United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, CARROLLWOOD
POST OFFICE, Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1739
Issued: September 16, 2013

Case Submitted on the Record

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

JURISDICTION
On August 9, 2012 appellant, through her attorney, filed a timely appeal from a June 18,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
On appeal, appellant contends that the employing establishment erred in issuing a letter
of warning for her failure to follow instructions. She never disobeyed her supervisors. A
decision issued by the Equal Employment Opportunity Commission (EEOC) reduced the letter
of warning to a discussion, which appellant contended was never held, and awarded her
monetary compensation.
1

5 U.S.C. § 8101 et seq.

On appeal, by way of a Memorandum of Justification of OWCP Decision, the Director
contends that appellant failed to establish that she sustained an emotional condition causally
related to a compensable factor of her federal employment. Appellant did not establish error or
abuse by the employing establishment with respect to the handling of administrative matters,
including issuance of a letter of warning and an investigation of workplace violence and resultant
emergency suspension. She also failed to establish a factual basis for her allegations that she
was harassed and discriminated against by a supervisor and coworker and that she was treated
disparately by the supervisor regarding an offer of overtime work.
FACTUAL HISTORY
On March 24, 2011 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim alleging that on March 22, 2011 she sustained depression and anxiety due to harassment, a
hostile work environment and misconduct by her supervisors and managers. She stopped work
on the date of injury and returned to full-duty work on April 23, 2011. In a March 24, 2011
narrative statement, appellant contended that on March 22, 2011 Delores Seuwin, a manager and
Laura Achamabeault, a clerk supervisor, came out to her route and placed her off work due to a
threat assessment involving physical contact she had with an employee. She was also asked to
sign a letter of warning dated March 15, 2011 regarding a March 2, 2011 incident. Appellant
contended that after a March 12, 2011 investigation of the March 2, 2011 incident she was not
given an opportunity to present evidence or an explanation. She claimed that on March 2, 2011
she cased mail with a purple tag on it to ensure timely delivery as instructed by her supervisor.
Appellant submitted an authorization for examination and/or treatment (Form CA-16)
dated March 24, 2011 and a March 28, 2011 duty status report from a physician who advised that
she had depression and anxiety and resulting total disability causally related to the March 22,
2011 incident.
By letter dated March 31, 2011, the employing establishment controverted appellant’s
claim, contending that her emotional reaction to a March 12, 2011 meeting with management
regarding the March 2, 2011 incident and the March 22, 2011 incident constituted administrative
or personnel matters which were not compensable under FECA.
By letter dated April 6, 2011, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested factual and medical evidence.
In a narrative statement, Rodney A. Johnson, an employee, related that on March 12,
2011 he was casing mail on appellant’s route when she aggressively grabbed mail from his
hands. Appellant pushed the right side of her body, including her right arm, shoulder and elbow
into his abdomen. She then slammed the mail onto a case and angrily told Mr. Johnson to “get
out of here.” During a March 25, 2011 investigative interview, Mr. Johnson stated that appellant
gestured with her thumb when she told him to get out. He felt threatened by her and reported
this incident to a shop steward. Mr. Johnson stated that appellant was a threat to everyone on the
floor.
In a March 14, 2011 letter, Daphne McClellan, a customer service supervisor, stated that
she interviewed appellant as part of an investigation concerning her failure to follow instructions.

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Brian Obst, a union steward, was present during the interview. Ms. McClellan stated that on
numerous previous occasions she had advised appellant about her responsibility to provide a
professional estimate in the morning. Appellant failed to do so on more than one occasion and
Ms. McClellan recommended the issuance of a letter of warning for her failure to follow
instructions. In an April 8, 2011 statement, Ms. McClellan related that proper procedures were
followed with regards to the March 22, 2011 incident. She noted the employing establishment’s
zero tolerance policy and its assessment team’s investigation of the March 12, 2011 incident
which concluded that body contact occurred. Ms. McClellan stated that appellant was given
union assistance as soon as possible and during questioning related to the above-noted incidents.
In a March 22, 2011 memorandum, Ralf Christiano, a customer service manager and
member of the threat assessment team, indicated that he interviewed several employees
including, appellant regarding the March 12, 2011 incident. Mr. Johnson stated that appellant
grabbed mail from him like a running back and pushed him aside. Brad Perez, an employee,
stated that he saw her grab flats from Mr. Johnson’s left arm. Appellant forearmed Mr. Johnson
in the chest, pushing him a step back. She then slammed the flats onto a case. Mr. Obst stated
that appellant was not in a good mood following her investigative interview. He saw her stumble
over a bucket at her case and heard her say get out and that she was back. Appellant contended
that she was not aggressive and made no contact with Mr. Johnson. She just grabbed flats from
his arm. Sophie Bezdek, an employee, stated that she was loading her parcel tub when she saw
appellant step over flat tubs. She heard appellant say get out. Ms. McClellan related that she did
not see anything and no one reported any physical contact. Nicky Johnson, a clerk, stated that
Mr. Johnson was casing mail when he was approached by appellant. She observed appellant
take mail from Mr. Johnson hand. Mr. Johnson stumbled back into a case. Mr. Christiano
determined that physical contact occurred. The ferocity or degree of contact was undeterminable
as there was no physical evidence left to identify damage to the person or objects.
Mr. Christiano concluded that the scope of the actions leading up to and the physicality of the
incident warranted a Priority 2 rating.
Responses to fact finding questions posed by the employing establishment’s investigation
of the March 12, 2011 incident were given by employees and appellant. On March 24, 2011
Ms. Bezdek stated that she did not see appellant make any contact with Mr. Johnson. On
March 24, 2011 Nicki Irvin, an employee, related that she saw appellant leaving the area of the
managers’ offices looking visibly upset. As appellant approached her route she saw Mr. Johnson
casing mail. She took mail out of his hands and he suddenly fell back. Appellant then stated
“get out of here” and threw the mail down onto a case. On March 29, 2011 she stated that no
other body part came in contact with Mr. Johnson when she took flats off his arms. Appellant
did not tell him to get out of here. She apologized to Mr. Johnson because he stepped backward
and she thought she had startled him. Appellant used poor judgment in taking the flats off his
arm. She asked Mr. Obst to tell Mr. Perez to stop spreading lies about her. Mr. Obst responded
by yelling that appellant should be worried about performing her work and job security.
Appellant claimed that in 28 years as a postal employee she had never put her hands on anyone
in a violent or threatening manner.
In an April 4, 2011 narrative statement, Ms. Seuwin related that procedures were properly
followed in the issuance of the letter of warning and removal of appellant off the clock under
emergency placement on March 22, 2011. Appellant was familiar with this procedure because

