United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Miriam Ozur, Esq., for the Director

Docket No. 06-2011
Issued: February 8, 2007

Oral Argument January 17, 2007

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

JURISDICTION
On August 29, 2006 appellant filed a timely appeal of a January 27, 2006 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 has met his burden of proof to establish a back injury
causally related to factors of his federal employment.
FACTUAL HISTORY
On June 18, 2002 appellant filed an occupational disease claim (Form CA-2), alleging
that he sustained sciatica as a result of his federal employment as a nuclear engineer. The claim
form indicated that he became aware of the condition on December 16, 2001. Appellant
indicated that his condition resulted from sitting at work for approximately seven and one half
hours per day. He submitted an April 4, 2002 lumbar magnetic resonance imaging (MRI) scan

from Dr. M. Reed Knight, a radiologist, stating that there was no lesion in the lumbar spine to
account for the reported left buttock and leg pain. By statement dated August 1, 2002, appellant
reported that he had back and left leg pain beginning December 16, 2001 that continued daily
after he got to work. He stated that his job required sitting at a computer seven to eight hours per
day with little back support.
By decision dated December 17, 2002, the Office denied the claim on the grounds that
the medical evidence was not sufficient to establish the claim. Appellant requested an oral
hearing before an Office hearing representative on April 8, 2003. In a decision dated
November 10, 2003, the Office’s Branch of Hearings and Review found that the hearing request
was untimely and appellant could request reconsideration.
On appeal, the Board remanded the case by order dated February 16, 2005. The Board
noted that the Director had acknowledged that the December 17, 2002 decision was not properly
mailed to the address of record. The case was remanded for the Office to conduct a hearing and
issue a decision on the merits.
By letter dated November 7, 2005, appellant requested a review of the written record. He
submitted treatment notes from the employing establishment health unit. In a noted dated
January 16, 2002, Dr. Ernest Fair indicated that appellant reported left leg pain starting on
December 16, 2001 and he prescribed pain medication. A January 18, 2002 note from another
employing establishment physician, Dr. Ramon Baez, noted continuing left leg pain and
indicated that appellant would have an MRI scan. He stated in an April 10, 2002 treatment note
that appellant needed to see his own physician for further evaluation. An accompanying
unsigned note stated that, based on the MRI scan results, “it appears that appellant] does not have
a work-related back injury.”
By decision dated January 27, 2006, the Office hearing representative found that the
medical evidence did not establish an employment injury. The hearing representative also
determined that appellant was not entitled to reimbursement for the MRI scan.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his 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.2
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

5 U.S.C. §§ 8101-8193.

2

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.3
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.4 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 of the claimant.5
Additionally, in order to be considered rationalized, the 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.6
Section 8103(a) of the Act provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree or the period of disability or aid in lessening the amount of the monthly
compensation.7
ANALYSIS
Appellant filed an occupational disease claim for a back injury causally related to sitting
at his computer while at work. He indicated that he first experienced symptoms on
December 16, 2001. The Office does not contest that appellant’s job involves sitting at his
computer for extended periods. The issue is whether appellant has established a diagnosed
condition as causally related to the employment factor.
The treatment notes from the employing establishment health unit do not provide a
reasoned medical opinion, based on an accurate background, with respect to causal relationship.
Appellant received treatment on January 16 and 18 and April 10, 2002 and he reported back and
leg symptoms commencing December 16, 2001. These notes do not provide a diagnosis or a
medical opinion supporting causal relationship between a diagnosed condition and the identified
work factor. The unsigned note accompanying the April 10, 2002 treatment note, even if it were
accepted as prepared by Dr. Baez or the other physician, did not support causal relationship with
employment.8 Based on the evidence of record, appellant did not meet his burden of proof to
establish a back condition causally related to his federal employment.

3

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

4

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

5

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

6

Id.

7

5 U.S.C. § 8103(a).

8

Medical evidence lacking a signature or proper identification is of no probative medical value. Thomas L. Agee,
56 ECAB (Docket No. 05-335, issued April 19, 1985).

3

On appeal, appellant’s primary concern was the issue of reimbursement for the April 4,
2002 MRI scan. He argued that, since he was referred for the MRI scan by an employing
establishment physician, it should be covered under the Act. While there may be circumstances
where medical treatment can be authorized by the Office even if no employment-related
condition is established, there is no evidence of such authorization in this case.9 Medical
treatment pursuant to section 8103 is provided for employees “injured while in the performance
of duty.” For the reasons noted above, appellant did not establish an injury in the performance of
duty in this case. There is, therefore, no basis for reimbursement of the April 4, 2002 MRI scan
or other medical treatment under the Act.
CONCLUSION
Appellant did not meet his burden of proof to establish an injury causally related to
factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2006 is affirmed.
Issued: February 8, 2007
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

9

See 20 C.F.R. § 300, which provides for authorization of medical treatment in certain circumstances through the
issuance of a Form CA-16 by the employing establishment.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Newington, CT, Employer
__________________________________________

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

Docket No. 15-1379
Issued: March 23, 2017

Case Submitted on the Record

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

JURISDICTION
On June 10, 2015 appellant filed a timely appeal from an April 2, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment of his right upper
extremity.
FACTUAL HISTORY
On November 9, 2012 appellant, a 56-year-old claims examiner, sustained a traumatic
injury in the performance of duty while exiting a bathroom door. He had his right arm extended
1

5 U.S.C. § 8101 et seq.

to push the door open, but another employee pushed the door from the other side, jamming
appellant’s right shoulder. OWCP accepted appellant’s claim for a complete rupture of the right
rotator cuff and right rotator cuff strain. Appellant underwent surgery on February 20, 2013
including a mini-open partial rotator cuff repair.
Appellant filed a claim for a schedule award (Form CA-7). Dr. John D. Kelley, the
Board-certified orthopedic surgeon who performed the operation, evaluated appellant on
February 10, 2014, about one year after surgery. Based on the average of three undisclosed
goniometric measurements, active range of motion (ROM) was 150 degrees of flexion, 30
degrees of extension, 150 degrees of abduction, 30 degrees of adduction, 50 degrees of internal
rotation, and 70 degrees of external rotation.
X-rays showed satisfactory glenohumeral and acromioclavicular joint alignment, good
glenohumeral joint space, a reasonable space between the superior articular surface and the
undersurface of the acromion, and a mild type 2 acromion.
Referencing Table 15-34, page 475, of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides), Dr. Kelley
found 10 percent impairment of the right upper extremity utilizing the ROM methodology.
An OWCP medical adviser reviewed Dr. Kelley’s evaluation. He noted that Dr. Kelley
did not document his calculations and failed to follow the protocols for rating impairment using
the ROM method. Noting that the diagnosis-based impairment (DBI) methodology was the
preferred rating method for the upper extremity, the medical adviser used Table 15-5, page 403,
of the A.M.A., Guides to find a default impairment value of five percent for a full-thickness
rotator cuff tear with residual loss. This rating was unaffected by mild functional history,
decreased for the unusable ROM findings, and increased for moderate clinical studies, resulting
in no modification of the default rating. The medical adviser concluded that appellant had five
percent permanent impairment of the right upper extremity.
Dr. Kelley reviewed the medical adviser’s opinion and explained that it was his own
opinion that the ROM methodology better denoted appellant’s permanent impairment and was in
the realm of allowed uses.
On April 2, 2015 OWCP issued appellant a schedule award for five percent permanent
impairment of his right upper extremity. It found that the weight of the medical evidence rested
with the medical adviser, who correctly applied the A.M.A., Guides.
On appeal, appellant argues that the ROM methodology can be used as a stand-alone
method for evaluating impairment. He adds that he believes the method that gives the employee
the higher evaluation should be used.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

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vested the authority to implement the FECA program with the Director of OWCP.2 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.3 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.4
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.6
ANALYSIS
The issue on appeal is whether appellant has more than five percent permanent
impairment of his right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.7
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal

2

See 20 C.F.R. §§ 1.1-1.4.

