United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lorain, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0365
Issued: April 26, 2017

Case Submitted on the Record

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

JURISDICTION
On December 7, 2016 appellant, through counsel, filed a timely appeal from an
October 24, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than seven percent permanent impairment of the
right upper extremity, for which he previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 9, 2012 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when he tripped on a
curb and fell to the ground. He stopped work on January 9, 2012. OWCP accepted the claim for
a sprain of the right shoulder and upper arm and a right rotator cuff tear. It paid appellant
compensation for total disability beginning February 24, 2012.
On March 27, 2012 appellant underwent a right rotator cuff repair with subacromial
decompression and debridement at the glenohumeral joint, labrum, biceps, and rotator cuff. He
returned to work full time with restrictions on December 12, 2013.
Appellant, on November 18, 2014, filed a claim for a schedule award (Form CA-7). By
letter dated December 5, 2014, OWCP requested that he submit a report from his attending
physician addressing the extent of any employment-related permanent impairment in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (hereinafter A.M.A., Guides).3
By decision dated March 23, 2015, OWCP denied appellant’s schedule award claim. It
noted that he had not submitted an impairment evaluation as requested.
On March 30, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In a March 31, 2015 impairment evaluation, Dr. Catherine Watkins Campbell, Boardcertified in family practice, discussed appellant’s history of injury and reviewed his functional
status questionnaire. On examination, she found tenderness at the acromioclavicular joint and
anterior glenohumeral and 4/5 muscle strength of the shoulder possibly related to pain.
Dr. Watkins Campbell measured range of motion (ROM) of the right shoulder three times.
Referencing the sixth edition of the A.M.A., Guides, and utilizing the ROM methodology, she
opined that appellant had 20 percent permanent impairment of the right upper extremity.
An OWCP medical adviser reviewed the report from Dr. Watkins Campbell on June 25,
2015 and disagreed with her use of the ROM method as it was a “less preferred” method of
rating impairment under the A.M.A., Guides. He further determined that, under Table 15-34 on
page 475, appellant had 10 percent rather than 20 percent permanent impairment of the right
upper extremity due to loss of motion. Utilizing the diagnosis-based impairment (DBI) method,
the medical adviser identified the diagnosis as a class 1 full-thickness rotator cuff tear with
residual dysfunction using Table 15-5 on page 403, which yielded a default value of five percent.
He applied grade modifiers and concluded that appellant had seven percent permanent
impairment of the right upper extremity.
By decision dated December 2, 2015, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right upper extremity. The period of the award ran
for 21.84 weeks from January 22 to June 23, 2015.
3

A.M.A., Guides (6th ed. 2009).

2

Appellant, through counsel, on December 8, 2015 requested a telephone hearing. At the
telephone hearing, held on August 9, 2016, he argued that ROM was a valid basis for a schedule
award rating.
In a decision dated October 24, 2016, OWCP’s hearing representative affirmed the
December 2, 2015 decision. She found that the opinion of OWCP’s medical adviser constituted
the weight of the evidence and established that appellant had no more than seven percent
permanent impairment of the right upper extremity.
On appeal counsel argues that the A.M.A., Guides provide that the evaluator should use
the method that provides the maximum impairment rating. He cites T.H.4 in support of his
request to remand the case.
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
vested the authority to implement the FECA program with the Director of OWCP.5 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.6 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.7
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).8 The Board has approved the use by OWCP of the A.M.A.,

4

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

5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
7

5 U.S.C.

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

8

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).

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Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue on appeal is whether appellant has more than seven percent permanent
impairment of the right upper extremity, for which he previously received a schedule award.
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.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 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.12
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 October 24, 2016
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.

9

Isidoro Rivera, 12 ECAB 348 (1961).

10

Supra note 4.

11

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

12

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 26, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF DEFENSE, ANDREWS AIR
FORCE BASE, MD, Employer
__________________________________________

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

Docket No. 09-740
Issued: October 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 January 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 16, 2008 denying his occupational 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 has met his burden of proof in establishing that he
sustained an injury causally related to factors of his federal employment.
FACTUAL HISTORY
On July 24, 2008 appellant, a 53-year old firefighter, filed an occupational disease claim
(Form CA-2) alleging that he developed severe glaucoma as a result of employment activities.
He stated that, during his 25 years as a firefighter, he was exposed to many hazards, including
chemical spills, asbestos fumes, fuel and gasses. Appellant indicated that he had 20/20 vision
when he became a firefighter.