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she had previously received a letter of warning. Ms. Seuwin stated that appellant had filed a
grievance regarding the employing establishment’s actions. She also stated that employees were
trained about policies concerning discipline and violence when they first entered the employing
establishment.
A March 15, 2011 letter of warning stated that on March 2, 2011 appellant demonstrated
improper conduct as she failed to follow instructions. She took the purple mail despite being
specifically instructed not to do so. Appellant failed to provide a satisfactory explanation for her
action during a March 12, 2011 investigative interview. On April 2, 2011 she filed a grievance
regarding the letter of warning. Other documents from the employing establishment addressed a
priority risk scale used by its threat assessment team and its zero tolerance policy for workplace
violence. In e-mails dated March 24 and 29, 2011, the employing establishment agreed with the
threat assessment team’s determination.
Appellant refused to sign the March 15, 2011 letter of warning and Ms. Achamabeault
never advised her that she had a right to union representation. She was humiliated and degraded
when her badge was taken from her and she was ordered to leave the premises after receiving the
letter of warning.
Appellant contended that she was unable to answer questions during the March 12, 2011
investigative interview because of the amount of time that had elapsed since the March 2, 2011
incident and her notes were at home. During the interview, Mr. Obst raised his voice at her. He
stated that he was talking loudly because he did not think appellant understood what he was
saying. After this meeting, appellant returned to her case where she saw Mr. Johnson casing
mail. She said “hey” and took the mail from his arms.
Appellant alleged that on March 11, 2011 Ms. McClellan allowed Ms. Bezdek to work
off the clock despite Mr. Obst’s directive that employees should not work off the clock under
any circumstance.
On March 19, 2011 Ms. Seuwin advised appellant not to return to work until March 22,
2011 following her leave under the Family and Medical Leave Act from March 14 to 19, 2011
due to stress and depression because on March 14, 2011 Mr. Johnson had accused her of physical
contact. Following the March 22, 2011 incident, Ms. McClellan was given a detail assignment at
another station on April 21, 2011. She returned to her regular workstation on April 23, 2011.
Appellant claimed that carriers who were unhappy about Ms. McClellan’s absence whispered
about her. Mr. Perez and Ms. Bezdek were visibly upset about appellant’s return to work. On
April 25, 2011 Ms. Bezdek complained to Alan Peacock, a union president, that appellant was
casing mail too loudly. On April 30, 2011 David Bradley, a carrier, asked to see Mr. Obst to
express his displeasure about Ms. McClellan’s detail assignment.
Medical records dated April 5, 2007 to April 21, 2011 addressed appellant’s emotional
conditions and the causal relationship between these conditions and her employment.
In a May 16, 2011 decision, OWCP denied appellant’s claim. It found that the factual
evidence was insufficient to establish a compensable factor of employment. OWCP further

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found that since appellant did not establish a compensable employment factor, it was not
necessary to review the medical evidence of record.
On May 25, 2011 appellant requested a telephone hearing with an OWCP hearing
representative.
Medical evidence dated March 30 through October 18, 2011 addressed the causal
relationship between appellant’s emotional conditions and her employment. This evidence also
addressed her work capacity.
In a December 2, 2011 decision, OWCP’s hearing representative treated the traumatic
injury claim as an occupational disease claim as appellant alleged that her emotional condition
was caused by events that occurred over the course of several months. He affirmed the May 16,
2011 denial of the claim, finding that she did not establish a compensable factor of employment.
The hearing representative further found that since appellant did not establish a compensable
employment factor, it was not necessary to review the medical evidence of record.
On March 20, 2012 appellant, through her representative, requested reconsideration.
A March 13, 2012 EEOC settlement agreement stated that it should not be construed as
an admission of the violation of any statute, rule, regulation or legal obligation by any official,
employee or agent of the employing establishment. The employing establishment agreed to pay
appellant $1,000.00 in settlement of her claim. It also agreed to expunge from her files the
March 15, 2011 letter of warning which was reduced to an official discussion and March 22,
2011 letter which addressed her emergency placement in an off-duty status.
Medical records dated February 24, 2011 to March 6, 2012 addressed appellant’s
emotional conditions and causal relationship.
In a June 18, 2012 decision, OWCP denied modification of the December 2, 2011
decision, finding that appellant did not sustain an emotional condition related to factors of
employment within the performance of duty. Because appellant did not establish any
compensable factors of employment, it was not necessary to address the medical evidence.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.2 To establish that he or she sustained
an emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that he or she has an emotional or psychiatric

2

Pamela R. Rice, 38 ECAB 838 (1987).

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disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

Dennis J. Balogh, 52 ECAB 232 (2001).

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Id.

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ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler.11 Rather, appellant has
alleged error and abuse in administrative matters and harassment and discrimination on the part
of her managers and coworkers.
Appellant contended that Ms. Seuwin, Ms. Achamabeault, Mr. Obst, Mr. Perez,
Ms. McClellan, Mr. Berroth and Ms. Bezdek created a hostile work environment by subjecting
her to harassment and verbal abuse. She alleged that on March 22, 2011 Ms. Seuwin and
Ms. Achamabeault improperly removed her from her route as she did not have any threatening or
violent physical contact or engage in a verbal altercation with Mr. Johnson on March 12, 2011.
Appellant stated that she took flats off his arm and apologized to him. She apologized because
she thought she startled him. Appellant alleged that on March 22, 2011 Ms. Seuwin and
Ms. Achamabeault improperly issued the March 15, 2011 letter of warning as she followed her
supervisor’s instructions regarding the casing of mail with a purple tag. She claimed that she
was not given an opportunity to present evidence or an explanation regarding this incident.
Appellant refused to sign the letter of warning and contended that Ms. Achamabeault never
advised her that she had a right to union representation. She alleged that Mr. Obst yelled at her
in response to her request that he ask Mr. Perez to stop spreading lies about her. Appellant
claimed that he told her to worry about her work performance and job security. Mr. Obst also
raised his voice at her during the March 12, 2011 investigative interview because she could not
answer questions regarding the March 2, 2011 incident. Appellant stated that too much time had
elapsed since this incident and her notes about it were at home. She claimed that on March 10,
2011 Mr. Obst ignored her request that he talk to Ms. McClellan about the favoritism she showed
employees when assigning overtime work due to her reputation as a good supervisor. Appellant
claimed that Mr. Perez did not speak to her and Ms. Starbell and whispered, conspired and
laughed behind their backs. She alleged that he mocked her request for an apology from
Ms. Bezdek who on September 25, 2010 wrongly accused her of taking the annual leave
calendar and crossing out carriers’ names on it. Appellant alleged that Ms. McClellan was
vindictive due to her removal from the station on several occasions as a result of her actions
towards appellant by making inappropriate physical contact. On July 26, 2010 Mr. Gaskins did
not agree with her characterization of Ms. McClellan’s actions as vindictive, rather he stated that
they were malicious. He refused to ask appellant to stop. On November 4, 2010 Mr. Gaskins
advised her that the legal department believed that Ms. McClellan’s behavior was inappropriate
rather than harassment. Appellant was offered $500.00 and five days of administrative leave to
settle her claim. She contended that on October 1, 2010 carriers talked about her while
questioning Ms. McClellan’s removal and on November 10, 2010 they acted arrogantly towards
her when Ms. McClellan returned to work on that date. Appellant further claimed that
Ms. McClellan and Ms. Achamabeault double teamed her when she tried to provide a
11

Lillian Cutler, supra note 4.