3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
6

Isidoro Rivera, 12 ECAB 348 (1961).

7

T.H., Docket No. 14-0943 (issued November 25, 2016).

3

justice under the law to all claimants.8 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.9
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the April 2, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

Supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the April 2, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 23, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Longview, TX, Employer
__________________________________________

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

Docket No. 09-57
Issued: July 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 6, 2008 appellant filed a timely appeal from a September 22, 2008 merit
decision finding that she received an overpayment of compensation and denying waiver of the
recovery of the overpayment.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $12,200.86 overpayment of
compensation because she received compensation for partial disability after she returned to fulltime employment with no loss of wage-earning capacity; and (2) whether she was at fault in the
creation of the overpayment and thus not entitled to wavier.

1

The record also contains a September 29, 2008 decision of the Office retroactively modifying its prior loss of
wage-earning capacity determination to find no loss of wage-earning capacity based on appellant’s full-time
earnings as a modified clerk and terminating her compensation benefits effective January 8, 2007. Appellant has not
appealed this decision and thus it is not before the Board at this time. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 23, 1984 appellant, then a 35-year-old letter carrier, filed a claim for a
traumatic injury to her back and hips occurring that date when she slipped on wet steps. The
Office accepted the claim for low back strain, a fractured sacrum, displacement of an
intervertebral disc, lumbosacral neuritis and psychogenic pain. Appellant stopped work on
March 23, 1984 and received compensation for total disability. She returned to work for four
hours a day on May 1, 1984 and to full-time work with restrictions on October 14, 1984. On
September 2, 1988 appellant accepted a permanent limited-duty assignment as a clerk.2
On November 12, 2002 appellant filed a recurrence of disability claim on May 22, 2002
due to her March 23, 1984 work injury. She began working six hours per day on September 18,
2002 due to an increase in low back pain and leg pain and weakness. On January 21, 2003 the
Office accepted that appellant sustained a recurrence of sprain/strain of the lumbar region and
upgraded her case to include a disc herniation at L5-S1.
In a decision dated April 2, 2003, the Office reduced appellant’s compensation based on
its finding that her actual earnings working 30 hours per week as a mail processing clerk
effective September 18, 2002 fairly and reasonably represented her wage-earning capacity. It
paid her compensation of $559.20 every four weeks for her loss of wage-earning capacity.
On January 5, 2007 appellant accepted a full-time position as a modified general clerk.
In a December 28, 2007 EN1032, she reported her earnings as a full-time modified clerk.
On July 10, 2008 the employing establishment notified the Office that appellant had
resumed full-time employment on January 8, 2007.
On July 25, 2008 the employing
establishment advised that effective January 8, 2007 she earned $48,623.00 and that the current
earnings for her date-of-injury position were $46,698.00.
On August 11, 2008 the Office determined that appellant received an overpayment of
$12,220.86 because she returned to work for eight hours per day on January 8, 2007 with no loss
of earnings but continued to receive compensation based on a loss of wage-earning capacity
determination from January 8, 2007 through July 5, 2008.
On August 20, 2008 the Office notified appellant of its preliminary determination that she
received an overpayment of $12,220.86 for the period January 8, 2007 through July 5, 2008
because she receive compensation for a loss of wage-earning capacity after she returned to fulltime employment. It calculated the overpayment by multiplying the amount that she received
each day for her loss of wage-earning capacity by the number of days it paid her during the
period in question. The Office then added adjustments for cost of living to find a total of
$12,220.86. It informed appellant of its preliminary determination that she was at fault in the
creation of the overpayment. The Office requested that she complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, it notified

2

By decision dated November 20, 1998, the Office denied appellant’s claim for a recurrence of disability from
February 25 to 27, 1998 causally related to her March 23, 1984 work injury.

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appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
On August 22, 2008 the Office divided appellant’s actual earnings by the current pay rate
for her date-of-injury position and determined that she had no loss of wage-earning capacity. On
August 26, 2008 it advised her of its proposed retroactive termination of her compensation based
on its finding that she had no loss of wage-earning capacity effective January 8, 2007.
On September 22, 2008 the Office finalized its finding that appellant received an
overpayment of $12,220.86 for the period January 8, 2007 through July 5, 2008 and that she was
at fault in the creation of the overpayment. It found that she should forward a check for the
entire amount as repayment of the overpayment.3
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.5
Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.6 The Office’s regulations state in pertinent part: “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”7
ANALYSIS -- ISSUE 1
Appellant sustained low back strain, a fractured sacrum, a displaced intervertebral disc,
lumbosacral neuritis, a disc herniation at L5-S1 and psychogenic pain due to a March 23, 1984
work injury. She stopped work on the date of injury, resumed part-time limited-duty
employment on May 1, 1984 and full-time limited-duty employment on October 14, 1984.
Appellant began working six hours per day on September 18, 2002 due to increased back pain.
On April 2, 2003 the Office reduced her compensation based on its determination that her actual
earnings as a mail processing clerk 30 hours per week effective September 18, 2002 fairly and
reasonably represented her wage-earning capacity. It paid her compensation for partial
3

On September 29, 2008 the Office finalized its retroactive modification of appellant’s loss of wage-earning
capacity to zero effective January 8, 2007. As previously noted, appellant has not appealed this decision and thus it
is not before the Board.
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

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disability. On January 5, 2007 appellant returned to work full time as a modified general clerk.
Her actual earnings as a modified general clerk of $48,623.00 exceeded the current earnings of
her date-of-injury position of $46,698.00; consequently, she had no loss of wage-earning
capacity. The Office, however, continued to pay compensation in accordance with the April 2,
2003 loss of wage-earning capacity determination. As appellant returned to a full-time position
with no loss of wage-earning capacity on January 5, 2007, she was not entitled to receive
compensation after that date. Accordingly, she received an overpayment of compensation.
The Office calculated the amount that it paid appellant for the period January 8, 2007
through July 5, 2008 by multiplying the compensation she received for partial disability each day
by the number of days she received compensation after she returned to full-time work and then
adding adjustments for cost-of-living increases, to find an overpayment of $12,220.86.
Appellant has not challenged either fact or amount of overpayment. The Board finds that she
received an overpayment of $12,220.86 for the period January 8, 2007 through July 5, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act8 provides, “[a]djustment 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 subchapter or would be against
equity and good conscience.” Section 10.433 of the Office’s implementing regulations9 provide
that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. 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.”
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.10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted payments which she knew or should have known were incorrect. Appellant
8

5 U.S.C. § 8129(b).

9

20 C.F.R. § 10.433.

10

Id. at § 10.433(b); Diana L. Booth, 52 ECA B 370 (2001).