In a letter dated September 3, 2008, the Office informed appellant that the evidence
submitted was insufficient to establish his claim. It advised appellant to submit details regarding
the employment duties or exposure he believed caused or contributed to his claimed condition, as
well as a comprehensive medical report from a treating physician, which contained symptoms, a
diagnosis and an opinion with an explanation as to the cause of his diagnosed condition. In a
separate letter dated September 3, 2008, the Office asked the employing establishment to
respond to the accuracy of appellant’s allegations and to provide any appropriate supportive
evidence.
On September 14, 2006 appellant informed the Office that Denise Tice of the employing
establishment was in the possession of medical documentation relating to his claim.
By decision dated October 16, 2008, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that the events or exposure occurred as alleged and
that there was no medical evidence which provided a diagnosis which could be connected to the
claimed events.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
1

Appellant submitted additional evidence after the Office’s October 16, 2008 decision; however, the Board
cannot consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the
evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007). Appellant may submit the additional evidence to the Office, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and manner alleged. He must
also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

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medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, 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.6
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.7
ANALYSIS
The medical evidence submitted by appellant is insufficient to establish that he sustained
an injury in the performance of duty. Therefore, he has failed to meet his burden of proof.
Appellant submitted absolutely no evidence, medical or factual, in support of his claim.
He expressed his belief that his alleged glaucoma condition resulted from exposure to
employment hazards, including chemical spills, asbestos fumes, fuel and gasses. However, the
Board has held that the mere fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two.8 Neither the fact
that the condition became apparent during a period of employment, nor the belief that the
condition was caused or aggravated by employment factors or incidents, is sufficient to establish
causal relationship.9 Causal relationship must be substantiated by reasoned medical opinion
evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief that his
condition was caused by the alleged work-related exposure is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to provide any
medical reports. As there is no probative medical evidence addressing how his claimed
condition was caused or aggravated by his employment, appellant has not met his burden of
proof to establish that he sustained an occupational disease in the performance of duty causally
related to factors of employment.
On appeal, appellant has submitted medical evidence, which he contends establishes that
he developed glaucoma as a result of chemical exposures during the course of his federal
employment. The Board’s review of a case, however, is limited to the evidence in the case
6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

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record which was before the Office at the time of its final decision.10 Therefore, the Board
cannot consider such evidence for the first time on appeal. Appellant may submit the additional
evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 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

10

20 C.F.R. § 10.501.2(c) (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE STEAM PLANT, Chattanooga, TN,
Employer
__________________________________________

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Appearances:
Sandra Hornsby, for the appellant
Office of Solicitor, for the Director

Docket No. 07-686
Issued: July 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 16, 2007 appellant, through his representative, filed a timely appeal from a
September 20, 2006 merit decision of the Office of Workers’ Compensation Programs finding
that he forfeited entitlement to compensation and a November 2, 2006 decision finding an
overpayment of compensation for which he was at fault. 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 forfeited entitlement to compensation for the period
February 28, 2001 to May 19, 2003 and September 2, 2003 to June 13, 2005 because he
knowingly failed to report earnings from employment; (2) whether the Office properly issued the
November 2, 2006 overpayment decision.

FACTUAL HISTORY
On June 14, 1983 appellant, then a 34-year-old electrician, filed a claim for a traumatic
injury occurring on June 6, 1983 when he twisted his back stepping on a rubber belt. He stopped
work on June 6, 1983 and returned to work with restrictions on June 15, 1983. Appellant
resigned from the employing establishment for personal reasons on June 20, 1983. The Office
accepted his claim for a back condition and paid him compensation for total disability beginning
June 1983.
The Office required appellant to complete periodic EN1032 form questionnaires
regarding whether he had any earnings from employment or self-employment for the previous 15
months. The EN1032 forms advised appellant that he must report all employment for which he
received a salary, wages, income, sales commissions, piecework or any payment of any kind,
that he must report self-employment and that he must report any such enterprise in which he
worked. The forms requested that he report employment and earnings for the 15 months prior to
the completion of any given form. The Office advised appellant on the EN1032 forms that he
was obligated to “immediately” report any employment to the Office and that fraudulently
concealing or failing to report income could subject him to criminal prosecution. Appellant
completed and signed EN1032 forms on May 28, 2002, May 19, 2003, December 2, 2004 and
June 13, 2005. On each form, he indicated that he was not engaged in any employment or selfemployment. The Office paid appellant compensation for total disability for the periods covered
by the EN1032 forms.
Records from the Social Security Administration (SSA) reveal that appellant received
earnings from employment in 2002 through 2004. He earned $7,934.00 in 2002, $8,411.25 in
2003 and $2,182.50 in 2004 working for Jack Hornsby Electric, Incorporated (Inc.).
In a report dated April 10, 2006, an investigator with the Office of the Inspector General
(OIG) for the employing establishment notified the Office that appellant worked as day laborer
for Jack Hornsby Electric, Inc. from 2002 to 2004. The business was owned by appellant’s
brother, Jack Hornsby, and sister-in-law, Sandra Hornsby. The investigator noted that appellant
experienced two cerebral vascular accidents in 2005 and now had difficulty speaking and
walking. Ms. Hornsby, his sister-in-law, assisted him with personal matters.
The investigator submitted a memorandum of an interview with Ms. Hornsby conducted
on January 12, 2006. Ms. Hornsby confirmed that appellant worked as a day laborer for the Jack
Hornsby Electric, Inc. She related that in 2005 he had a major stroke and that she had to assist
him with financial management and correspondence. In another interview on January 12, 2006,
appellant informed the investigator that he helped his brother with his electrical business but
maintained that he received only reimbursement for expenses and no salary.1