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professional estimate at her case. She contended that Mr. Berroth dismissed her concern about
this incident. Appellant also contended that on January 11, 2011 Ms. McClellan dismissed her
request to stay out of her “personal bubble” as stupid. She contended that on March 11, 2011
Ms. McClellan allowed Ms. Bezdek to work off the clock even though employees were
instructed by Mr. Obst not to do so under any circumstance. Appellant alleged that on
October 6, 2010 Mr. Gaskins told her that employees were still talking about her and
Ms. Starbell. On September 24, 2010 Mr. Jordan stated, in response to her request for a letter
removing Ms. McClellan as her supervisor and administrative leave, that he could provide only
the former. On April 25, 2011 Ms. Bezdek complained to Mr. Peacock about appellant casing
mail too loudly. On April 30, 2011 Mr. Bradley wanted to talk to Mr. Obst to express his
displeasure about Ms. McClellan’s detail assignment. Appellant filed an EEOC grievance
regarding the March 22, 2011 incident and March 15, 2011 letter of warning. She informed
Mr. Jordan and Mr. Good about the June 19, 2010 incident.
Appellant’s contentions regarding the disciplinary actions,12 filing of an EEOC
grievance,13 a right to union representation,14 an investigation15 and assignment of work duties16
are administrative matters and not compensable absent a showing of error or abuse on the part of
the employing establishment. Although she has alleged error or abuse by her supervisors, she
did not submit any probative evidence establishing error or abuse regarding the above-noted
administrative matters. Regarding the March 12, 2011 incident, Mr. Johnson’s statements as
detailed by Mr. Christiano’s March 22, 2011 investigation indicated that appellant had physical
contact with him when she aggressively grabbed mail from his hands and pushed him with her
body. He also stated that there was a verbal altercation as appellant told him to get out of the
work area. Mr. Johnson was threatened by her actions and reported the incident to a shop
steward. Appellant denied any threatening or violent physical contact and a verbal altercation,
but she acknowledged that she took the flats of mail off Mr. Johnson’s arms and apologized to
him for her action. The statements of Mr. Perez, Ms. Johnson and Ms. Irvin indicate that they
observed physical contact as described by Mr. Johnson. Ms. Irvin, Mr. Obst and Ms. Bezdek
also heard appellant say “get out of here.” Mr. Christiano’s investigation determined that
physical contact occurred which he rated as Priority 2. Ms. McClellan and Ms. Seuwin stated
that proper procedures were followed in issuance of the March 15, 2011 letter of warning for the
March 2, 2011 incident and placement of appellant on emergency placement status as a result of
the March 12, 2011 incident. Ms. McClellan explained that the letter was issued because
appellant failed on numerous occasions to provide a professional estimate in the morning as
instructed. Ms. Seuwin noted the investigative finding that appellant’s actions on March 12,
2011 warranted a Priority 2 threat assessment. She and Ms. McClellan noted the employing
establishment’s zero tolerance policy for workplace violence. Ms. Seuwin stated that employees
12

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
13

Michael A. Salvato, 53 ECAB 666, 668 (2002).

14

Wanda G. Bailey, 45 ECAB 835 (1994).

15

J.F., 59 ECAB 331 (2008); Jimmy B. Copeland, 43 ECAB 339 (1991).

16

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

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were trained on this policy, as well as, the discipline policy when they first started work at the
employing establishment. Ms. McClellan stated that appellant was provided union assistance
regarding issuance of the letter of warning and emergency off-duty placement. Although the
employing establishment reduced the letter of warning to a discussion and expunged it and the
March 22, 2011 letter regarding the emergency placement from her files based on a March 13,
2012 EEOC settlement agreement, the Board has held that the mere fact that personnel actions
are later modified or rescinded does not, in and of itself, establish error or abuse on the part of
the employing establishment.17 Further, the employing establishment’s settlement payment of
$1,000.00 to appellant does not establish error or abuse as the agreement specifically stated that
it should not be construed as an admission of the violation of any statute, rule, regulation or legal
obligation by any official, employee or agent of the employing establishment. While
Mr. Gornick offered her $500.00 and five days of administrative leave to settle her harassment
claim based on the legal department’s finding that Ms. McClellan’s behavior was inappropriate
and not harassment, there is no decision finding error or abuse on the part of the employing
establishment. It is unclear as to the specific nature of appellant’s EEOC grievance referenced
by the December 10, 2010 EEOC settlement agreement in which the employing establishment
agreed to give her 10 days of administrative leave and investigate a statement made by
Mr. Perez, however, it contained no admission of error, fault or legal violation on the part of the
employing establishment. The Board finds that appellant has failed to establish a compensable
employment factor with regard to the above-noted administrative and personnel matters.
To the extent that incidents alleged as constituting harassment by a supervisor or
coworker are established as occurring and arising from appellant’s performance of her regular
duties, these could constitute employment factors. However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment or discrimination
did, in fact, occur. Mere perceptions or feelings of harassment do not constitute a compensable
factor of employment.18 An employee’s charges that he or she was harassed or discriminated
against, is not determinative of whether or not harassment or discrimination occurred.19 To
establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.20 The Board finds that the
factual evidence fails to support appellant’s claim for harassment. Appellant submitted
statements from Ms. Starbell which mainly noted her own problems of harassment by the
employing establishment. Ms. Starbell related that Ms. Bezdek accused appellant of removing
the leave calendar from supervisors’ desks. She noted, however, that Ms. Bezdek later
apologized to appellant. Appellant acknowledged her apology. Ms. Starbell’s statement that
Mr. Perez made a mockery of Ms. Bezdek’s apology is of a general nature and, therefore, is
insufficient to establish harassment on the part of the employing establishment. She did not
provide any specific details about Mr. Perez’s actions. Similarly, Ms. Starbell’s statements that
she and appellant were subjected to a hostile work environment after Ms. McClellan was
17

Paul L. Stewart, 54 ECAB 824 (2003).

18

Lorraine E. Schroeder, 44 ECAB 323 (1992).

19

See William P. George, 43 ECAB 1159 (1992).

20

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

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removed from their station on September 10, 2010, that Mr. Perez did not show any fear of
appellant as they sat in the break room on March 22, 2011, that she overheard him make a
derogatory remark about appellant on April 27, 2011 and that he told Ms. Nolan that appellant
had filed a sexual harassment claim against Ms. McClellan for calling her “hon” are of a general
nature and, therefore, are insufficient to establish harassment on the part of the employing
establishment. Mr. Boles initially agreed to provide a witness statement regarding the June 19,
2010 kissing incident, but later refused to do so. Appellant acknowledged that Ms. McClellan
denied her allegations of physical contact. As the factual evidence does not support her
allegation that she was harassed by the employing establishment, she has not established a
compensable factor of employment with respect to these allegations.
Regarding appellant’s allegation that she was verbally abused by Mr. Obst during the
March 12, 2011 investigative interview, the Board has generally held that being spoken to in a
raised or harsh voice does not of itself constitute verbal abuse or harassment.21 Appellant did not
submit any evidence such as, witness statements to corroborate her allegation of verbal abuse.
She noted Mr. Obst’s explanation that he talked loudly to her during the investigative interview
because he did not think that she understood what he was saying. The Board finds that appellant
has not met her burden of proof to establish verbal abuse.
Since appellant has not substantiated a compensable factor of employment as the cause of
her emotional condition, the Board will not address the medical evidence.22
On appeal, appellant contended that the employing establishment erred in issuing a letter
of warning for her failure to follow instructions as an EEOC decision reduced the letter of
warning to a discussion and provided a monetary award. As found above, EEOC decision did
not determine that the employing establishment committed error or abuse in handling this
administrative matter. The Board finds, therefore, that appellant has not established a
compensable employment factor under FECA.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty.