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returned to full-time work with no loss of wages on January 8, 2007 but accepted payments of
compensation for partial disability until July 5, 2008. Each recipient of compensation benefits is
responsible for taking all reasonable measures to ensure that payments he or she receives are
proper11 and the recipient must show good faith and exercise a high degree of care in reporting
events that may affect entitlement to or the amount of benefits.12 It was not reasonable for
appellant to believe that she was entitled to receive compensation for partial disability because
she worked only 30 hours per week after she resumed full-time employment. Accordingly, the
Board finds that she was at fault in the creation of the overpayment and thus not entitled to
waiver of the recovery of the overpayment. As appellant was at fault in the creation of the
overpayment, she is not eligible for waiver of recovery of the overpayment. The Office is
required by law to recover this overpayment.13
On appeal appellant contends that she was not at fault in creating the overpayment but
that instead it was the fault of the employing establishment and the Office. Even if the
overpayment resulted from negligence on the part of the Office, this does not excuse the
employee from accepting payments which she knew or should have known that she was not
entitled.14 Appellant also argues that the Office should consider evidence that it was mailed on
September 17, 2008 but was not received until September 22, 2008, after the issuance decision.
The Board, however, has no jurisdiction to review newly submitted evidence on appeal.15 Any
new evidence would have to be resubmitted to the Office, along with a request for
reconsideration.
CONCLUSION
The Board finds that appellant received a $12,200.86 overpayment of compensation
because she continued to receive compensation for disability after she returned to full-time
employment. The Board further finds that she was at fault in the creation of the overpayment
and thus not entitled to waiver of the recovery of the overpayment.

11

See Russell E. Wageneck, 46 ECAB 653 (1995).

12

See Sinclair L. Taylor, 52 ECAB 227 (2001).

13

Recovery of the overpayment is not an issue in this case as appellant is not in receipt of continuing
compensation. With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. 20 C.F.R. § 10.441; see
Miguel A. Muniz, 54 ECAB 217 (2002).
14

Danny E. Haley, 56 ECAB 393 (2005).

15

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 22, 2008 is affirmed.
Issued: July 17, 2009
Washington, DC

David S. Gerson, 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.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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

Docket No. 07-1508
Issued: November 15, 2007

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 May 14, 2007 appellant filed an appeal of June 19, 2006 and March 13, 2007 merit
decisions of the Office of Workers’ Compensation Programs denying her traumatic injury claim,
and an April 30, 2007 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has established that she sustained a traumatic injury
on October 9, 2005 in the performance of duty; and (2) whether the Office properly refused to
reopen her case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 11, 2005 appellant, then a 57-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 9, 2005 she slipped on a plastic lid
in a pile of debris left on the workroom floor. She asserted that she sustained an acute strain and
spasm of her neck and shoulder, especially the left side. In the official supervisor’s report,

Thomas Dugdale controverted the claim, contending that there were no witnesses to the alleged
incident, and that the debris had been “put up” by appellant.
In a statement dated October 9, 2005, appellant indicated that, at approximately 3:15 p.m.
on that date, she slipped on a white plastic lid in a pile of debris left on the workroom floor. She
stated that, as she was walking to her work area, she slipped, “did the splits,” and caught herself
before she fell down. Appellant was shaken and scared but felt she was “doing O.K.”
Appellant submitted numerous witness statements dated October 9, 2005. Gary Naple, a
coworker, indicated that, on that date, appellant told him that she slipped on some trash and
debris, which he observed in the middle of her work area. Charles Whitney, a coworker, stated
that, on the date in question, appellant told him that her work area was dirty and that she had
injured her back while trying to prevent herself from falling. Ken Fletcher, a coworker, stated
that appellant informed him that she had slipped and fallen at approximately 3:30 p.m. Abelino
Ortiz, a coworker, indicated that, on the date of the alleged injury, appellant asked him if he had
seen her fall. Mr. Ortiz stated that he did not see her fall, but that he noticed a pile of debris on
the floor “with a plastic type about the size of a baseball.” Appellant told him that “she made a
split and broke the fall.” Nancy Kydney stated that, at approximately 3:30 p.m., appellant
showed her a pile of trash and labels in the middle of her work area, and indicated that she had
fallen. Luis Ferriera, a coworker, stated that he had been working 15 feet away from appellant
on the date of the alleged accident. He did not see appellant fall; nor did he see a pile of trash.
Mr. Ferriera did see a few labels on the floor, which he believed appellant had placed “to
convince her supervisor” and to “lay a plot” for her accident. On October 10, 2007 Octell
Howard, a coworker, indicated that, on October 9, 2005, appellant informed him that, while she
was putting items “up in the locker,” she slipped on a “pop top or something” in a pile of trash
left on the floor in her work area.
In an October 9, 2005 duty status report, Dr. S.J. Witt, a treating physician, indicated that
appellant had slipped on a plastic lid in a pile of debris left on the workroom floor. He diagnosed
an acute neck strain and recommended that appellant be placed on light duty, which included a
20-pound lifting restriction. In an October 9, 2005 attending physician’s report, Dr. Witt stated
that appellant slipped on a lid at work and caught herself with both arms, straining her neck and
left shoulder. He diagnosed left neck strain and shoulder spasm. In response to the question as
to whether he believed that appellant’s condition was caused by employment activities, Dr. Witt
placed a checkmark in the “yes” box.
Appellant submitted medical reports and notes from Dr. Laura Frigyes, a Board-certified
internist, for the period October 13, 2005 through February 6, 2006. On October 13, 2005
Dr. Frigyes indicated that, while at work on October 9, 2005, appellant “was walking and slipped
on a plastic cap on the floor and managed to grab onto the machinery and broke her fall, so she
did not fall but strained her upper shoulders and neck from grabbing on and catching herself.”
She diagnosed neck and left shoulder strain secondary to the alleged incident. On October 13,
2005 Dr. Frigyes stated that appellant slipped and fell on a plastic cap, caught herself, and
strained her neck and shoulders. She diagnosed muscle strain and restricted appellant from
lifting more than five pounds. In an October 25, 2005 attending physician’s report, Dr. Frigyes
diagnosed neck and upper back strain and recommended restrictions, including lifting no more
than five pounds and working no more than six hours per day. On October 27, 2005 she stated