1

The investigator submitted copies of police incident reports showing that appellant indicated on December 18,
2003 that he worked for Hornsby Electric, Inc. and on April 10, 2001 reported that he was a self-employed
electrician. On March 27, 2000 he listed employment with Hornsby Electric, Inc.

2

By letter dated June 12, 2006, Ms. Hornsby, in her capacity as Vice President of Jack
Hornsby Electric, Inc. related that appellant earned $23,155.25 in 2001, $7,934.00 in 2002,
$8,411.25 in 2003 and $2,182.50 in 2004.
By decision dated September 20, 2006, the Office determined that appellant forfeited
entitlement to compensation for the periods February 28, 2001 to May 19, 2003 and
September 2, 2003 to June 13, 2005. The Office found that he knowingly omitted his earnings
and employment on EN1032 forms covering these periods.
On September 2, 2006 the Office notified appellant of its preliminary determination that
he received an overpayment of compensation in the amount of $128,206.95 because he forfeited
compensation for the periods February 28, 2001 through May 19, 2003 and September 2, 2003
through June 13, 2005. The Office further made a preliminary determination that he was at fault
in the creation of the overpayment. In addition, the Office advised appellant that he could
request a telephone conference, a final decision based on the written evidence only, or a hearing
within 30 days of the date of the letter if he disagreed that the overpayment occurred, if he
disagreed with the amount of overpayment, if he believed that the overpayment occurred through
no fault of his own and if he believed that recovery of the overpayment should be waived. The
Office requested that appellant complete an attached overpayment recovery questionnaire and
submit supporting documentation.
Appellant signed an overpayment recovery questionnaire on October 10, 2006. His
sister-in-law completed the questionnaire and listed his financial expenses. Ms. Hornsby
indicated that he had no income. In an accompanying form, appellant requested a telephone
conference on the overpayment.
By decision dated November 2, 2006, the Office finalized its finding that he received a
$128,206.95 overpayment based on his forfeiture of compensation from February 28, 2001 to
May 19, 2003 and September 2, 2003 to June 13, 2005. The Office additionally found that he
was at fault in the creation of the overpayment and thus not eligible for waiver. The Office
determined that it would withhold half of the total amount of his continuing compensation
payment, $1,486.67, to recover the overpayment. The Office indicated that the overpayment
recovery questionnaire was incomplete as it did not list his income and was completed by an
unauthorized person.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who “fails to make an affidavit or report when required or knowingly omits or understates any
part of his earnings, forfeits his right to compensation with respect to any period for which the
affidavit or report was required.2
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. Appellant can be subjected to the forfeiture provisions of 5 U.S.C.