21

T.G., 58 ECAB 189 (2006).

22

Karen K. Levene, 54 ECAB 671 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the June 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 11-462
Issued: September 26, 2011

Case Submitted on the Record

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

JURISDICTION
On December 21, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated August 11, 2010 which denied her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by OWCP.
The last merit decision of record was OWCP’s April 10, 2009 decision. Because more than 180
days elapsed between the last merit decision to the filing of this appeal, the Board lacks
jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On February 13, 2009 appellant, then a 48-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that she developed left trigger thumb as a result
of picking up and holding various types of mail and parcels. She first became aware of her
condition in 2008 and of its relationship to her employment in 2009. Appellant sought medical
treatment in February 2009, stopped work on February 4, 2009 and notified her supervisor on
February 13, 2009.
In a December 2, 2008 report, Dr. Sachin Kapoor, Board-certified in internal medicine,
provided a final workers’ compensation report for a May 1, 2007 injury in claim No.
xxxxxx246.3 He reported that appellant had been a full-time letter carrier for two years and her
job entailed sorting, carrying and delivering mail by lifting, bending, stooping, gripping and
grasping. Dr. Kapoor reviewed appellant’s medical history and stated that she experienced
worsening right thumb pain around May 1, 2007. Appellant had been working modified duty
after she sustained an unrelated left elbow open fracture on January 1, 2007. As a result, her
modified duty entailed repetitive gripping and grasping with her right hand which caused her
right thumb pain, swelling and eventually triggering. Appellant underwent right thumb trigger
release on March 17, 2008. Dr. Kapoor noted that appellant complained of progressively worse
left thumb pain and triggering since September 2008. Physical examination of the left hand
revealed no deformity or swelling, no thenar or interosseous atrophy, limited range of thumb
motion, tender nodule at the base of the thumb along the flexor tendon with triggering and full
grip with discomfort. Dr. Kapoor diagnosed right trigger thumb and left trigger thumb. He
opined that appellant’s right thumb injury was causally related to her employment during the
course of her modified duty for left elbow fracture. Dr. Kapoor stated that the pain and
triggering of appellant’s left thumb began when she was off work and was not work related.
In a February 12 and March 6, 2009 work status note, Dr. Kapoor restricted appellant’s
work activities from February 12 to April 13, 2009 with no left handed repetitive gripping and no
lifting over five pounds.
By letter dated February 23, 2009, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a March 6, 2009 progress report, Dr. Kapoor reported that appellant complained of
pain at the volar base of her left thumb with intermittent catching. He noted that she was not
working because no modified duty was available. Upon physical examination of the left thumb,
3

Appellant’s right thumb claim is not before the Board. The record is void of any further information regarding
this claim, No. xxxxxx246.

2

Dr. Kapoor noted mild distress, left thumb with nodule along flexor tendon with tenderness to
palpation and limited range of motion. He diagnosed tenosynovitis of the hand. Dr. Kapoor
retracted his prior statement from his December 2, 2008 report which stated that appellant’s left
thumb trigger finger was not work related. After further review of appellant’s injuries and
treatment course, he opined that she suffered from progressively worse left thumb stenosing
tenosynovitis, secondary to overcompensation while recovering from right thumb surgery.
Dr. Kapoor noted that appellant’s pain was tolerable which allowed her to work, but upon
returning to repetitive gripping and lifting as required by her job, she experienced worsening
pain and left thumb triggering. He opined that, because her complaints of thumb pain were
during the course of her recovery from her work-related right thumb surgery, it should be
regarded as a compensable consequence and treated as a work-related injury.
By decision dated April 10, 2009, OWCP denied appellant’s claim finding that the
evidence failed to establish that the claimed medical condition was related to the accepted workrelated events.
On May 13, 2009 appellant requested an oral hearing before OWCP’s hearing examiner.
By decision dated June 16, 2009, the Branch of Hearings and Review denied appellant’s
request for an oral hearing finding that her request was not made within 30 days of the April 10,
2009 OWCP decision. The Branch of Hearings and Review further determined that the issue in
the case could equally well be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered which establishes that her condition was causally
related to factors of her federal employment.
On June 21, 2010 appellant requested reconsideration of OWCP’s decision. In support of
her request, she submitted a May 27, 2010 letter from OWCP which provided her with another
copy of OWCP’s June 16, 2009 decision after appellant alleged she never received it. OWCP
also provided her with information for her emotional condition claim under case No. xxxxxx462.
In a July 29, 2009 medical report, Dr. Michael F. Wright, Board-certified in family
medicine, reported that appellant was being stalked outside of her work and home. He diagnosed
her with acute anxiety.
By decision dated August 11, 2010, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.4
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.5 The
4

The Board notes that appellant submitted additional evidence after OWCP issued its August 11, 2010 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
5

20 C.F.R. § 10.607(a).

3

Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue that was decided by OWCP. The evidence must be
positive, precise and explicit and must be manifested on its face that OWCP committed an error.7
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.8
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.9 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.10 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.11 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.12
ANALYSIS
Appellant claims that she never received the June 16, 2009 decision. She did not assert
that her address changed or that the address used by OWCP was otherwise incorrect. The
address used by OWCP in its June 16, 2009 decision is the address of record and the same as the
one appellant used in her appeal to the Board. The Board has found that, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business,
such as in the course of OWCP’s daily activities, is presumed to have arrived at the mailing
address in due course.13 This is known as the mailbox rule.14 Appellant submitted no evidence

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

8

Annie L. Billingsley, 50 ECAB 210 (1998).

9

Jimmy L. Day, 48 ECAB 652 (1997).

10

Id.

11

Id.

12

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

13

M.Y., Docket No. 07-2202 (issued February 12, 2008).

14

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

4

substantiating why the presumption would not apply. Therefore, the Board finds that appellant
received the June 16, 2009 decision.
In its August 11, 2010 decision, OWCP properly determined that appellant failed to file a
timely application for review. An application for reconsideration must be sent within one year of
the date of the OWCP decision.15 A right to reconsideration within one year also accompanies
any subsequent merit decision on the issues.16 As appellant’s June 21, 2010 request for
reconsideration was submitted more than one year after the date of the last merit decision of
record on April 10, 2009, it was untimely. Consequently, she must demonstrate clear evidence
of error by OWCP in denying her claim.17
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In support of her request for reconsideration, appellant submitted a July 29, 2009
medical report from Dr. Wright who diagnosed appellant with acute anxiety and stated that she
was being stalked outside of her work and home. However, this evidence in insufficient to
establish that OWCP erred in its denial of appellant’s claim.18 Dr. Wright’s medical report
addressed a wholly different medical issue and failed to address appellant’s left thumb injury.
His report does not raise a substantial question as to the correctness of OWCP’s April 10, 2009
merit decision or demonstrate clear evidence of error.
While appellant addressed her disagreement with OWCP’s decision to deny her claim for
compensation, her general allegations do not establish clear evidence of error as her arguments
do not raise a substantial question as to the correctness of OWCP’s decision. The Board notes
that the underlying issue is medical in nature and the medical evidence submitted was not
sufficient to shift the weight of the evidence in her favor and establish that OWCP erred in
denying her claim.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

15

Supra note 5.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

17

See Debra McDavid, 57 ECAB 149 (2005).

