time modified
position with current earnings for her date-of-injury job. There is no evidence of record to
establish that her wages in this position do not fairly and reasonably represent her wage-earning
capacity. Appellant’s actual earnings must be accepted as the best measure of her wage-earning
capacity.16
The Board finds that the Office properly determined that appellant had no loss of wageearning capacity based on her actual earnings. The current weekly earnings of $804.52 per week
as a modified custodian was the same as the current weekly wages of the date-of-injury position
as a custodian. Appellant therefore had no loss of wage-earning capacity under the Shadrick
formula.17
CONCLUSION
The Board finds that appellant has 35 percent impairment to her right arm. The Board
further finds that her actual earnings as a modified custodian fairly and reasonably represented
her wage-earning capacity.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (July 1997); Selden H. Swartz, 55 ECAB 272 (2004).
15

J.C., 58 ECAB ____ (Docket No. 07-1165, issued September 21, 2007).

16

Loni J. Cleveland, supra note 10.

17

Albert C. Shadrick, supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2008 schedule award decision of
the Office of Workers’ Compensation Programs is affirmed, as modified and the July 15, 2008
wage-earning capacity decision is affirmed.
Issued: July 13, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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

Docket No. 08-2470
Issued: September 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2008 appellant filed a timely appeal of the August 29, 2008 decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.1
ISSUES
The issues are: (1) whether appellant is entitled to wage-loss compensation for
temporary total disability during the periods October 6, 2005 through September 6, 2006,
September 10 to 30, 2006 and October 7 through November 5, 2006; and (2) whether he is
entitled to compensation for intermittent lost wages during the periods June 24 through
August 18, 2007, November 25 through December 6, 2007 and December 9 to 22, 2007.
1

The record on appeal contains evidence that was received after the Office issued its August 29, 2008 decision.
The Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2 (2008).

FACTUAL HISTORY
This case has previously been before the Board.2 Appellant, a 55-year-old tax examining
technician, has an accepted claim for neck sprain, cervicalgia, cervicobrachial syndrome,
lumbago, lumbar sprain and right knee sprain. His injuries occurred on August 18, 2005 as a
result of a fall at work. Appellant received continuation of pay from August 21 through
October 5, 2005. He worked sporadically between October 2005 and March 2006. On
November 6, 2006 appellant returned to work in a part-time limited-duty capacity as a tax
examiner.3 He worked four hours a day and the Office paid him wage-loss compensation for
four hours each day. Effective February 26, 2007, appellant increased his workday to six hours.4
Thereafter, the Office paid him two hours of wage-loss compensation per day.
Appellant filed various claims for compensation (Form CA-7) covering the period
October 6, 2005 through September 6, 2006, September 10 through 30, 2006 and October 7
through November 5, 2006. During this timeframe, he was under the care of Dr. Colvin.
Appellant was also being treated by a chiropractor and he regularly attended physical therapy,
which Dr. Colvin had prescribed for his neck, low back and right knee.
Appellant first saw Dr. Colvin on October 7, 2005. In an October 14, 2005 report,
Dr. Colvin indicated that he was totally disabled from August 19 through October 12, 2005. He
further indicated that appellant was able to resume regular work effective October 12, 2005.
On January 6, 2006 Dr. Colvin advised that appellant was able to return to work on
January 9, 2006 with restrictions that included no sitting for more than two hours at a time, no
heavy lifting and no bending. He also advised that appellant continue with physical therapy
three times per week for the next four to six weeks.
Dr. Colvin examined appellant on February 23, 2006, at which time he diagnosed
cervical disc disease, cervicalgia, right shoulder and right elbow pain, low back pain, lumbar
myofascitis, lumbar serevent dysfunction and sacroiliac joint disorder. He recommended
continued physical therapy and noted that appellant’s prognosis was fair. Dr. Colvin did not
otherwise address the issue of disability.

2

Docket No. 08-401 (issued January 8, 2009).

3

Appellant’s part-time limited-duty assignment was based on restrictions imposed by Dr. P. Leo Varriale, a
Board-certified orthopedic surgeon and Office referral physician, who examined him on August 21, 2006.
4

The increased work schedule was brought about by the November 14, 2006 report of Dr. David T. Zitner, a
Board-certified orthopedic surgeon and impartial medical examiner, diagnosed cervical and lumbar strains and right
knee osteoarthritis. Dr. Zitner found that appellant was capable of performing sedentary work, six hours a day.
Appellant’s limitations were primarily due to his right knee osteoarthritis, which he indicated was a preexisting
condition and only minimally aggravated by the August 18, 2005 employment injury. Dr. Zitner also noted that his
significant obesity contributed to his disability. His opinion was solicited because the Office declared a conflict in
medical opinion between Dr. Varriale and appellant’s then-treating physician, Dr. George L. Colvin. Both
physicians imposed certain physical restrictions; however, Dr. Colvin found that appellant was capable of working
full-time limited duty whereas Dr. Varriale recommended a four-hour workday.