2

that on October 9, 2005 appellant fell at work; caught herself; and strained her neck and upper
arms. On November 28, 2005 Dr. Frigyes indicated that appellant had an injury at work, “with
kind of a fall,” and injured her neck and upper back. In a description of the alleged October 9,
2005 incident, she stated that appellant slipped on a pile of debris on the workroom floor. In
work excuses dated December 6 and 7, 2005, Dr. Frigyes indicated that appellant was unable to
work due to severe neck pain. On January 3, 2006 she noted that appellant continued to
experience pain and stiffness in her neck and upper back, and recommended work restrictions,
including lifting no more than 10 pounds and working no more than three to four hours per day.
On February 3, 2006 Dr. Frigyes stated that appellant was distraught as a result of the way the
employing establishment had handled her traumatic injury case. She noted that appellant had
been hospitalized for post-traumatic stress disorder (PTSD), depression and anxiety and that she
was still experiencing neck pain.
Appellant submitted an October 9, 2005 report from Midwest Minor Medical, bearing an
illegible signature. The report indicated that appellant tripped on a lid at work, caught herself
with both arms and had neck and shoulder pain.
The record contains December 6 and 7, 2005 memoranda to the file from Jerry Jordan, an
injury compensation specialist, reflecting that appellant informed him that she was unable to
work on those dates because she was “hurting so much,” and that she could not drive. In a
December 12, 2005 memorandum, Mr. Dugdale, supervisor, informed Mr. Jordan that appellant
advised him on December 6, 2005 that she would be unable to work on December 6 and 7, 2005
because she would be receiving traction therapy.
The employing establishment initiated an investigation of the alleged October 9, 2005
incident. The record contains a December 20, 2005 investigative memorandum and related
exhibits, pertaining to appellant’s conduct and activity, prepared by Clayton Reeves, postal
inspector, who noted inconsistencies in the information reported by appellant. Mr. Reeves also
stated that appellant had demonstrated her ability to be active away from the employing
establishment, although she alleged that she was unable to work. The report indicated that
surveillance, video and gambling records showed that, since the alleged October 9, 2005
incident, appellant had gambled regularly at Ameristar Casino for periods longer than the sixhour work restriction, including October 12, 2005 and other days that she allegedly was unable
to work. Appellant was also observed driving, running, moving trash cans and pumping gas.
Exhibits included sworn statements from, and records of interviews with, appellant and
various coworkers and supervisors. On December 12, 2005 Nancy Kydney indicated that, on
October 9, 2005, appellant informed her that she had fallen and called her over to her work area
for the purpose of showing her a pile of labels on the floor. She noted that the pile was not
“spread out,” as it would likely have been had she fallen. Ms. Kydney indicated that she did not
witness the alleged incident, and that appellant did not seem upset or injured in any way. She
stated, “In the break room, there was disbelief that [appellant] had fallen.” In a December 12,
2005 interview, Ms. Kydney indicated that the pile of debris consisted of mailing labels and dust.
In a sworn statement dated December 12, 2005, Abelino Ortiz, a coworker, indicated that,
on the date in question, he noticed appellant looking at him as if something had happened to her.
She was holding onto two pieces of equipment and asked if he saw her fall. Mr. Ortiz indicated

3

that he did not see or hear appellant fall. Appellant showed him a pile of debris, in which he
observed a plastic cap the size of a baseball. She pushed the debris together with her foot,
explaining to Mr. Ortiz that she was doing so in order to show it to the supervisor. Appellant
told Mr. Ortiz that her neck and back were hurting. In a December 12, 2005 interview, Mr. Ortiz
stated that, on October 9, 2005, he was working approximately 25 feet away from appellant’s
work area. He indicated that he observed appellant holding onto a nutting truck and a
distribution case, as she said, “Did you see me fall?” Mr. Ortiz stated that he did not see her fall,
but that it appeared as though she had just gotten up and was in pain. He further indicated that
he saw a “little pile of labels and dust balls, and a plastic cap from a mailing tube” that was “off
to the side of [appellant].”
In a sworn statement dated December 9, 2005, Luis J. Ferreira, a coworker, indicated
that, on October 9, 2005, appellant called his attention to individual labels that were scattered on
the floor over a 16- by 20-foot area. Later, he saw a pile of debris and labels on the floor that
was not present earlier. Mr. Ferreira stated that he did not see appellant fall, and “did n[o]t
believe that it happened because [he] was right there.” In a December 9, 2005 interview,
Mr. Ferreira, the postal inspector, stated that, on the date in question, he saw no piles of debris
prior to the alleged incident. He stated that approximately 15 minutes after appellant allegedly
fell, he noticed a maintenance man taking photos of a “neat little pile of debris” in appellant’s
work area. Mr. Ferreira noted that he had been working approximately 15 feet from appellant’s
work area, and that he had not left his work area from the time appellant showed him the labels
until after the maintenance man arrived. He stated that “common sense told him that, if someone
slipped on a pile of debris, that the pile would have been scattered rather than remain in a neat
little pile.”
In a December 8, 2005 interview, Dennis Allen, manager, stated that he had not seen
appellant fall on October 9, 2005. He stated, “I was standing right across from the area -working there for some time. If she would have fallen, I would have known. Everyone down
there is in tight quarters. If something would happen, everyone would know. There are too
many people in this high traffic area for no one to have seen her slip. People come and go all the
time but no one saw her slip.”
In a December 12, 2005 interview with the postal inspector, appellant alleged that, at
about 3:15 p.m. on October 9, 2005, she was carrying a box of labels when she entered the flat
sorting area. She stated that there was a pile of debris on the floor, consisting of rubber bands,
paper and a plastic end cap from a mailing tube. Appellant indicated that, as she reached over an
orange hamper in order to put the box down, her foot hit the plastic cap and slipped forward and
out from under her. She stated that she fell over the orange hamper and that her neck snapped
backward and forward like a “whiplash.” Appellant allegedly grabbed the equipment on either
side of her and went down to her knees, hitting the side of her face on the equipment. She heard
a pop in her neck when her head hit the equipment and the contact left a bump on her head.
Appellant stated that she did not see any piles of debris prior to falling, only excess equipment.
She indicated that she left work due to nausea and vomiting on October 11 and 12, 2005, and that
she applied cold packs for nausea, and heat packs for neck and shoulder pain. Appellant also
stated that, on December 6 and 7, 2005, she was unable to work and required rest due to traction
therapy.

4

The record contains an October 11, 2005 “report of hazard,” in which appellant alleged
that a pile of debris had been left on the workroom floor. The record contains an October 12,
2005 accident report, bearing an illegible signature. The report indicates that, on October 9,
2005, appellant was working in a congested flat case work area. As she leaned across a machine
to place her label box on a flat case, appellant slipped on a plastic lid in a partially concealed
debris pile and caught herself on a machine. The incident allegedly resulted in an acute strain to
appellant’s left neck and shoulder. The record also contains photos of the work area where the
October 9, 2005 incident allegedly occurred.
In a report dated December 15, 2005, Dr. Wendy J. Spangler, a treating physician, and
Michele J. Julin, a physician’s assistant, stated that, at work on October 9, 2005, appellant,
“slipped and started to fall backwards and then caught herself and actually fell forward. She
caught herself with her arms but she did feel her neck snap backwards and then forwards.
Appellant had bumped her cheek actually on a hard counter and it disrupted a filling and she had
to go to the dentist.”
The record contains a January 12, 2006 notice of removal, whereby, the employing
establishment terminated appellant for unacceptable conduct. The establishment alleged that
appellant misrepresented her ability to work and engaged in activities inconsistent with her
alleged injury.
By decision dated June 16, 2006, the Office denied appellant’s claim on the grounds that
the fact of injury had not been established. It found that appellant’s statements and actions,
coupled with the results of the employing establishment investigation, failed to establish that the
alleged October 9, 2005 incident occurred at the time, place and in the manner alleged.
On January 9, 2007 appellant requested reconsideration. She alleged that she suffered
from mental illness at the time of the alleged October 9, 2005 fall, and that management took
advantage of her mental state. Appellant contended that the evidence established that the
incident occurred as alleged. She submitted copies of documents previously received and
considered by the Office, including: reports from Dr. Frigyes dated October 25 and
November 28, 2005; an October 9, 2005 report from Dr. Watt; an October 9, 2005 report of
hazard; an October 12, 2005 accident report; a copy of appellant’s October 9, 2005 statement;
and copies of October 9, 2005 witness statements from Mr. Whitney and Mr. Ortiz. Appellant
submitted a Blue Cross/Blue Shield benefit statement dated January 12, 2006, which extended
certification of the medical necessity of benefits for continued inpatient care at Nebraska
Medical Center from January 6 through 16, 2006.
In a report dated December 13, 2005, Dr. Frigyes stated that he had known appellant for
many years, and that she was an honest person. He opined that she had been hassled at work
because of her neck injury and her reduced schedule. Dr. Frigyes indicated that he had observed
her “go downhill, especially mentally.”
In a report dated January 19, 2006, Dr. David Schmidt, a treating physician, stated that
appellant had been depressed for more than two years. He provided diagnoses of depression and
PTSD, and indicated that she had been treated as an inpatient from January 6 through 18, 2006.
In an Immanuel Medical Center partial dismissal summary dated February 6, 2006, Dr. Schmidt