18

See W.R., Docket No. 09-2336 (issued June 22, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the August 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Ms. Debra Hauser, for the appellant
Office of Solicitor, for the Director

Docket No. 13-558
Issued: June 19, 2013

Case Submitted on the Record

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

JURISDICTION
On January 15, 2013 appellant, through his representative, filed a timely appeal from the
September 14, 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of duty on February 15, 2011.
FACTUAL HISTORY
On May 18, 2010 appellant, then a 31-year-old Airway Transportation Systems
Specialist, sustained a traumatic injury as a result of falling to the ground due to a jet blast from a

1

5 U.S.C. § 8101 et seq.

departing aircraft. Appellant’s claim was accepted for a right wrist sprain and was later
expanded to include the acceptance of post-traumatic stress disorder (PTSD).
On December 14, 2011 appellant filed an occupational disease claim, stating that his
PTSD condition was aggravated by a new work incident. He alleged that on February 15, 2011
while he was working in the same location where he sustained his May 18, 2010 injury, he saw a
plane headed toward the runway where he was working, and that he began experiencing
flashbacks and had to abandon the area. Appellant also states that, after the incident, his anxiety
attacks he had been experiencing since the May 18, 2010 incident worsened, and made him
unable to concentrate on the alignment procedures. He also stated that his psychologist
diagnosed his condition as PTSD on March 17, 2011, when he learned for the first time that the
condition he had been suffering from was anxiety attacks.
In a report dated April 20, 2011, Dr. Todd M. Antin, a Board-certified psychiatrist,
related the history of the May 18, 2010 event. He thereafter explained that appellant had stopped
work entirely on March 18, 2011 because he felt unsafe at work.
By letter dated January 17, 2012, OWCP advised appellant that the evidence of record
was not sufficient to establish that the incident occurred as alleged. It requested that he submit
additional factual and medical evidence to the record, in support of his claim.
In a February 14, 2012 letter, the employing establishment controverted appellant’s
claim. The letter confirmed that the February 15, 2011 incident had in fact occurred, but noted
that appellant had not reported the incident, nor had he reported his subsequent anxiety attacks
and his inability to perform his job duties to his manager until March 18, 2011.
On February 22, 2012 OWCP received a September 19, 2011 letter from Dr. Antin
wherein he related that, following the May 18, 2010 incident, appellant did not return to the
airfield until February 25, 2011. Dr. Antin stated that the trigger that caused appellant’s
symptoms to emerge was an inabililty to repair a piece of equipment before the airport
turnaround occurred, which would bring aircraft near his workstation.
Appellant also submitted a February 7, 2012 report from Dr. Antin. In this report he
noted appellant’s initial May 18, 2010 injury as well as his surgical history, and stated the
following:
“As I have stated in previous reports, I believe [appellant] suffers from PTSD due
to a traumatic injury at work on May 18, 2010. It is true that [appellant] initially
went back to work after this event and attempted to overcome his psychological
setbacks before he became completely unable to work and temporarily totally
disabled on or after February 15, 2011. In my opinion, this second traumatizing
event served to unearth symptoms that began their formation at the time of the
initial etiologic trauma on May 18, 2010.
“Following the May 18, 2010 incident [appellant] did not return to the flight
line/airfield until February 15, 2011 due … [to] training…. The trigger that
caused [appellant’s] PTSD symptoms to emerge in an overwhelming fashion was
due to an inability to repair a malfunctioning piece of equipment before an airport
2

turn-around occurred which meant aircraft would be landing and taking off in
direct proximity of where he was standing.
“As a point of understanding, PTSD is a psychiatric disorder that can often lay
dormant until a stressor of sufficient magnitude is experienced that can reactivate
earlier traumas. As this relates to [appellant], I continue to opine that his initial
traumatic experience on May 18, 2010 was further worsened by further exposure
to dangerous work conditions on follow[-]up treatment, review of available
medical records, my education, training, experience and upon reasonable medical
certainty, the PTSD set forth in my diagnosis and findings arose out of an[d] in
the course of the employee’s employment and that said employment as an ATTS
and work duties required on February 15, 2011 contributed to an aggravation to
[appellant’s] now preexisting PTSD condition that has been TTD since
February 15, 2011. Currently, he is eligible to return to work when his employer
can find a modified position for him based on the limitations and restrictions I
have set.”
In a February 15, 2012 letter to OWCP, appellant’s representative stated that on
February 25, 2011 appellant was attempting to repair a malfunctioning piece of equipment on the
airfield, as the time grew closer to the airport turn around event, appellant experienced increasing
anxiety that led to PTSD.
On February 22, 2012 OWCP received a September 8, 2011 letter from the employing
establishment, to appellant, stating that Dr. Antin had indicated that appellant could return to
work with restrictions, but that there was no productive duties, commensurate with the medical
restrictions, available at the current time. Therefore the employing establishment would be
unable to accommodate appellant.
In an April 3, 2012 decision, OWCP denied appellant’s claim on the grounds that he had
not established that he sustained an injury on March 17, 2011, because his statement along with
the medical record related appellant’s condition to an incident which occurred on
February 15, 2011. It therefore concluded that he had not established that the incident occurred
in the performance of duty.
Appellant disagreed with the decision and requested reconsideration on April 30, 2012.
He noted that he had another claim for a March 18, 2011 injury, under claim number xxxxxx308.
Appellant explained that he had experienced psychiatric problems prior to March 17, 2011. He
resubmitted statements and medical reports. On May 3, 2012 OWCP received a notice of
proposed suspension, dated May 11, 2011, which detailed alleged careless work actions as of
February 24, 2011.
By decision dated July 2, 2012, OWCP again denied appellant’s claim on the grounds
that there was no evidence that any injury or event occurred on February 15, 2011.
Appellant again requested reconsideration. In a letter dated July 19, 2012, appellant’s
representative related that appellant had very little exposure to the airfield from August 2010 due
to out-of-town training demands. The trigger that caused appellant’s PTSD symptoms to emerge

3

in an overwhelming fashion occurred on February 15, 2011. Appellant was attempting to repair
malfunctioning equipment when he experienced increasing anxiety as the time for the aircraft
turnaround neared.
On September 14, 2012 OWCP denied modification of the prior decision.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established,
OWCP must then base its decision on an analysis of the medical evidence.2
The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.3
ANALYSIS
The Board notes that appellant’s claim should have been processed as a traumatic injury
claim and that appellant’s claimed date of injury is February 15, 2011.5
4

While OWCP denied appellant’s claim on the grounds that he had not established an
incident or injury on February 15, 2011, the Board finds that he has established that he was
performing his regular duties, maintaining aircraft on the airfield on February 15, 2011. In his
statement, appellant alleges that while he was repairing machinery on the airfield on
February 15, 2011 and the time neared for the aircraft turn-around, he experienced flashbacks
and anxiety attacks because he was injured previously in a similar work situation on
2

G.S., Docket No. 09-764 (issued December 18, 2009).