2

On March 10, 2006 Dr. Colvin excused appellant from work for the period February 6
through March 10, 2006 because of “recurrent low back pain from the work injury.” He advised
that appellant was “ok to resume duties [on] March 13, 2006.”
When Dr. Colvin saw appellant on April 25, 2006, he diagnosed cervicalgia, right elbow
pain, low back pain, sciatica, lumbar myofascitis, right knee swelling and right knee pain. He
noted that appellant’s prognosis was fair and that he should be “okay to return to work by this
coming Monday.” Appellant was advised to continue with his physical therapy.
Dr. Colvin provided additional reports dated June 6 and July 25, 2006. He continued to
treat appellant for his neck, low back, right shoulder and right knee. However, Dr. Colvin did
not specifically address appellant’s ability to work. In his July 25, 2006 report, he noted that all
of appellant’s injuries were compatible with his history of a fall at work. Dr. Colvin was
concerned with the lack of progress with respect to appellant’s right knee condition and,
therefore, he referred appellant to an orthopedic surgeon for a second opinion.
Dr. Colvin completed an August 2, 2006 work capacity evaluation (Form OWCP-5c)
noting that appellant could work full-time limited duty. He also provided an August 22, 2006
examination report.5 However, the latter report did not specifically address appellant’s ability to
work.
In October 2006, the Office paid appellant a total of 316 hours of wage-loss
compensation. This included eight hours of compensation for both October 6 and 7, 2005 on the
basis that appellant was “unable to work until October 12, 2005.” The balance represented four
hours of compensation for each day appellant documented attendance at various medical
appointments between October 2005 and June 2006. The Office advised appellant to submit
additional medical evidence to support his claimed period of temporary total disability.
The Office issued decisions on March 3 and May 31, 2007 denying appellant’s various
claims for compensation for temporary total disability through November 5, 2006. Appellant
sought further review from the Branch of Hearings and Review.
Appellant filed additional CA-7s covering the period June 24 through August 18, 2007.
He claimed two hours of lost wages each day based on his part-time work schedule. There were
also 11 days during that timeframe, where appellant claimed an additional 2 to 6 hours of wageloss compensation totaling 62 hours. The Office paid appellant two hours per day based on his
part-time work schedule and an additional four hours per day for July 24, 26 and 27, 2007
because of documented medical appointments. Appellant was advised to submit medical
evidence to substantiate the additional hours claimed.

5

Dr. Colvin does not appear to have examined appellant after August 22, 2006. In early 2007, appellant came
under the care of Dr. Mark G. Grossman and Dr. Marc A. Agulnick, both Board-certified orthopedic surgeons.
Dr. Grossman treated appellant’s right knee condition and Dr. Agulnick treated his lumbar and cervical spine
conditions. In a March 16, 2007 report, Dr. Grossman attributed appellant’s ongoing right knee complaints to his
accident at work.

3

Medical records indicate that appellant attended physical therapy on July 11, 13, 20
and 27, 2007. He also had doctors’ appointments on July 20 and 26 and August 10, 2007.6
On August 23, 2007 the Office issued a loss of wage-earning capacity (LWEC)
determination based on the part-time (six hours) limited-duty assignment appellant had been
working since February 2007.7 Thereafter, appellant would receive regular periodic payments
for his two hours of wage loss each day.
In a decision dated August 28, 2007, an Office hearing representative set aside the
March 3 and May 31, 2007 decisions denying compensation for the period October 2005 through
November 2006. She remanded the case to the Office for further development. Among other
things, the Office was instructed to obtain additional information from the impartial medical
examiner, Dr. Zitner, regarding appellant’s claimed disability during the period October 2005
through November 2006.
On November 15, 2007 the Office denied appellant’s claim for additional wage-loss
compensation for the period June 24 through August 18, 2007. Appellant requested a review of
written record.
In December 2007, appellant filed additional CA-7s claiming intermittent wage loss
between November 25 and December 22, 2007. On 14 separate days, he claimed at least four
hours of lost wages per day for medical treatment.8 Appellant attended physical therapy on
November 27, 28 and 29 and December 4, 5, 6, 12, 13, 14, 18, 19 and 20, 2007. He also had
doctor’s appointments on November 28 and 30, 2007. Additionally, appellant obtained a custom
knee brace on December 13, 2007.
Physical therapy records for the period November 13 through 23, 2007 indicated that
appellant’s therapy sessions began at either 3:00 or 3:30 p.m. and lasted one to two hours, ending
at the latest 5:30 p.m.
The employing establishment challenged appellant’s most recent claim for wage-loss
compensation noting that he had not been reporting for his 4:30 to 10:30 p.m. work shift on the
days he attended physical therapy. It also noted that appellant was claiming four hours per
therapy visit when the evidence indicated that his therapy sessions lasted only one to two hours.
The employing establishment urged the Office to compensate appellant for only those hours of
physical therapy, including his travel time, which overlapped with his 4:30 to 10:30 p.m. tour of
duty. According to it, appellant lived 3.5 miles from his therapist’s office, which was a 10minute ride.
6

Appellant claimed additional compensation for July 3 and 6, August 7 and 14, 2007. However, he did not
submit evidence to support his claim for wage loss on those particular days.
7

Appellant subsequently requested a review of the written record, which was denied. The Board affirmed the
August 23, 2007 LWEC determination. The Board also affirmed the Branch of Hearings and Review’s October 25,
2007 decision denying appellant’s request for review of the written record. The January 8, 2009 decision is
incorporated herein by reference.
8

Appellant claimed a total of six hours on November 28, 2007 and eight hours on December 20, 2007.

4

In early 2008, the Office asked appellant to provide evidence supporting his claim of
four-hour physical therapy appointments. In the absence of such evidence, he was advised that
he would be compensated for only one to two hours per physical therapy visit.
On January 9, 2008 appellant provided an itinerary of his physical therapy session earlier
that day. His ride to the therapist’s office reportedly took 30 minutes.9 Appellant arrived at
3:20 p.m. and his therapy session began 3:40 p.m. and lasted until 5:30 p.m. He indicated that he
left the therapist’s office at 5:50 p.m. and arrived home at 6:25 p.m. From door-to-door
appellant’s trip to the therapist that day lasted 3 hours and 35 minutes.10
On January 16, 2008 the Office advised appellant that, based on the documentation
received thus far, he was likely only entitled to two hours per physical therapy visit, which it
paid. To receive the additional hours claimed, appellant was told he would have to submit
further evidence. The Office explained that while it was its policy to grant up to four hours for
routine medical appointments, appellant was not guaranteed four hours compensation.
On January 24, 2008 appellant declined to submit any further information and asked that
the Office issue a formal decision denying his request for compensation so that he could then
exercise his appeal rights. He believed that he had already submitted all the necessary
information.
By decision dated March 5, 2008, the Office denied appellant’s claim for additional
compensation for the period November 25 through December 22, 2007. Appellant subsequently
requested an oral hearing.
Regarding appellant’s claimed period of temporary total disability from October 2005
until November 2006, the Office asked Dr. Zitner to provide a supplemental report, but he
declined. As such, it referred him to Dr. Jerrold M. Gorski, a Board-certified orthopedic
surgeon, for another impartial medical examination.
In a report dated February 25, 2008, Dr. Gorski diagnosed severe tricompartmental
osteoarthritis of the right knee, degenerative arthritis of the neck and lumbar spine and obesity.
He noted that these conditions were preexisting and not medically connected to appellant’s work
conditions, which in essence was a sedentary job. Dr. Gorski explained that appellant may have
had a temporary aggravation, but his current complaints were due entirely to his preexisting
condition. He further stated that the aggravation would be expected to have lasted no more than
three months. According to Dr. Gorski, appellant had returned to his preinjury status with
expected continuing degeneration. On the question of disability, he stated that appellant was
totally disabled due to the work-related conditions “from the date of injury -- August 10, 2005
(sic) until perhaps October 6, 2005.”