5

indicated that appellant had been admitted to the partial hospital program on January 17, 2006.
He indicated that she was depressed, having experienced multiple stressors, including a job loss
in December 2005.
Appellant submitted a May 21, 2006 decision from the Nebraska Appeal Tribunal,
Nebraska Workforce Development, Department of Labor. The tribunal found that the employer
had not met its burden under Nebraska employment security law to establish misconduct on the
part of appellant warranting disqualification from benefits. The tribunal concluded that, because
appellant suffered from mental illness, her behavior could not be found to be willful or malicious
to the degree necessary to constitute disqualifying misconduct.
In a letter dated February 27, 2007, the employing establishment contended that
appellant’s request for reconsideration should be denied. Mr. Jordan stated that although
appellant alleged in one report that she fell over an orange hamper, no such hamper appeared in
the photos taken of the work area. He contended that her alleged depression was not material to
the issue at hand and that, as the decision of the Nebraska Appeal Tribunal dealt with
unemployment benefits, it was irrelevant to potential benefits under the Act.
By decision dated March 13, 2007, the Office denied modification of its June 16, 2006
decision. The Office found that inconsistencies in the record cast serious doubt on the validity of
appellant’s claim, and that she had submitted insufficient factual evidence to establish that the
incident occurred at the time, place and in the manner alleged.
On March 18, 2007 appellant requested reconsideration. She contended that the evidence
was sufficient to establish that an accident occurred. Appellant stated that her erratic behavior
was due to her mental illness, for which she was first treated in April 2001; that her gambling
was associated with the manic side of her manic depression; and that most of her gambling
occurred on her days off. She submitted a definition of “mental illness” and an article entitled
“About Mental Illness,” both from unidentified sources.
In a letter dated January 24, 2007, Dr. Frigyes stated that appellant was originally treated
with Paxil for depression and anxiety in April 2001. He indicated that he had recently been
treating her for chronic pain syndrome and depression since, December 13, 2005.
In a report dated January 25, 2007, Dr. Gregory Keller, a Board-certified psychiatrist,
stated that he had been treating appellant since September 29, 2006 for major depressive
disorder. He indicated that appellant had suffered from life-long depression, which had become
more severe since her October 2005 work injury. Dr. Keller opined that appellant’s trauma
possibly led to increased anxiety, lack of confidence in work abilities and physical limitations,
secondary to the accident.
By decision dated April 30, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was irrelevant and insufficient to
establish that the incident occurred as alleged.

6

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.5
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances, and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). 5 U.S.C. § 8101(5).
See 20 C.F.R. § 10.5(ee).
6

See Betty J. Smith, supra note 5.

7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury to her neck and shoulder on October 9, 2005. There are
inconsistencies in the evidence which cast serious doubt on the validity of her claim.
Appellant has provided inconsistent versions of the alleged incident. In her original
statement accompanying the CA-1 form, she indicated that she slipped on a white plastic lid in a
pile of debris left on the workroom floor. Appellant stated that, as she was walking to her work
area, she slipped, “did the splits,” and caught herself before she fell down. She was shaken and
scared, but felt she was “doing O.K.” However, two months later, in an interview with the postal
inspector, appellant provided a different account of the incident, stating that she was carrying a
box of labels when she entered the flat sorting area. She claimed that there was a pile of debris
on the floor, consisting of rubber bands, paper and a plastic end cap from a mailing tube.
Appellant alleged that, as she reached over an orange hamper in order to put the box down, her
foot hit the plastic cap and slipped forward and out from under her; that she fell over the orange
hamper and her neck snapped backward and forward like a “whiplash;” and that she grabbed the
equipment on either side of her, went down to her knees, and hit the side of her face on the
equipment. She allegedly heard a pop in her neck when her head hit the equipment and the
contact left a bump on her head.10 Appellant did not explain why the details she provided on the
date of the alleged event differed substantially from those provided two months later.
The factual and medical evidence of record reflects appellant’s divergent reports of how
the alleged incident occurred. On the one hand, she initially stated that she injured herself while
trying to prevent a fall. Appellant told Mr. Whitney that she injured her back while trying to
prevent herself from falling. She told Mr. Ortiz that “she made a split and broke the fall.” On
the date of the alleged injury, Dr. Witt related appellant’s claim that she had slipped on a lid at
work and caught herself with both arms, straining her neck and left shoulder. On October 13,
2005 Dr. Frigyes indicated that, while at work on October 9, 2005, appellant “was walking and
8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

John W. Montoya, 54 ECAB 306 (2003).

10

The Board notes that the employing establishment controverted appellant’s claim, in part, on the grounds that
the photos taken at the time of the alleged incident did not show the presence of a hamper.

8

slipped on a plastic cap on the floor and managed to grab onto the machinery and broke her fall,
so she did not fall but strained her upper shoulders and neck from grabbing on and catching
herself.” An October 9, 2005 report from Midwest Minor Medical also indicated that appellant
tripped on a lid at work and caught herself with both arms. An October 12, 2205 accident report
indicates that, on October 9, 2005, as appellant leaned across a machine to place her label box on
a flat case, she slipped on a plastic lid in a partially concealed debris pile, and caught herself on a
machine. However, Dr. Spangler’s December 15, 2005 report reflects an entirely different
allegation. Appellant informed Dr. Spangler that, at work on October 9, 2005, she “slipped and
started to fall backwards and then caught herself and actually fell forward. She caught herself
with her arms but she did feel her neck snap backwards and then forwards. Appellant had
bumped her cheek actually on a hard counter and it disrupted a filling and she had to go to the
dentist.” She did not attempt to reconcile these conflicting reports.
The evidence of record does not support appellant’s allegation that she slipped on a white
plastic lid in a pile of debris left on the workroom floor. There were no eyewitnesses to the
alleged incident. Mr. Ortiz indicated that he did not see or hear appellant fall, but that, after the
alleged incident, she showed him a pile of debris, which included a white plastic cap. He noted
that appellant had pushed the pile of debris together with her foot in order to show it to the
supervisor. In a conflicting report, Ms. Kydney indicated that, after the alleged fall, appellant
called her over to her work area for the purpose of showing her a pile of labels on the floor. The
Board notes that appellant did not identify a white plastic lid in the debris. Appellant noted that
the pile was not “spread out,” as it would likely have been had she fallen. Ms. Kydney indicated
that she had not witnessed the alleged incident, and that appellant had not seemed upset or
injured in any way. She stated, “In the break room, there was disbelief that [appellant] had
fallen.” Mr. Ferreira stated that, prior to the alleged incident, appellant called his attention to
individual labels that were scattered on the floor over a 16- by 20-foot area. After appellant
allegedly fell, he saw a pile of debris and labels on the floor that was not present earlier.
Mr. Ferreira stated that he did not see appellant fall, and “did n[o]t believe that it happened
because [he] was right there.” He stated that, approximately 15 minutes after appellant allegedly
fell, he noticed a maintenance man taking photos of a “neat little pile of debris” in appellant’s
work area. Mr. Ferreira noted that he had been working approximately 15 feet from appellant’s
work area, and had not left his work area from the time appellant showed him the labels until
after the maintenance man arrived. He stated that “common sense told him that, if someone
slipped on a pile of debris, that the pile would have been scattered rather than remain in a neat
little pile.” Given the surrounding facts and circumstances, and her subsequent course of action,
appellant’s claim that she slipped on a white plastic lid in a pile of debris lacks credibility. The
Board finds that the statements of Ms. Kydney and Mr. Ferreira, who was working 15 feet away
from appellant at the time of the alleged incident, are of great probative value and, together with
appellant’s act of pushing the debris together in a neat pile, cast serious doubt on appellant’s
allegations.11
Appellant argued that her erratic behavior around the time of the alleged incident was due
to her mental illness. However, it is an analysis of the facts and circumstances surrounding the
alleged incident, rather than appellant’s mental state, that determines whether she has met her
11

Betty J. Smith, supra note 5.