3

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

4

20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other injury caused by a specific event or
incident within a single workday or shift, whereas an occupational injury is defined as a condition produced in the
work environment over a period longer than a single workday or shift. As appellant’s exposure occurred only
during one work shift, it is being treated as a condition arising from a traumatic work incident within a single day.
See J.G., Docket No. 07-2371 (issued April 8, 2008).
5

While one of Dr. Antin’s reports and a letter from appellant’s representative related the date as February 25,
2011, it appears that these were typographical errors as the other evidence of record substantiates that the alleged
incident occurred on February 15, 2011.

4

May 18, 2010. While his manager asserts that appellant did not report his alleged injury until
March 18, 2011, after he had visited a psychiatrist; based upon the employing establishment’s
February 14, 2012 letter, it remains uncontroverted that appellant was performing machinery
maintenance out on the airfield, as the time for the aircraft turn-around approached on
February 15, 2011. As such, the Board finds that appellant was performing his regular assigned
duties on February 15, 2011, in the manner he described.
The Board finds however that appellant has not established that he sustained an injury on
February 15, 2011, due to a compensable factor of employment. In support of his claim,
appellant submitted several reports from his psychiatrist, Dr. Antin who provided his most
comprehensive summary of appellant’s claim in his February 7, 2012 report. Dr. Antin gave a
complete account of appellant’s prior injury of May 18, 2010, and a sufficiently detailed
description of the factual background of the February 15, 2011 incident. He thereafter opined
that appellant’s preexisting PTSD condition was aggravated by the February 15, 2011 work
incident. Dr. Antin stated that the trigger that caused appellant’s PTSD symptoms to emerge in
an overwhelming fashion was due to an inability to repair a malfunctioning piece of equipment
before an airport turn-around occurred which meant aircraft would be landing and taking off in
direct proximity of where he was standing. He rationalized this conclusion by stating that PTSD
is a psychiatric disorder that often lies dormant until a stressor of sufficient magnitude is
experienced that can reactivate earlier traumas, and that by being exposed to dangerous work
conditions on February 15, 2011 incident, appellant’s initial traumatic experience on May 18,
2010 was worsened.
The Board finds that Dr. Antin has not related appellant’s disability to the performance of
his regular work duties on February 15, 2011, but rather to his anticipation that the airport turnaround would occur, which would place him in the same danger he experienced on May 1, 2010.
The fear of being placed in what appellant perceived to be a dangerous environment, under these
circumstances, is essentially a fear of future injury. The Board has explained that the fear of
future injury is not a compensable factor of employment. This is true even if the employee is
found to be medically disqualified to continue in the employment because of the effect which
anticipated employment factors might have on the underlying condition. The fear that one might
sustain further injury is self-generated and not a compensable factor of employment.6
As Dr. Antin did not relate appellant’s diagnosed conditions to the actual performance of
his employment duties, but rather to his fear that the airport turn-around would occur and he
would be placed in a dangerous situation. He has not supported a finding that appellant’s
emotional condition occurred in the performance of duty on February 15, 2011.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition while in the performance of duty on February 15, 2011.

6

Joseph G. Cutrufello, 46 ECAB 285 (1994); see also D.T., Docket No. 12-1534 (issued April 10, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the September 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: June 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE COMPTROLLER OF THE
CURRENCY, Downers Grove, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0408
Issued: October 7, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On October 29, 2020 appellant sought appeal from a purported May 1, 2020 decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 21-0408.
The Board, having duly considered this matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3. This jurisdiction encompasses any final adverse
decision issued by OWCP within 180 days of the date appellant filed her appeal. 3
11

The Board notes that following the September 8, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

Although the case record as transmitted to the Board does contain a document from OWCP
dated May 1, 2020, it is an informational letter and, thus, does not constitute a final adverse
decision subject to review under 20 C.F.R. §§ 501.2(c) and 501.3(a). As there is no final adverse
decision over which the Board may properly exercise jurisdiction, the Board concludes that the
appeal docketed as No. 21-0408 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0408 is dismissed.
Issued: October 7, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

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

Docket No. 08-1474
Issued: December 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 24, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 7, 2007 that denied her claim for
compensation and a January 22, 2008 decision that denied her request for reconsideration.
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 established that she had an employment-related
disability for the period April 21, 2005 to April 4, 2006 causally related to her accepted lumbar
condition; and (2) whether the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On April 1, 2004 appellant, then a 46-year-old medical technician who worked
intermittently on a fee basis, filed a Form CA-1, traumatic injury claim, alleging that on
March 31, 2004 she injured her lower back and buttocks while manually moving a door. She
returned to modified duty on April 23, 20041 and on May 14, 2004 the Office accepted that she
sustained an employment-related lumbar strain.
Appellant began treatment with Dr. Susanti K. Chowdhury, an anesthesiologist, who
practices pain management. In treatment notes dated March 24, April 21 and May 3, 2005,
Dr. Chowdhury advised that appellant reported that she was required to work outside her
restrictions. He diagnosed lumbar radiculopathy and spondylosis and postlaminectomy
syndrome. In a May 10, 2005 report, Dr. Larry D. Horvath, a Board-certified osteopath
specializing in neurosurgery, noted that appellant was having trouble working and even walking
due to chronic low back pain, stating that she had a preexisting back condition for which she had
multiple back surgeries in the past. He advised that she had reached maximum medical
improvement, that she could continue to work light duty with permanent restrictions and
discharged her from his care. On June 16, 2005 Dr. Chowdhury noted that appellant was not
working and on July 19, 2005 Dr. Horvath noted appellant’s complaints of back and neck pain
and advised that she could perform light duty. He stated that he explained to her that she was at
maximum medical improvement and that she could apply for Social Security disability.
By letter dated June 28, 2005, the employing establishment informed the Office that light
duty had been provided since the inception of appellant’s claim and that she stopped work on
April 25, 2005 and had not returned. On August 4, 2005 appellant filed a Form CA-7, claim for
compensation, for April 23, 2005 and by letter dated August 22, 2005, the Office informed her
that she needed to furnish medical evidence establishing disability for work on the date claimed.
In a second August 22, 2005 letter, the Office accepted the additional condition of lumbar
radiculopathy.
Dr. Chowdhury continued to submit reports, additionally diagnosing cervical and lumbar
root injury. In an October 12, 2005 treatment note, he advised that appellant was temporarily
totally disabled from a physical and psychiatric standpoint.
On December 8, 2005
Dr. Chowdhury noted that she was working one hour a day and on February 6, 2006 that she had
increased her work to two hours daily. He advised that appellant could perform 15 hours of light
duty weekly.
By decision dated February 28, 2006, the Office denied appellant’s claim for wage-loss
compensation on April 23, 2005 on the grounds that the medical evidence did not support that
she was disabled from work on that day. Dr. Chowdhury continued to advise that appellant
could work 15 hours of light duty a week. On July 14, 2006 appellant filed a Form CA-7, claim
for compensation, for the period April 21, 2005 to April 4, 2006. In a July 26, 2006 letter,

1

Appellant’s job duties were described as general clerical support such as filing, answering the telephone and
follow-up telephone calls, making appointments with intermittent lifting of up to 10 pounds, no climbing, kneeling,
stooping, pulling or pushing.