9

Appellant noted that he had called for a ride at 2:30 p.m. and was picked up at 2:50 p.m.

10

If one includes the additional 20 minutes appellant reportedly waited for his ride to arrive, the entire time is
slightly less than 4 hours.

5

In a decision dated March 25, 2008, the Office denied appellant’s claim for compensation
for the period October 6, 2005 through September 6, 2006, September 10 through 30, 2006 and
October 7 through November 5, 2006.
Appellant requested an oral hearing. He also requested that the hearing representative
issue subpoenas compelling the testimony of several employing establishment and Office
personnel. On June 12, 2008 the hearing representative denied appellant’s request for
subpoenas. The hearing was held on July 15, 2008 and encompassed the decisions issued on
November 15, 2007 and March 5 and 25, 2008.
Posthearing appellant submitted information regarding the hours of operation of the
physical therapy facility where he received treatment. On Monday, Wednesday and Friday the
facility opened at 8:00 a.m. and closed for the day at 7:00 p.m. On Tuesday and Thursday the
facility opened at 10:00 a.m. and closed for the day at 4:00 p.m. Each day the facility closed at
noon for lunch and depending on the day it reopened some time between 1:45 and 2:30 p.m.
By decision dated August 29, 2008, the hearing representative affirmed all three Office
decisions. As to the issue of appellant’s claimed temporary total disability from October 2005
through November 2006, the hearing representative accorded determinative weight to
Dr. Gorski’s February 25, 2008 opinion. With respect to intermittent wage loss during the period
June 24 through August 18, 2007, November 25 through December 6, 2007 and December 9 to
22, 2007, she found in some instances that the record did not include evidence to support the
period claimed. The remaining hours were denied because appellant could have attended his
various medical appointments on his own time prior to reporting for duty at 4:30 p.m.
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of establishing the essential elements of his claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.11 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.12 The evidence submitted must be reliable,
probative and substantial.13
ANALYSIS -- ISSUE 1
As a preliminary matter, the Board finds that the hearing representative did not abuse his
discretion in denying appellant’s request to subpoena certain Office representatives and
employing establishment personnel.14 An Office employee acting in his or her official capacity
11

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

12

Id. at § 10.115(f).

13

Id. at § 10.115.

14

Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deductions from established facts.
Lottie M. Williams, 56 ECAB 302, 309 (2005).

6

as decision-maker or policy administrator may not be compelled to testify before the Branch of
Hearings and Review.15 With respect to compelling the testimony of several employing
establishment personnel, appellant must explain in writing why the testimony is directly relevant
to the issues at hand and why “a subpoena is the best method or opportunity to obtain such
evidence.”16 The written request must also explain why there are no other means by which the
testimony could have been obtained.17 The hearing representative properly exercised his
discretion in finding that appellant’s May 9, 2007 subpoena request did not satisfy the abovenoted criteria.
The hearing representative denied compensation for the claimed period based on
Dr. Gorski’s February 25, 2008 opinion, which had been accorded “special weight” because of
his purported status as an impartial medical examiner.18 The hearing representative stated that
“Dr. Gorski determined that injury-related disability ceased three months following the date of
injury, i.e., October 18, 2005.”
Dr. Gorski was selected as a replacement for Dr. Zitner, who had previously been
designated an impartial medical examiner to resolve a conflict between Drs. Colvin and Varriale
regarding appellant’s ability to perform limited-duty work. Dr. Zitner declined the Office’s
request to provide a supplemental report regarding appellant’s claimed disability between
October 2005 and November 2006. Therefore, the Office referred appellant to Dr. Gorski. In his
February 25, 2008 report, Dr. Gorski stated that appellant’s employment-related aggravation was
“temporary ... and would be expected to have lasted no more than three months.” He further
stated that appellant was “totally disabled due to the work-related conditions from the date of
injury -- August 10, 2005 (sic) until perhaps October 6, 2005.” Dr. Gorski opined that any
“subsequent disability ... would be due to [appellant’s] underlying and preexisting condition.”
Although the case was referred for an impartial medical examination pursuant to a
previous hearing representative’s directive, there was no conflict in medical opinion regarding
appellant’s claimed disability between October 2005 and November 2006. In 2005 and 2006,
Dr. Colvin, appellant’s then-treating physician, provided some pertinent information regarding
appellant’s disability status, albeit piecemeal. When Dr. Varriale, the Office referral physician,
examined appellant in August 2006, he did not address his claimed total disability dating back to
October 2005. Dr. Zitner similarly did not address this point in his November 14, 2006 report.
Because there was no existing conflict regarding appellant’s claimed disability from

15

20 C.F.R. § 10.619(b).

16

Id. at § 10.619(a)(2).

17

Id.