9

burden of proof. Appellant also contends that the May 21, 2006 decision from the Nebraska
Appeal Tribunal established her entitlement to benefits under the Act. The decision of the
Nebraska Appeal Tribunal, which dealt with unemployment benefits under Nebraska
employment security law, is not relevant to the case at hand. Under Nebraska employment
security law, the burden is on the employer to establish disqualifying conduct on the part of a
claimant by the preponderance of the evidence. Under the Act, the burden is on appellant to
establish that her injury occurred at the time, place and in the manner alleged. Therefore, the
Tribunal’s finding that, because appellant suffered from mental illness, her behavior could not be
found to be willful or malicious to the degree necessary to constitute disqualifying misconduct,
does not establish the fact of injury in this case.12
Pursuant to the employing establishment’s investigation, appellant engaged in activities
inconsistent with her alleged injuries, including gambling on a regular basis, when she was
allegedly unable to work. Although her behavior subsequent to the alleged incident does not
bear directly on the fact of injury issue, it creates significant doubt as to appellant’s credibility.
Due to the inconsistencies in the evidence regarding the time, place and manner in which the
alleged incident occurred, the Board finds that appellant has failed to establish her claim.13
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,14 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations, which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that: shows that
the Office erroneously applied or interpreted a specific point of law; advances a relevant legal
argument not previously considered by the Office; or constitutes relevant and pertinent new
evidence not previously considered by the Office.15
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.16

12

The Board notes that the determination of an employee’s rights and remedies under other statutory authority
does not establish entitlement to benefits under the Act for disability. Under the Act, for a disability determination,
the employee’s injury must be shown to be causally related to an accepted injury or factors of employment. For this
reason, the determinations of other administrative agencies or courts, while instructive, are not determinative with
regard to disability under the Act. See Daniel Deparini, 44 ECAB 657 (1993). Findings made by the Merit Systems
Protection Board or Equal Employment Opportunity Commission may constitute substantial evidence relative to the
claim to be considered by the Office and the Board. See Donna Faye Cardwell, 41 ECAB 730 (1990).
13

See Caroline Thomas, 51 ECAB 451, 455 (2000).

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b).

16

20 C.F.R. § 10.608(b).

10

ANALYSIS -- ISSUE 2
Appellant’s March 18, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Appellant
merely reiterated her earlier contentions and argued that her erratic behavior was due to her
mental illness. Consequently, she is not entitled to a review of the merits of her claim based on
the first and second above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office. The Office denied appellant’s claim on the grounds that the fact of
injury was not established, as the evidence did not substantiate that the claimed event occurred as
alleged. However, the evidence submitted in support of appellant’s request for reconsideration
was either duplicative or irrelevant to the issue at hand.
Appellant submitted two doctors’ reports, describing her treatment for depression and
anxiety, and literature on the subject of mental illness. These documents are not relevant to the
issue decided by the Office, namely whether appellant established that the incident occurred at
the time, place and in the manner alleged. This type of information is prima facie insufficient to
warrant merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her March 18, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury on
October 9, 2005 in the performance of duty. The Board further finds that the Office properly
refused to reopen her case for further review of the merits of her claim under 5 U.S.C. § 8128(a).

11

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 30 and March 13, 2007 and June 19, 2006 are affirmed.
Issued: November 15, 2007
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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

)
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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2136
Issued: May 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from the March 20 and July 30, 2008
merit decisions of the Office of Workers’ Compensation Programs denying his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained injuries to his head, neck, buttocks and shoulders
while in the performance of duty on April 4, 2006.
FACTUAL HISTORY
On February 15, 2007 appellant, a 53-year-old customer service supervisor, filed a
traumatic injury claim alleging that he sustained injuries to his head, neck, buttocks and
shoulders on April 4, 2006, when the vehicle he was driving was struck by another vehicle in the
employing establishment parking lot while exiting a parking space.
The employing

establishment controverted the claim, contending that he was not injured in the alleged incident,
as evidenced by the fact that he waited 10 months to file his claim.
In a letter dated March 13, 2007, the Office informed appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted notes and reports from Dr. David Romano, a Board-certified
internist, for the period April 26 through November 13, 2006. On April 26, 2006 Dr. Romano
stated that appellant had been experiencing back pain for weeks, after being involved in a motor
vehicle accident in a parking lot at work. He indicated that appellant’s pain was worsening. On
August 31, 2006, referencing the April 4, 2006 motor vehicle accident in the employing
establishment parking lot, Dr. Romano related that appellant was out of work from May 19
through 30, 2006 due to back pain.
Appellant provided notes from Dr. David Rojer, a Board-certified orthopedic surgeon.
On June 26, 2006 Dr. Rojer stated that appellant complained of neck and back pain, which
started in April 2006, when someone backed into his vehicle in a parking lot at work. He
indicated that appellant’s pain was worsening. Dr. Rojer noted that he had diffuse tenderness
over the lumbosacral spine and pain over the sternocleidomastoid and trapezius muscles.
Radiographs of the cervical spine showed significant narrowing and osteophytes at the C5-6
level. Radiographs of the lumbosacral spine showed reasonable preservation of disc height
without obvious fracture, dislocation or bony abnormalities. On July 26, 2006 Dr. Rojer reported
appellant’s continuing neck and back pain, noting that he was stiff and had minimal antalgia. In
an August 17, 2006 disability slip, he diagnosed sprain of the lumbosacral and cervical spine.
Appellant was also treated by Dr. Jordan Fersel, a Board-certified anesthesiologist. On
September 19, 2006 Dr. Fersel stated that appellant was involved in a motor vehicle accident on
April 4, 2006 when his vehicle was struck by another vehicle in the employing establishment
parking lot. Appellant informed Dr. Fersel that he did not seek medical treatment on the date of
the incident because, although he was dizzy, he did not experience pain immediately following
the accident. Rather, pain developed slowly, radiating to his right lower extremity, and in his
neck, radiating into his shoulders. Dr. Fersel’s examination revealed decreased range of motion
of the cervical spine for right lateral rotation, flexion and extension, and decreased range of
motion of the lumbar spine for flexion, extension and right lateral rotation. He found decreased
sensation in the right and left lower extremities and decreased sensation in the right lateral upper
extremity. Deep tendon reflexes were decreased throughout the lower extremities, and there
were cervical and lumbar paraspinous muscle spasms.
Dr. Fersel diagnosed cervical
degenerative disc disease with protrusions at C3-4; cervical radiculopathy; lumbar bulging discs
at the L4-5 level; and lumbar radiculopathy. The record contains numerous follow-up reports for
the period October 10, 2006 through January 16, 2007 reflecting appellant’s continuing
complaints of neck and back pain. In an October 19, 2006 disability slip, Dr. Fersel diagnosed
sprain/strain of the back and neck.
In an undated statement, appellant indicated that his neck and back injuries sustained in
the April 4, 2006 motor vehicle accident were disabling. He stated that he failed to file a report