2

the Office informed her of the type evidence needed to support her claim and by decision dated
December 8, 2006, denied her claim for compensation for the period April 21, 2005 to
April 4, 2006.
In a request postmarked January 12, 2007, appellant requested a hearing. By decision
dated February 21, 2007, the Office denied appellant’s hearing request on the grounds that it was
untimely filed and that the issue in the case could be addressed by requesting reconsideration.
On August 7, 2007 appellant requested reconsideration, stating, “I had Dr. Chowdhury remove
me from work because the VA lab supervisor wasn’t following the light duty orders,” and that
she was doing more walking, lifting, bending and sitting than she did in her regular position. She
submitted a July 12, 2007 report in which Dr. Chowdhury noted appellant’s complaint of
radiating low back pain aggravated by any type of activity. Dr. Chowdhury advised that she was
wearing a back brace, was not working and had undergone hand surgery.
By letter dated September 11, 2007, the employing establishment advised that appellant
was hired on temporary appointments, not to exceed September 30, 2005, that she worked on an
as needed basis and that, following her March 31, 2004 employment injury, she worked modified
duty. The employing establishment further stated that appellant did not complain that she was
made to work outside her restrictions. In a merit decision dated November 7, 2007, the Office
denied appellant’s claim for disability after April 21, 2005. On December 14, 2007 appellant
requested reconsideration and submitted correspondence with her Congressional representative,
including a November 30, 2007 letter from Meghan Kincaid, a mental health case manager,
asking that the Congressman help appellant with her workers’ compensation claim. In a
January 22, 2008 decision, the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act2 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.3 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
2

5 U.S.C. §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999).

5

Amelia S. Jefferson, 57 ECAB 183 (2005).

3

employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the period April 21, 2005 to April 4, 2006 causally
related to her accepted lumbar condition. The issue of whether a claimant’s disability is related
to an accepted condition is a medical question, which must be established by a physician who, on
the basis of a complete and accurate factual and medical history, concludes that the disability is
causally related to employment factors and supports that conclusion with sound medical
reasoning.8
On May 10, 2005 Dr. Horvath advised that appellant should continue to work light duty
and dismissed her from his care. His opinion therefore does not establish that appellant was
totally disabled beginning April 21, 2005. While Dr. Chowdhury noted appellant’s report that
she was forced to work outside her restrictions and advised on October 12, 2005 that she was
temporarily totally disabled from both physical and psychiatric standpoints, appellant stated on
August 7, 2007 that she had Dr. Chowdhury remove her from work because her supervisor was
not honoring her restrictions. The employing establishment advised, however, that light duty
was always available. The accepted condition in this case is lumbar strain and appellant had
preexisting back conditions with multiple surgeries. Dr. Chowdhury did not exhibit specific
knowledge of appellant’s job duties, did not explain why she could not perform her light-duty
position and did not address the period of claimed disability. Medical conclusions unsupported
by rationale are of diminished probative value and are insufficient to establish causal relation.9
The Board therefore finds that his reports are insufficient to establish that appellant was disabled
from April 21, 2005 to April 23, 2006.10 As there is no rationalized medical evidence
contemporaneous with the period of claimed disability to support that appellant was disabled
from her light-duty job for the April 21, 2004 to April 4, 2006, she did not meet her burden of
proof.11

6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

7

Amelia S. Jefferson, supra note 5.

8

Sandra D. Pruitt, 57 ECAB 126 (2005).

9

Albert C. Brown, 52 ECAB 152 (2000).

10

Paul E. Thams, 56 ECAB 503 (2005).

11

Conard Hightower, 54 ECAB 796 (2003).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.12 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).13 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (1) shows that the
Office erroneously applied or interpreted a specific point of law; (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.14 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.15
ANALYSIS -- ISSUE 2
In her December 14, 2007 request for reconsideration, appellant merely checked a form
that she was requesting reconsideration. She therefore did not allege or demonstrate that the
Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office. Consequently, appellant 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).16
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted correspondence with her Congressional representative’s office in which she asked for
help regarding her workers’ compensation and Social Security claims and a November 30, 2007
letter from Ms. Kincaid, also asking the representative’s help. Ms. Kincaid is a mental health
case manager. Section 8101(2) of the Act provides that the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.17 Lay individuals, such as
a case manager, are not competent to render a medical opinion under the Act.18 The merit issue
in this case is whether appellant established that she was disabled from her light-duty position for
the period April 21, 2005 to April 4, 2006. This requires the submission of competent medical
12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.608(a).

14

Id. at § 10.608(b)(1) and (2).

15

Id. at § 10.608(b).

16

Id. at § 10.606(b)(2).

17

Thomas O. Bouis, 57 ECAB 602 (2006).

18

See David P. Sawchuk, 57 ECAB 316 (2006).

5

evidence that addresses the specific dates of claimed compensation.19 No such evidence was
submitted with appellant’s December 14, 2007 reconsideration request. As appellant did not
submit relevant and pertinent new evidence not previously considered by the Office, it properly
denied her reconsideration request by its January 22, 2008 decision.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
totally disabled for the period April 21, 2005 to April 4, 2006 causally related to her accepted
lumbar condition and that the Office properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 22, 2008 and November 7, 2007 are affirmed
Issued: December 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

19

Amelia S. Jefferson, supra note 5.

6


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

)
)
)
)
)
)
)
)