18

The Federal Employees’ Compensation Act provides that if there is disagreement between the physician
making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who
shall make an examination. 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994). Where the Office has
referred appellant to an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such
a specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special
weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

7

October 2005 through November 2006, Dr. Gorski’s February 25, 2008 opinion is not entitled to
“special weight.”
As previously noted, the Office solicited Dr. Gorski’s opinion primarily to address
appellant’s claimed disability during the period October 2005 through November 2006.
However, Dr. Gorski’s February 25, 2008 report is not entirely responsive to the question posed
by the Office. He did not specifically address appellant’s ability to work during the claimed
period but instead attributed any disability beyond October 6, 2005 to a preexisting condition.19
Dr. Gorski indicated that the aggravation brought about by the August 2005 employment injury
was temporary and would have been expected to last no more than three months. Consequently,
the claim was denied based on the issue of causation.20
Dr. Gorski’s opinion regarding the cause of appellant’s post-October 6, 2005 disability is
not fully rationalized.21 He stated that the aggravation was “temporary ... and would be expected
to have lasted no more than three months.” According to Dr. Gorski, appellant was totally
disabled due to the work-related conditions from “August 10 ... until perhaps October 6, 2005.”
However, any disability afterwards would be due to appellant’s “underlying and preexisting
condition.” If appellant’s August 18, 2005 employment injury represented at most a three-month
temporary aggravation of his preexisting right knee condition, then Dr. Gorski should have
explained why the aggravation reportedly ceased within less than two-months’ time. Absent
such an explanation, the October 6, 2005 date identified by Dr. Gorski seems arbitrary.22 It is
also difficult to ascertain how Dr. Gorski found that appellant was currently at his preinjury
status, particularly in light of the fact that he has ongoing right knee complaints which he did not
have prior to the August 18, 2005 employment injury. He also cited appellant’s “sedentary job”
as a basis for his opinion on causal relationship. It is unclear how appellant’s “sedentary job”
duties factor into an opinion on causal relationship in a traumatic injury claim. Given the above19

Dr. Gorski did not clearly indicate whether he believed appellant was totally disabled from October 2005
through November 2006 regardless of the cause of the claimed disability.
20

Prior to Dr. Gorski’s February 25, 2008 opinion, there was no real dispute about causation. Dr. Varriale had
previously stated that the “knee aggravation was permanent and mildly related to the accident.” When
Dr. Zitner examined appellant he explained that the “aggravation of the [knee] injury is temporary, but the condition
of osteoarthritis is permanent.” However, he did not state that the “temporary” aggravation had ceased at that time
of his November 14, 2006 report. Dr. Grossman, who began treating appellant in early 2007, was of the opinion that
appellant’s continuing right knee complaints related back to his August 18, 2005 employment injury. The Office
has paid wage-loss compensation for partial disability dating back to November 2006 premised on the belief that
appellant has an ongoing employment-related disability. Thus, it appears that Dr. Gorski has created a conflict in
medical opinion on the issue of causation.
21

Causal relationship is a medical question that generally requires rationalized medical opinion evidence to
resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be based on a complete
factual and medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s
opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors. Id.
22

Prior to Dr. Gorski’s opinion, the October 6, 2005 date’s only significance was that it represented the first day
appellant experienced wage loss following the expiration of continuation of pay.

8

noted deficiencies, the Board finds that Dr. Gorski’s February 25, 2008 report does not constitute
a rationalized medical opinion.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While appellant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.23
Once it undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.24
The previous hearing representative believed that further development was necessary to
properly adjudicate appellant’s claim for temporary total disability from October 2005 through
November 2006. Dr. Gorski’s opinion was procured in an effort to satisfy the hearing
representative’s mandate. However, his February 25, 2008 report is deficient as noted above.
Accordingly, the Office did not properly discharge its responsibilities in developing the record.25
The case is remanded to the Office so that it may refer the claim file to a qualified medical
specialist for an opinion regarding the extent of any employment-related disability during the
period October 6, 2005 through September 6, 2006, September 10 to 30, 2006 and October 7
through November 5, 2006. After the Office has developed the case record to the extent it deems
necessary, a de novo decision shall by issued.
LEGAL PRECEDENT -- ISSUE 2
An injured employee is entitled to compensation for lost wages incurred while obtaining
authorized medical services.26 This includes the actual time spent obtaining the medical services
and “a reasonable time spent traveling to and from the [medical] provider’s location.”27 As a
matter of practice, the Office generally limits the amount of compensation to four hours with
respect to routine medical appointments.28 However, longer periods of time may be allowed
when required by the nature of the medical procedure and/or the need to travel a substantial
distance to obtain the medical care.29

23

Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell,
34 ECAB 1223 (1983).
24

Richard F. Williams, 55 ECAB 343, 346 (2004).

25

Id.

26

5 U.S.C. § 8103(a) (2006); see Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

27

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(December 1995).
28

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
29

Id.

9

ANALYSIS -- ISSUE 2
The hearing representative denied compensation for intermittent wage loss because
appellant presumably could have arranged for medical treatment prior to his scheduled tour of
duty from 4:30 to 10:30 p.m. Assuming arguendo appellant could have scheduled his medical
care so as not to interfere with his work schedule, nonetheless the Office cannot dictate how he
spends his off-duty time. Moreover, while the Office cannot require appellant to schedule
medical care on his personal time, he is not entitled to wage-loss compensation for medical
treatment he received during off-duty hours. The record indicates that appellant regularly
scheduled physical therapy up to three times a week. The facility he attended closed at 4:00 p.m.
on Tuesday and Thursday and at 7:00 p.m. on Monday, Wednesday and Friday. On Tuesday and
Thursday appellant would have finished therapy at 4:00 p.m., which is a half-hour before his
scheduled tour of duty begins. Even assuming a 35-minute commute home as appellant reported,
it is highly unlikely that he would be entitled to the 2 hours of compensation already received, let
alone 4 hours. Between November 27 and December 20, 2007, 7 of the 12 days appellant
received physical therapy fell on either a Tuesday or Thursday.
Appellant has documented numerous days where he attended either physical therapy or
doctor’s appointments. The Office cannot deny the claimed compensation merely because he
could have scheduled these appointments on his own time. Appellant is not entitled to
compensation for appointments he attended during his off-duty time. The case will be remanded
to the Office to properly determine which days he is entitled to wage-loss compensation for
medical appointments, including a reasonable time for incidental transportation.30
CONCLUSION
The Board finds that the case is not in posture for decision.