2

within 30 days because his supervisor informed him that the incident was not work related.
However, appellant alleged that he reported the accident to his supervisor immediately.
The record contains an accident report dated April 12, 2006, reflecting that on April 4,
2006 appellant’s vehicle was hit on the driver’s side, by another vehicle, in the employing
establishment parking lot. The report reflects that, immediately following the incident, appellant
complained of feeling stiff in his buttocks and hips, spasms, and pain in his neck and lower and
upper back.
By decision dated March 17, 2007, the Office denied appellant’s claim. Accepting that
the work incident occurred as alleged, the Office found that the medical evidence did not contain
a diagnosis that could be connected to the accepted event and, therefore, was insufficient to
establish that he had sustained an injury under the Federal Employees’ Compensation Act on
April 4, 2006.
On May 15, 2007 appellant requested an oral hearing, which was held on
December 18, 2007. He testified that he had not pursued his claim immediately following the
April 4, 2006 accident because his supervisor told him that it was “not a postal issue.” Appellant
explained that he had experienced difficulty obtaining medical reports due to the fees involved.
He reiterated his claim that he was unable to work due to neck, back and shoulder injuries
sustained in the April 4, 2006 accident.
By decision dated March 20, 2008, the hearing representative affirmed the Office’s
April 17, 2007 decision. The representative found that appellant had established that the April 4,
2006 motor vehicle accident had occurred, but that the medical evidence was insufficient to
establish a causal relationship between the accepted work incident and a diagnosed condition.
On April 11, 2008 appellant, through his representative, requested reconsideration. By
decision dated June 6, 2008, the Office denied appellant’s request for reconsideration, finding
that he had not raised a substantive legal question or submitted evidence sufficient to warrant
merit review.
On June 26, 2008 appellant, through his representative, again requested reconsideration.
In support of his request, appellant submitted a June 20, 2008 narrative report from Dr. Fersel,
who stated that he had been treating appellant since his April 4, 2006 motor vehicle accident,
when a coworker struck his car in the employing establishment parking lot. Dr. Fersel noted that
appellant had no neck or back pain at the time of the accident. He indicated that, “although there
may have been underlying arthritic conditions prior to the motor vehicle accident, these were not
manifest in any fashion until after the accident, due to their exacerbation by the forces of the
motor vehicle accident.” Dr. Fersel stated, “Therefore, it is my opinion that the pain and
discomfort were precipitated by the motor vehicle accident of April 4, 2006 and that the
preexisting arthritis was permanently aggravated.”
By decision dated July 30, 2008, the Office denied modification of its previous decisions,
finding that there was no rationalized medical evidence explaining how the accepted April 4,
2006 motor vehicle incident caused a diagnosed condition.

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LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.2 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.5
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
upon a complete and accurate factual and medical background, establishing causal relationship.6
However, it is well established that proceedings under the Act are not adversarial in nature, and

1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

Thomas L. Agee, 56 ECAB 465 (2005).

5

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

4

while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.7
The Office accepted that the April 4, 2006 motor vehicle accident occurred as alleged,
but found that the medical evidence did not contain a rationalized opinion establishing a causal
relationship between the accepted event and a diagnosed condition. The Board finds, however,
that the medical evidence of record supports that appellant sustained a work-related injury on
April 4, 2006.
Dr. Fersel opined that the April 4, 2006 accident was the proximate cause of appellant’s
back condition. On September 19, 2006 he described the accident, in which appellant’s vehicle
was struck by another in the employing establishment parking lot. Dr. Fersel noted that
appellant did not seek medical treatment on the date of the incident because, although he was
dizzy, he did not experience pain immediately following the accident. Rather, pain developed
slowly, radiating to his right lower extremity, and in his neck, radiating into his shoulders.
Dr. Fersel’s examination revealed decreased range of motion of the cervical spine for right
lateral rotation, flexion and extension, and decreased range of motion of the lumbar spine for
flexion, extension and right lateral rotation. He found decreased sensation in the right and left
lower extremities and decreased sensation in the right lateral upper extremity. Deep tendon
reflexes were decreased throughout the lower extremities, and there were cervical and lumbar
paraspinous muscle spasms. Dr. Fersel diagnosed cervical degenerative disc disease with
protrusions at C3-4; cervical radiculopathy; lumbar bulging discs at the L4-5 level; and lumbar
radiculopathy. The record contains numerous follow-up reports for the period October 10, 2006
through January 16, 2007 reflecting appellant’s continuing complaints of neck and back pain. In
an October 19, 2006 disability slip, Dr. Fersel diagnosed sprain/strain of the back and neck. On
June 20, 2008 he stated that he had been treating appellant since his April 4, 2006 motor vehicle
accident. Dr. Fersel indicated that, “although there may have been underlying arthritic
conditions prior to the motor vehicle accident, these were not manifest in any fashion until after
the accident, due to their exacerbation by the forces of the motor vehicle accident.” He opined
that appellant’s pain and discomfort were precipitated by the April 4, 2006 motor vehicle
accident, and that his preexisting arthritis was permanently aggravated. While Dr. Fersel’s
reports do not explain the physiological process whereby the motor vehicle accident aggravated
appellant’s arthritis, or caused a sprain or strain of the back or neck, they display a thorough
knowledge of the factual and medical background, and are consistent in indicating that
appellant’s diagnosed conditions were caused by the impact of the April 4, 2006 incident.
The remaining medical evidence of record also supports appellant’s claim. On April 26,
2006 Dr. Romano stated that appellant had been experiencing back pain for weeks, after being
involved in a motor vehicle accident in a parking lot at work, and that his pain was worsening.
On August 31, 2006, referencing the April 4, 2006 motor vehicle accident in the employing
establishment parking lot, he related that appellant was out of work from May 19 through 30,
2006 due to back pain. On June 26, 2006 Dr. Rojer stated that appellant began experiencing
neck and back pain in April, when someone backed into his vehicle in a parking lot at work. He
7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 6; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

noted that appellant had diffuse tenderness over the lumbosacral spine and pain over the
sternocleidomastoid and trapezius muscles. Radiographs of the cervical spine showed significant
narrowing and osteophytes at the C5-6 level. Radiographs of the lumbosacral spine showed
reasonable preservation of disc height without obvious fracture, dislocation, or bony
abnormalities. On July 26, 2006 Dr. Rojer reported appellant’s continuing neck and back pain,
noting that he was stiff and had minimal antalgia. In an August 17, 2006 disability slip, he
diagnosed sprain of the lumbosacral and cervical spine. While reports from Dr. Rojer and
Dr. Romano do not contain a definitive opinion as to the cause of appellant’s condition, their
reports confirm that appellant continued to be treated for his cervical and lumbar conditions,
which reportedly began on the date of the accepted work incident.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that he sustained an employmentrelated injury and are not contradicted by any medical or factual evidence of record. While the
reports are not sufficient to meet appellant’s burden of proof to establish his claim, they raise an
uncontroverted inference between his claimed condition and the accepted employment injury,
and are sufficient to require the Office to further develop the medical evidence and the case
record.8 On remand the Office shall obtain a rationalized opinion from a qualified physician as
to whether appellant’s current condition is causally related to the accepted incident, and shall
issue an appropriate decision in order to protect his rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.