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

Docket No. 14-769
Issued: December 9, 2014

Case Submitted on the Record

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

JURISDICTION
On February 21, 2014 appellant filed a timely appeal from a December 30, 2013 decision
of the Office of Workers’ Compensation Programs (OWCP) that found she received an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,715.67 because she received FECA compensation after her return to work for the
period December 3, 2012 through January 29, 2013 and because compensation was based on an
incorrect pay rate for the period September 23, 2012 through January 29, 2013; and (2) whether
OWCP properly denied waiver of the overpayment.
On appeal appellant generally asserts that she is entitled to waiver because she was caring
for her grandmother.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 7, 2008 appellant, then a noncareer 46-year-old letter carrier, sustained injury
when a dog charged her while she was delivering mail. She fell which caused neck and back
pain. Appellant stopped work that day.2 OWCP accepted that she sustained multiple contusions,
neck and lumbar sprains, displacement of lumbar intervertebral disc without myelopathy, and
aggravation of lumbar degenerative disc disease. Appellant returned to full duty on June 24,
2008 and continued to work full duty until her appointment expired on September 22, 2008.
On December 20, 2008 appellant began work with the Department of Veterans Affairs
(VA) Health Care System.3 She continued in that position until February 23, 2012 when she
underwent lumbar surgery. Appellant was placed on the periodic compensation rolls, based on a
weekly pay rate of $823.20. She returned to full duty at the VA on June 1, 2012.4 Appellant
again stopped work on September 24, 2012 and filed Form CA-7 claims for wage-loss
compensation.5
By decision dated November 14, 2012, OWCP found that an overpayment of
compensation had been created for the period February 23 through June 2, 2012 in the amount of
$8,577.25. Appellant received compensation from the VA for sick and annual leave and FECA
benefits for this same period.
In a report dated December 27, 2012, Dr. Marvin E. Van Hal, a Board-certified
orthopedic surgeon, provided a second opinion evaluation for OWCP. He found that appellant
could work full time with a restriction on heavy lifting, and that she had been able to work since
September 24, 2012, following her postsurgery release on August 29, 2012. Appellant’s
attending physician, Dr. Louise Lamarre, Board-certified in emergency medicine, agreed with
Dr. Van Hal’s conclusion. On January 29, 2013 OWCP authorized payment of compensation for
the period September 24, 2012 to January 29, 2013, totaling $10,961.80, based on a weekly pay
rate of $823.20. The amount of the outstanding overpayment for the period February 23 to
June 2, 2012, $8,577.25, was deducted from the compensation due, yielding net compensation of
$2,384.55.6
2

The instant claim was adjudicated by OWCP under file number xxxxxx184. Appellant has a separate claim,
adjudicated under file number xxxxxx631, for a traumatic injury that occurred on November 17, 2007, accepted for
lumbar strain. Under that claim, by decision dated November 18, 2009, OWCP denied her claim for compensation
for the period November 17, 2007 to March 28, 2008. The files were doubled on February 11, 2013, with the claim,
file number xxxxxx 631, becoming the master file.
3

At the VA, appellant initially worked as a food service worker and later became a nursing assistant.

4

An overpayment in the amount of $169.85 was created because appellant received FECA compensation after
her return to work. It was administratively terminated because a collection action would exceed the expected
recovery. The record indicates that appellant returned to full duty on May 14, 2012.
5

Appellant returned to work at the VA on December 3, 2012.

6

On February 10, 2013 appellant filed a schedule award claim. By decision dated May 14, 2013, OWCP denied
the schedule award claim on the grounds that the medical evidence did not support a permanent impairment to a
scheduled member or function.

2

On September 11, 2012 the employing establishment informed OWCP that appellant’s
pay rate was $30,290.94 a year. On November 7, 2013 the VA informed OWCP that appellant’s
pay rate, effective February 23, 2012, was $32,204.00 per year, with sporadic premium pay of
$904.68 for Sunday premium, $20.02 for night differential, and $915.84 for holiday pay.
By letter dated November 19, 2013, OWCP issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $6,715.67 because she was
paid compensation at an incorrect pay rate for the period September 23, 2012 through
January 29, 2013 and for a period of that time, December 3, 2012 through January 29, 2013, she
received compensation after her return to work. It explained the calculation of the overpayment
and found her not at fault in its creation. Appellant was provided an overpayment action request
form and an overpayment questionnaire.7 An overpayment work sheet indicates that for the
period September 24, 2012 to January 29, 2013 appellant received compensation of $10,961.80
when she should have received compensation of $4,246.13, yielding an overpayment of
$6,715.67. The worksheet indicated that the annual pay rate provided by the VA of $32,204.00
yielded a weekly pay rate of $619.31 and sporadic increments of $915.84 yielded an additional
$17.61 per week, for a total weekly pay rate of $636.92. Appellant did not respond to the
preliminary overpayment finding.
By decision dated December 30, 2013, OWCP finalized the overpayment decision. It
found that appellant was not at fault in the creation of the overpayment but that, as she did not
respond to the preliminary decision, she did not meet the criteria necessary to waive the
overpayment. OWCP ordered repayment at the rate of $200.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.8
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA 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.9 Section 10.500 of OWCP’s regulations provide that “compensation for
wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.”10

7

In a November 12, 2013 decision, OWCP had initially determined that appellant received an overpayment of
compensation in the amount of $10,724.45. By letter dated November 19, 2013, it informed appellant that the
November 12, 2013 decision was vacated, based on new information regarding her pay rate with the VA.
8

5 U.S.C. § 8102(a).

9

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

10

20 C.F.R. § 10.500.

3

OWCP procedures provide that, if the employee did not stop work on the date of injury
or immediately afterwards, defined as the next day, the record should indicate the pay rate for the
date of injury and the date disability began. The greater of the two should be used in computing
compensation and if they are the same, the pay rate should be effective on the date disability
began.11 The procedures further indicate that administrative inclusions should be included in
computing an employee’s pay rate, including night differential, shift differential, holiday pay,
and premium pay for weekend work.12
ANALYSIS -- ISSUE 1
The Board finds this case is not in posture for decision. The record supports that
appellant received wage-loss compensation for the period September 24, 2012 to January 29,
2013, totaling $10,961.80, from which an outstanding overpayment of $8,577.25 was deducted.
Appellant returned to work on December 3, 2012. She would not be entitled to wage-loss
compensation for any period after her return to work and an overpayment of compensation
would exist for the period December 3, 2012 to January 29, 2013.13 Another basis for finding
the overpayment of $6,715.67 at issue in this case is that appellant was compensated at an
incorrect pay rate. OWCP obtained pay rate information from the VA, appellant’s employer on
the day disability began on September 24, 2012. The VA indicated that appellant’s pay rate,
effective February 23, 2012, was $32,204.00 per year, with sporadic increments of $904.68 for
Sunday premium, $20.02 for night differential, and $915.84 for holiday pay. An overpayment
worksheet indicates that, in calculating appellant’s sporadic pay, the holiday pay of $915.84, or
$17.61 weekly, was included by OWCP in finding a weekly pay rate of $636.92. OWCP did not
address whether her sporadic Sunday premium pay and night differential should be included in
its calculations. As noted above, in calculating pay rate, administrative inclusions include night
differential and Sunday premium pay, as well as holiday pay.14 An annual rate of pay of
$32,204.00 yields a weekly pay rate of $619.31. The annual total for appellant’s sporadic
increments is $1,840.54, for an additional $35.40 weekly, or a total weekly pay rate of $654.71.
OWCP did not adequately address the basis for fact or amount of the overpayment in this
case. The case will therefore be remanded to OWCP to determine appellant’s correct pay rate,
recalculate the overpayment, and then issue an appropriate final decision with a clear explanation
of how it calculated her pay rate and the overpayment. After this and such further development
deemed necessary, OWCP should render a de novo overpayment decision.
As the amount of the overpayment is not yet established, it is premature to address
appellant’s eligibility for waiver.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(September 2011).
12

Id. at Chapter 2.900.6(b) (March 2011).

13

20 C.F.R. § 10.500.

14

Supra note 12; see Madelyn Y. Grant, 57 ECAB 533 (2006).

4

CONCLUSION
The Board finds this case is not in posture for decision regarding the amount of the
overpayment of compensation.15
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: December 9, 2014
Washington, DC

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

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

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

15

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider
this evidence, however, as its review of the case is limited to the evidence that was before OWCP at the time it
rendered its final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

5