30

The Board notes that in many instances there are no corresponding time analysis forms (CA-7a) covering the
claimed period, particularly during the June 24 through August 18, 2007 period.

10

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: September 25, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, GATEWAY
PERFORMANCE CLUSTER, St. Louis, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-842
Issued: December 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 15, 2010 appellant filed a timely appeal from the August 5, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his claim for a January 29,
2008 injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on January 29, 2008.
FACTUAL HISTORY
On January 29, 2008 appellant, then a 38-year-old maintenance manager, filed a claim
alleging that he sustained a left ankle injury in the performance of duty on January 29, 2008. He
indicated that he injured himself playing volleyball while attending the Maintenance Leadership
Development Program at the National Center for Employee Development (NCED) in Norman,

Oklahoma.1 Appellant stopped work on January 29, 2008 at the time of the injury. He submitted
medical evidence in support his claim including the report of fracture repair surgery on his left
ankle on January 29, 2008.
In a February 8, 2008 letter, Loretta Grady, a health and resource management specialist,
stated that the postal service was challenging appellant’s claimed work injury because it was not
job related. She indicated that he was attending postal training at an off-site postal facility when
the injury occurred. Participation in the volleyball game was during appellant’s own time and by
his own volition and the postal service had not sponsored the activity. Ms. Grady stated that
playing volleyball had nothing to do with his job duties while attending the training session.
In a February 21, 2008 letter, the Office requested that appellant answer a number of
questions about his claim, including whether he was on travel duty status (TDY) at the time of
injury; whether the injury occurred on postal service property; and whether his employer
required or persuaded him to participate in the volleyball game.2
In an undated statement, appellant indicated that he was attending training at the NCED
while on TDY when the injury occurred at about 5:50 p.m. on January 29, 2008.3 He stated that
his employer did not require him to play volleyball but indicated that whether he was persuaded
to do so was “open to interpretation.” Appellant indicated that as part of the Maintenance
Leadership Development Program he developed an Individual Development Plan for work, self
and family which included a personal pledge to lose weight and become more physically active.
He indicated that he was playing volleyball with his mentor and 12 to 15 others.4
In a March 13, 2008 letter, Ms. Grady stated that appellant was injured while playing
volleyball in the gymnasium that is located in the NCED housing facility which is owned by the
postal service. Appellant was on TDY at the time of the injury on January 29, 2008. Ms. Grady
stated that no employees were required or persuaded to participate in the volleyball game and
noted that it was a recreational activity that took place after class was finished for the day. The
volleyball game was not an organized activity that was sponsored by the postal service.
In a March 24, 2008 decision, the Office denied appellant’s claim that he sustained an
injury in the performance of duty on January 29, 2008. It found that appellant’s injury did not
occur in the performance of duty because he deviated from the normal incidents of his TDY trip
and engaged in personal activities which were not reasonably incidental to his work.

1

On the back of form, appellant’s supervisor indicated that appellant was in training status at the time of the
alleged injury, but asserted that it did not occur in the performance of duty.
2

In another February 21, 2008 letter, the Office requested similar information from the employing establishment.

3

Appellant indicated that the NCED was considered to be postal service property. He submitted documents
which showed he was TDY on January 29, 2008. Another document showed that training sessions were scheduled
to end at 5:00 p.m. on January 29, 2008.
4

In another statement, appellant indicated that the postal service supplied the site of the volleyball game and the
equipment to play it.

2

In an undated statement, appellant stated that he participated in the volleyball game as
part of his individual development plan that was put together by his mentor, but he
acknowledged that the plan only generally referred to improving physical fitness. He indicated
that his mentor monitored his progress in the individual development plan. Appellant submitted
a statement in which Bobbie McGee, another postal employee, stated that he took part in the
volleyball game during which appellant was injured. Mr. McGee stated, “The volleyball games
are put on by NCED and staffed by NCED employees (officiating duties). It was during one of
… such games that [appellant] was injured. NCED employees provided first aid until
paramedics arrived.” In a March 24, 2009 letter, appellant’s counsel at the time requested
reconsideration. He argued that the postal service sponsored the volleyball game and therefore
this fact meant that appellant did not deviate from his TDY trip coverage.5
In a July 21, 2009 letter, a postal service official stated that use of the recreational
facilities at the NCED was entirely voluntary and indicated that appellant’s individual
development plan was in its draft stages when he was injured.
In an August 5, 2009 decision, the Office affirmed its March 24, 2008 decision denying
appellant’s claim for a January 29, 2008 injury.
LEGAL PRECEDENT
The general rule regarding coverage of employees on travel status or on temporary-duty
assignments is set forth in Larson, The Law of Workers’ Compensation:
“An employee whose work entails travel away from the employer’s premises is
generally considered to be within the course of his or her employment
continuously during the trip, except when there is a distinct departure on a
personal errand. Thus, injuries flowing from sleeping in hotels or eating in
restaurants away from home are usually compensable.”6
The Board has similarly recognized that the Federal Employees’ Compensation Act
covers an employee 24 hours a day when the employee is on travel status and engaged in
activities essential or incidental to such duties.7 When the employee, however, deviates from the
normal incidents of his or her trip and engages in activities, personal or otherwise, which are not
reasonably incidental to the duties of the temporary assignment contemplated by the employer,
the employee ceases to be under the protection of the Act and any injury occurring during these
deviations is not compensable.8

5

In a July 27, 2009 letter, counsel argued that the volleyball game was incidental to appellant’s training sessions.

6

A. Larson, The Law of Workers’ Compensation § 25.01 (2010).

7

See Ann P. Drennan, 47 ECAB 750 (1996); Richard Michael Landry, 39 ECAB 232 (1987) and cases cited
therein.
8

Id.