8

See Virginia Richard, supra note 6; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the July 30 and March 20, 2008 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded for further
development consistent with this decision.
Issued: May 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
W.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
West Glacier, MT, Employer
_________________________________________

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

Docket No. 12-857
Issued: January 10, 2013

Case Submitted on the Record

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

JURISDICTION
On February 21, 2012 appellant, through his attorney, filed a timely appeal from a
January 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective July 17,
2011, based on his capacity to perform the duties of a motel desk clerk.
FACTUAL HISTORY
On August 7, 2007 appellant, a 58-year-old maintenance mechanic, filed a Form CA-2
claim for benefits, alleging that he developed a right knee condition causally related to
1

5 U.S.C. § 8101 et seq.

employment factors. OWCP accepted the claim for right medial meniscus tear. Appellant filed
multiple claims under which OWCP accepted the following conditions: lumbar sprain in case
number xxxxxx762; derangement of the posterior horn of the medial meniscus and
chondromalacia patella, left knee in case number xxxxxx327; and right lateral collateral ligament
sprain and derangement of the posterior horn of the medial meniscus in case number xxxxx017.
Appellant went off work on June 8, 2008, at which time OWCP commenced payment for
compensation for temporary total disability.
In a work restriction evaluation form dated March 17, 2008, Dr. Lawrence J. Iwersen, a
treating specialist in orthopedic surgery, found that appellant could work an eight-hour day. He
listed the following restrictions: no more than four hours per day of sitting and walking; no more
than two hours of walking, reaching, reaching above the shoulder, pushing, and pulling; no
lifting for more than one hour, not exceeding 50 pounds; no more than one half an hour of
bending, squatting, and kneeling and no climbing.
On August 28, 2008 OWCP referred appellant for vocational rehabilitation services,
based on Dr. Iwersen’s March 17, 2008 report.
In reports dated November 28, 2010 and March 11, 2011, a vocational rehabilitation
counselor summarized his efforts to find vocational training or suitable alternate employment for
appellant within his physical restrictions. The vocational counselor identified a position for
appellant listed in the Department of Labor’s Dictionary of Occupational Titles, motel desk
clerk, DOT #238.687-038. It was found to be within appellant’s restrictions, his vocational and
work history, education, skills and training so as to reflect his capacity to earn wages. The
vocational counselor found that there were a number of motel desk clerk jobs within a reasonable
commuting distance. The job was being performed in sufficient numbers as to make it
reasonably available to the claimant within his commuting area and there was a positive labor
market for the office clerk job.
By notice of proposed reduction dated April 22, 2011, OWCP advised appellant of its
proposal to reduce his wage-loss compensation as the factual and medical evidence established
that he was no longer totally disabled. Appellant had the capacity to earn wages as a motel desk
clerk, DOT ##238.687-038, at the rate of $300.00 per week, in accordance with the factors
outlined in 5 U.S.C. § 8115.2 It calculated that appellant’s compensation rate should be adjusted
to $2,056.00 each four weeks using the Shadrick3 formula. The case had been referred to a
vocational rehabilitation counselor, who had located positions as a motel desk clerk which he
found to be suitable for appellant, given his work restrictions and was available in his commuting
area. OWCP allowed appellant 30 days in which to submit any contrary evidence.
In a July 15, 2011 decision, OWCP reduced appellant’s compensation to reflect wageearning capacity effective July 17, 2011.

2

5 U.S.C. § 8115.

3

Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.2 (April 1995).

2

By letter dated July 27, 2011, appellant’s attorney requested an oral hearing, which was
held on November 10, 2011. At the hearing, appellant testified that he had no experience
working as a motel clerk. He stated that he applied for motel desk clerk jobs during the
rehabilitation process; he asserted, however, that he was unable to obtain employment because it
was off season for tourists, because he lacked computer experience and because there were no
openings.
By decision dated January 26, 2012, an OWCP hearing representative affirmed the
July 15, 2011 termination decision.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.4
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions given the nature of the employee’s injuries
and the degree of physical impairment, his or her usual employment, the employee’s age and
vocational qualifications and the availability of suitable employment.5 Accordingly, the
evidence must establish that jobs in the position selected for determining wage-earning capacity
are reasonably available in the general labor market in the commuting area in which the
employee lives. In determining an employee’s wage-earning capacity, OWCP may not select a
makeshift or odd-lot position or one not reasonably available on the open labor market.6
ANALYSIS
Dr. Iwersen indicated in his March 17, 2008 report that appellant could perform work for
eight hours per day with restrictions on sitting, walking, reaching, reaching above the shoulder,
pushing, pulling, lifting, bending, squatting, kneeling and climbing. The rehabilitation counselor
assigned to assist appellant in placement efforts identified a position as a motel desk clerk listed
in the Department of Labor’s Dictionary of Occupational Titles, appropriate for appellant based
on Dr. Iwersen’s work restriction evaluation. OWCP used the information provided by the
rehabilitation counselor of the prevailing wage rate in the area for a motel desk clerk, and
established that jobs in the position selected for determining wage-earning capacity were
reasonably available in the general labor market in the geographical commuting area in which
the employee lived, as confirmed by state officials. OWCP properly applied the principles set
forth in the Shadrick7 decision to determine appellant’s employment-related loss of wage-earning
capacity. It calculated that his compensation rate should be adjusted to $2,056.00 using the
4

Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28 ECAB 43 (1976).

5

Samuel J. Chavez, 44 ECAB 431 (1993); Hattie Drummond, 39 ECAB 904 (1988); see 5 U.S.C. § 8115(a);
A. Larson, The Law of Workers’ Compensation § 57.22 (1989).
6

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

7

Shadrick, supra note 3.

3

Shadrick formula. OWCP indicated that appellant’s salary as of December 12, 2007, the date he
stopped working, was $1,004.40 per week, which included $980.49 of base pay and $23.91 per
week of premium pay. It stated his current, adjusted pay rate for the job on the date of injury
was $1,098.14, which included $1,072.00 of base pay, and $26.14 of premium pay. OWCP
determinate that appellant was currently capable of earning $300.00 per week, the rate of a motel
desk clerk. Therefore OWCP determined that appellant had a 27 percent wage-earning capacity,
which when multiplied by 2/3 amounted to a compensation rate of $488.81. OWCP found that
his current adjusted compensation rate, per four-week period, was $2,056.00.
OWCP properly found that appellant was no longer totally disabled as a result of his
accepted conditions, and it followed established procedures for determining appellant’s
employment-related loss of wage-earning capacity. The Board therefore finds that OWCP met
its burden of justifying a reduction in appellant’s compensation for total disability in its July 15,
2011 decision.
Following the July 15, 2011 decision, appellant requested a hearing. He indicated that he
had attempted to find motel desk clerk jobs in his local geographical area but that there were
none available. The Board, however, has held that the fact that a claimant is not able to secure a
job does not establish that the work is not available or suitable. If the evidence establishes that
jobs in the selected position are reasonably available, the selection of such a position is proper
even though the employee has been unsuccessful in obtaining work.8 The Board therefore
affirms OWCP’s January 26, 2012 decision.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
July 17, 2011, based on his capacity to perform the duties of a motel desk clerk.

8

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 10, 2013
Washington, DC

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

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

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

5