3

The general criteria for performance of duty as it relates to recreational or social
activities, is set forth in Larson as follows:
“Recreational or social activities are within the course of employment when:
(1) They occur on the premises during a lunch or recreational period as a regular
incident of employment; or (2) The employer, by expressly or impliedly requiring
participation, or by making the activity part of the services of an employee, brings
the activity within the orbit of the employment; or (3) The employer 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
recreational and social life.”9
ANALYSIS
On January 29, 2008 appellant filed a claim alleging that he sustained a work-related left
ankle injury while playing volleyball on January 29, 2008. He indicated that he injured himself
while attending the program at NCED.
The Board finds that appellant’s injury did not occur in the performance of duty because
he deviated from the normal incidents of his trip and engaged in personal activities which were
not reasonably incidental to the duties of the temporary assignment contemplated by the
employer.
In this case, the personal recreational activity was playing volleyball in the gymnasium
located in the NCED housing facility on January 29, 2008. However, it is not an activity
reasonably related to the temporary-duty assignment.10 The employer did not expressly or
impliedly require participation in the activity of playing volleyball, the activity was not part of
the services of the employee11 and the employer derived no substantial direct benefit from the
activity.12
9

See supra note 6 at § 22.00 (2010). Examples of noncompensable, personal deviations from the normal
incidents of employment while on travel or temporary duty are found in prior Board decisions: In Karl Kuykendall,
31 ECAB 163 (1979), the employee was on TDY for training in Denver and sustained an injury skiing. The Board
found that he had deviated from activities reasonably incidental to his TDY assignment. In Evelyn S. Ibarra, 45
ECAB 840 (1994), the employee was injured while jogging during her lunch hour and the Board found that this was
a personal recreational activity not reasonably related to her TDY assignment.
10

See Lawrence J. Kolodzi, 44 ECAB 818 (1993) (finding that the employee deviated from his TDY assignment
for personal and recreational purposes when he was injured at a health club playing racquetball after his workday
had ended).
11

See Lawrence J. Kolodzi, supra note 10; see also Bernard D. Blum, 1 ECAB 1 (1947). The employing
establishment stated that no employees were required or persuaded to participate in the volleyball game and noted
that it was not an organized activity that was sponsored by the postal service. Appellant stated that his employer did
not require him to play volleyball. He also indicated that whether he was persuaded to do so was “open to
interpretation,” but he did not explain this statement. On appeal appellant argued that the employer sponsored the
volleyball game, but the Board notes that the fact that NCED officials might have officiated the volleyball game
does not mean that the employer sponsored or required participation in the game.
12

See Lawrence J. Kolodzi, supra note 10; see also Lindsay A.C. Moulton, 39 ECAB 434 (1988).

4

The Board notes that appellant was afforded the opportunity to play volleyball after duty
hours.
He indicated that he played volleyball as part of a personal improvement plan he
developed as part of the training program he was attending. However, the only benefit derived
from this activity was by appellant for his improved health and morale. Therefore, the level of
employer sanction is not sufficient to bring appellant’s voluntary, personal activity of playing
volleyball within the course of employment under the criteria established for recreational and
social activities.14
13

Consequently, the Board finds no basis on which to bring appellant’s volleyball activity
at the time of injury within the coverage of the Act, either as reasonably incidental to his travel
assignment, or as a covered recreational activity. Appellant is, therefore, found not to be in the
performance of duty at the time of the claimed injuries on January 29, 2008.
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 January 29, 2008.

13

The employing establishment stated that the volleyball game was a recreational activity that took place after
training classes were finished for the day.
14

See supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Arlington, VA, Employer
__________________________________________

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

Docket No. 14-319
Issued: April 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 26, 2013 appellant filed a timely appeal from the July 25, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her request
for review of the written record. As more than 180 days elapsed from issuance of the most
recent merit decision by OWCP on May 2, 2013, denying appellant’s claim for a schedule award,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board only has jurisdiction to review this nonmerit decision.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the written
record as untimely.
1
2

5 U.S.C. § 8101 et seq.

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

FACTUAL HISTORY
On September 18, 2007 appellant, a 47-year-old special agent, sustained a traumatic
injury in the performance of duty when she slipped and fell onto her left knee in the restroom.
OWCP accepted her claim for a closed fracture of the left patella and for osteoarthritis,
unspecified, of the left lower extremity.
In a decision dated May 2, 2013, OWCP denied appellant’s schedule award claim.
Appeal rights attached to the decision notified her that any hearing request must be made in
writing within 30 calendar days after the date of the decision as determined by the postmark of
her letter.
Appellant requested a review of the written record by an OWCP hearing representative.
Her letter was postmarked June 7, 2013.
OWCP denied appellant’s hearing request in a decision dated July 25, 2013. It found that
her request was untimely and that she was therefore not entitled to a hearing as a matter of right.
OWCP considered appellant’s request nonetheless but denied a discretionary hearing on the
grounds that she could equally well pursue her schedule award claim through the reconsideration
process.
Appellant concedes that her request was untimely but asks the Board to consider that the
delay was due largely to OWCP’s failure to authorize payment for her physician to prepare an
impairment rating. When she paid the money herself, the physician did not prepare the rating
until June 6, 2013. Appellant contends that the delay was beyond her control.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title [relating to reconsiderations], a
claimant for compensation not satisfied with a decision of the Secretary under
subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a
representative of the Secretary.”3
Initially, the claimant can choose between an oral hearing or a review of the written
record. The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.5 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.6 In such a
4

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Herbert C. Holley, 33 ECAB 140 (1981).

2

case, it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.7
ANALYSIS
Appellant had 30 days from the date of OWCP’s May 2, 2013 decision, or until June 3,
2013, to postmark her request for a review of the written record. Her request, postmarked on
June 7, 2013, was therefore untimely. By law, appellant is not entitled to a hearing, or review of
the written record, as a matter of right.
Although appellant’s request was untimely, OWCP still had discretion to grant a review
of the written record. It exercised its discretion and decided that a review of the written record
was unnecessary because she could simply submit her evidence and argument to OWCP with a
request for reconsideration.
The Board has held that the denial of a hearing on these grounds is a proper exercise of
OWCP’s discretion.8 Accordingly, the Board finds that OWCP properly denied appellant’s
untimely request. The Board will affirm OWCP’s July 25, 2013 decision denying a review of the
written record.
Appellant explained that the delay in her request was due to attempts to secure
authorization from OWCP and her physician’s failure to prepare an impairment rating until a few
days after the deadline. The Board notes that the circumstances for the delay are immaterial. A
claimant has a right to a hearing under the statute only if the request is timely. If for any reason
it is untimely, it becomes a matter of OWCP’s discretion whether to grant or deny the request.
On appeal, the Board can only review whether OWCP properly exercised its discretion. The
Board cannot substitute its discretion on whether a review of the written record should be
performed. OWCP properly exercised its discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the written
record as untimely.

7

Rudolph Bermann, 26 ECAB 354 (1975).

8

E.g., Jeff Micono, 39 ECAB 617 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the July 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 09-1266
Issued: January 15, 2010

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from the March 12, 2009 merit decision
of the Office of Workers’ Compensation Programs concerning an overpayment of compensation
and abandonment of a hearing. 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 that appellant abandoned a
hearing; (2) whether the Office properly determined that she received a $3,782.62 overpayment
of compensation; and (3) whether the Office properly determined that she was at fault in creating
the overpayment of compensation, thereby precluding waiver of the overpayment.
FACTUAL HISTORY
In June 2003, the Office accepted that appellant, then a 48-year-old mail processing clerk,
sustained a neck strain, left shoulder impingement syndrome, left elbow epicondylitis, left wrist

strain and left-sided trigger fingers (1st & 3rd digits) due to the performance of her repetitive
work duties over time.1 Appellant received Office compensation for periods of disability.
In a February 15, 2008 letter, the Office advised appellant of its preliminary
determination that she was not entitled to compensation as of February 5, 2008 because she
refused, without good cause, a limited-duty position offered by the employing establishment
which was available that date. It provided her an opportunity to present evidence and argument
challenging this proposed action. In an April 8, 2008 decision, the Office indicated that it had
finalized its preliminary determination that appellant was not entitled to compensation from
February 5, 2008 onwards.2
In a June 11, 2008 letter, the Office advised appellant of its preliminary determination
that she received a $3,782.62 overpayment of compensation for the period February 5 to
March 14, 2008 because a suitable limited-duty job assignment was available to her beginning
February 5, 2008 and she was not entitled to compensation after February 5, 2008.3 It also made
a preliminary determination that she was at fault in the creation of this overpayment, because she
accepted a payment that she knew or reasonably should have known was incorrect.4
Appellant timely requested a prerecoupment hearing with an Office hearing
representative. In an October 22, 2008 letter sent to her last known address, the Office advised
her regarding the place and time of a hearing scheduled for November 20, 2008 in Los Angeles.
The letter contained instructions for requesting a postponement of the hearing if necessary.
In a March 12, 2009 decision, the Office determined that appellant abandoned her request
for a hearing noting that she did not request postponement, appear at the scheduled hearing or
provide any notification for such failure within 10 days of the scheduled date of the hearing. It
further found that she received a $3,782.62 overpayment of compensation and that she was at
fault in creating the overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.

1

The Office also accepted under a separate claim file that appellant sustained a work-related lumbosacral strain.

2

The Office’s April 8, 2008 decision is not within the Board’s jurisdiction as it was not issued within the year
prior to appellant’s filing of this appeal with the Board. See 20 C.F.R. § 501.3.
3

The record contains evidence showing that appellant received $3,782.62 in Office compensation for the period
February 5 to March 14, 2008 via check dated March 14, 2008. Appellant actually received a check in the amount
of $3,901.71 covering the period February 2 to March 14, 2008, but the Office calculated the portion of the check
that appellant was not entitled to receive, i.e., the portion covering the period February 5 to March 14, 2008.
4

The Office indicated that appellant had been advised in a February 15, 2008 letter that she could not receive
Office compensation effective beginning February 5, 2008 and continuing.

2

LEGAL PRECEDENT -- ISSUE 1
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [district Office]. In
cases involving prerecoupment hearings, H&R will also issue a final
decision on the overpayment, based on the available evidence, before
returning the case to the DO.
(2) However, in any case where a request for postponement has been
received, regardless of any failure to appear for the hearing, H&R should
advise the claimant that such a request has the effect of converting the
format from an oral hearing to a review of the written record.
This course of action is correct even if H&R can advise the claimant far
enough in advance of the hearing that the request is not approved and that
the claimant is, therefore, expected to attend the hearing and the claimant
does not attend.”5
ANALYSIS -- ISSUE 1
In the present case, the Office scheduled a prerecoupment hearing before an Office
hearing representative at a specific time and place on November 20, 2008. The record shows
that it mailed appropriate notice, dated October 22, 2008, to appellant at her last known address.
The record also supports that she did not request postponement, that she failed to appear at the
scheduled hearing and that she failed to provide any notification for such failure within 10 days
of the scheduled date of the hearing. As this meets the conditions for abandonment specified in
the Office’s procedure manual, the Office properly found that appellant abandoned her request
for a hearing before an Office hearing representative.6

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
6

See also Claudia J. Whitten, 52 ECAB 483, 485 (2001).

3

LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of the Federal Employees’ Compensation Act7 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.8 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”9
Section 8106(c)(2) of the Act provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”10
ANALYSIS -- ISSUE 2
The record reveals that appellant received $3,782.62 in Office compensation for the
period February 5 to March 14, 2008 via check dated March 14, 2008. However, she was not
entitled to receive compensation for this period because the Office had determined, in an April 8,
2008 decision, that she was not entitled to receive Office compensation beginning February 5,
2008 and continuing due to the fact that she refused, without good cause, a suitable limited-duty
position offered by the employing establishment. Therefore, the Office properly found that
appellant received a $3,782.62 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act11 provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.12 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this

7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8102(a).

9

Id. at § 8129(a).

10

Id. at § 8106(c)(2).

11

Id. at §§ 8101-8193.

12

Id. at § 8129(a).

4

subchapter or would be against equity and good conscience.”13 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.14
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide 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 10.433(c) of the Office’s regulations provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”16
ANALYSIS -- ISSUE 3
The Board finds that the Office improperly determined that appellant was at fault in
creating the $3,782.62 overpayment of compensation. Appellant received $3,782.62 in Office
compensation for the period February 5 to March 14, 2008 via check dated March 14, 2008.
However, she was not advised of the Office’s determination that she could not receive
compensation beginning February 5, 2008 until the Office issued its April 8, 2008 decision
making this finding.17 Therefore, the Office had no clear basis to find that appellant knew or
should have known that she accepted a payment to which she was not entitled when she received
payment of $3,782.62 on March 14, 2008.
Since it has been determined that appellant was without fault in the creation of the
overpayment, the Office may only recover the overpayment, in accordance with section 8129(b)
of the Act,18 if a determination has been made that recovery of the overpayment would neither
13

Id. at § 8129(b).

14

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

15

20 C.F.R. § 10.433(a).

16

Id. at § 10.433(c).

17

In the Office’s February 15, 2008 letter, appellant was only advised of the possibility that such a holding could
be made in the future.
18

5 U.S.C. § 8129(b).

5

defeat the purpose of the Act nor be against equity and good conscience.19 Therefore, the case
should be remanded to the Office for further development with respect to whether appellant is
entitled to waiver of the $3,782.62 overpayment under 20 C.F.R. §§ 10.322; 10.323. After such
development as it deems necessary, the Office should issue an appropriate decision on this
matter.
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned a hearing
and that she received a $3,782.62 overpayment of compensation. The Board further finds that
the Office improperly determined that appellant was at fault in the creation of the overpayment
and the case is remanded to the Office for further development regarding whether appellant is
entitled to waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to hearing abandonment and the fact
and amount of the overpayment of compensation. The March 12, 2009 decision is set aside with
respect to the finding of fault and remanded to the Office for further proceedings consistent with
this decision of the Board.
Issued: January 15, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.322; 10.323.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 10-83
Issued: July 12, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from a September 10, 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.
ISSUE
The issue is whether appellant established an injury causally related to factors of her
federal employment.
FACTUAL HISTORY
On July 10, 2009 appellant, then a 45-year-old tax examiner technician, filed an
occupational disease or illness claim (Form CA-2) alleging she sustained low back and neck pain

radiating into her arms and legs as a result of her federal employment. She stated that she had
experienced chronic pain for two years and was aware of her condition on March 5, 2007.1
On August 3, 2009 appellant submitted a January 9, 2009 letter to Dr. Scott Long, her
treating physiatrist. She noted symptoms such as tight muscles on her left side, inner ear pain
with ringing in the ears, dizziness and headaches since March 5, 2007. Appellant indicated that
she was deaf and obtained two new hearing aids in February 2007. According to her, “The
employees mostly approach behind me and scream at my hearing aids. And it shocked via my
sternocleidomastoid muscle and it hurt/sore for three days.” Appellant stated that one employee
screamed in a high pitched tone and she had pain in her middle ear that spread to other parts of
her body. She stated that she would “turn my head around and it put pressure on my neck. I
avoid the mocking employees who approach behind me. And it put pressure on muscle and my
back spine from head to lower (poor posture). The mocking employees never tap on my
shoulder and get my attention and attempt to read their lips movement since five years.”
Appellant described the actions of her coworkers as harassment.
With respect to the medical evidence, appellant submitted reports from Dr. Long
regarding her treatment.
In an October 4, 2007 report, Dr. Long diagnosed cervical
radiculopathy, chronic cervical sprain/strain and myofascial pain disorder. On February 5, 2008
he indicated that appellant was being treated for brachial neuritis and cervical radiculopathy. In
an August 6, 2009 report, Dr. Long noted a “constellation of symptoms” including left-sided arm
pain. Appellant also submitted June 6, 2009 cervical and lumbar (MRI) scan magnetic resonance
imaging results.
In a September 10, 2009 decision, the Office denied the claim for compensation. The
Office found the factual and medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

1

The Office reported that appellant had previously filed a claim for injury on March 5, 2007 under OWCP File
No. xxxxxx111.
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background.6 In order to be considered
rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty
and must be supported with medical rationale, explaining the nature of the relationship between
the diagnosed condition and the claimant’s specific employment factors.7
ANALYSIS
Appellant’s burden of proof to establish her occupational claim includes, identifying
those employment factors alleged to have contributed to a diagnosed injury. In this case,
appellant did not submit a detailed factual statement regarding her work factors. In a letter
written to her physician she referred generally to coworkers screaming at her. Appellant did not
clearly explain the nature and extent of this conduct by coworkers and there is no supporting
evidence such as witness statements.8 She also referred to turning her head, but again it is not
clear how often this occurred or under what circumstances, such that an accurate factual
background for the claim can be established.
The Board also notes that appellant’s burden of proof includes both factual and medical
evidence. Once the factual background is established, there must be medical evidence that
provides a diagnosis of a specific condition and a rationalized opinion that the diagnosed
condition is causally related to the identified employment factors. The medical evidence
submitted does not provide any opinion on causal relationship with employment. The reports
from Dr. Long do not discuss employment factors or provide an opinion on the relationship of
any diagnosed condition to appellant’s work as a tax examiner technician. For these reasons, the
Board finds that appellant did not meet her burden of proof in this case.
CONCLUSION
The Board finds that appellant did not establish an injury causally related to factors of her
federal employment.

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

Appellant also briefly characterized the actions of coworkers as harassment. To the extent she is claiming an
injury from harassment, appellant must submit probative factual evidence to substantiate a claim of harassment as a
compensable work factor. See, e.g., David C. Lindsey, Jr., 56 ECAB 263 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2009 is affirmed.
Issued: July 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4