2

5 U.S.C. § 8106(b).

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§ 8106(b) only if he “knowingly” failed to report employment or earnings.3 The term
“knowingly” as defined in the Office’s implementing regulation, means “with knowledge,
consciously, willfully or intentionally.”4
ANALYSIS -- ISSUE 1
The Office found that appellant forfeited his entitlement to compensation for the periods
February 28, 2001 to May 19, 2003 and September 2, 2003 to June 13, 2005. For the period
February 28, 2001 to May 19, 2003, appellant signed a Form EN1032 on May 28, 2002 covering
the period February 28, 2001 through May 28, 2002 and a Form EN1032 on May 19, 2003
covering the period February 19, 2002 through May 19, 2003. On the EN1032 forms, appellant
indicated that he was not employed or self-employed. The SSA records, however, reveal that he
earned $7,934 in 2002 and $8,411.25 in 2003 working for Jack Hornsby Electric, Inc.
Ms. Hornsby, the Vice President of the company, confirmed that appellant worked as a day
laborer from 2002 through 2004. Appellant asserted that he did not earn income working for the
company but instead received reimbursement for expenses. His contention, however, is not
credible given the SSA records and the evidence from Ms. Hornsby. The Board thus finds that
appellant had undisclosed earnings on EN1032 forms covering the period February 28, 2001 to
May 19, 2003.
Appellant also signed an EN1032 form on December 2, 2004 covering the period
September 2 to December 2, 2004 and an EN1032 form on June 13, 2005 covering the period
March 13, 2004 through June 13, 2005. He indicated on the forms that he had no employment or
self-employment. SSA records, however, show that he earned $7,934.00 in 2004 working for
Jack Hornsby Electric, and Ms. Hornsby acknowledged that he was employed as a day laborer
for the company throughout 2004. Appellant, consequently, had undisclosed earnings during the
time covered by the June 13, 2005 and December 2, 2005 EN1032 forms. The Board has held
that when an EN1032 forms is improperly completed resulting in a forfeiture of compensation,
the period of the forfeiture is the entire 15-month period covered by the form in question, even if
he or she had no earnings during a portion of the period.5
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
“knowingly” failed to report earnings or employment. The Office has the burden of proof to
establish that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail
to report earnings from employment.6 In this case, appellant completed EN1032 forms which
advised him that he must report both all employment and all earnings from employment and selfemployment. The EN1032 forms clearly stated that he could be subject to criminal prosecution
for false or evasive answers or omissions. The factual circumstances of record, including
appellant’s signing of strongly worded certification clauses on the EN1032 forms, provide
3

Barbara L. Kanter, 46 ECAB 165 (1994).

4

20 C.F.R. § 10.5(n).

5

Martin James Sullivan, 50 ECAB 158 (1998).

6

20 C.F.R. § 10.5(n).

4

persuasive evidence that he “knowingly” understated his earnings and employment information.7
The Office, therefore, properly found that he forfeited his compensation for the periods
February 28, 2001 to May 19, 2003 and September 2, 2003 to June 13, 2005.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.8
Section 10.431 of implementing regulations provides that, before seeking recovery of an
overpayment or adjust benefits, the Office will advise the individual in writing that the
overpayment exists and the amount of the overpayment.9 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.10 Additionally, the Office is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.11 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.12
The recipient of the alleged overpayment may present evidence in response to the Office’s
preliminary notice either in writing or at a prerecoupment hearing.13 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of
overpayment.14 Failure to request the hearing within this 30-day time period shall constitute a
waiver of that right.15
ANALYSIS -- ISSUE 2
On September 2, 2006 the Office informed appellant of its preliminary determination that
he received an overpayment based on his forfeiture of compensation for the periods February 28,
2001 through May 19, 2003 and September 2, 2003 through June 13, 2005. The Office further
advised him of its preliminary determination that he was at fault in the creation of the
7

See generally Robert C. Gilliam, 50 ECAB 334 (1998).

8

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

9

20 C.F.R. § 10.431(a).

10

20 C.F.R. § 10.431(b).

11

20 C.F.R. § 431(c).

12

20 C.F.R. § 431(d).

13

20 C.F.R. § 432.

14

Id.

15

Id.

5

overpayment. The Office notified him that he could request a telephone conference, a final
decision based on the written evidence or a hearing within 30 days if he wished to contest the
existence or amount of the overpayment or request waiver of the overpayment.
On October 10, 2006 appellant submitted a signed overpayment recovery questionnaire.
In an accompanying form, he requested a telephone conference. The Office, however, did not
conduct a telephone conference before issuing its final overpayment decision. The Board,
therefore, finds that appellant was not provided the opportunity to provide testimonial evidence
regarding the overpayment.16 The case, consequently, will be remanded for a telephone
conference. Following this and such other development as deemed necessary, the Office shall
issue an appropriate decision.
CONCLUSION
The Board finds that appellant forfeited entitlement to compensation for the periods
February 28, 2001 through May 19, 2003 and September 2, 2003 to June 13, 2005 because he
knowingly failed to report earnings from employment. The Board further finds that the Office
improperly issued the November 2, 2006 overpayment decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2006 is set aside and the case is remanded for
further proceedings consistent with this decision by the Board. The decision dated
September 20, 2006 is affirmed.
Issued: July 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

See Sherrie L. Stanley, 53 ECAB 533 (2002).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 13-1129
Issued: January 15, 2014

Case Submitted on the Record

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

JURISDICTION
On April 9, 2013 appellant filed a timely appeal from a December 17, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on June 27, 2012 in the performance of
duty.

1

Appellant filed a timely request for oral argument. After exercising its discretion, pursuant to 20 C.F.R.
§ 501.5(a), the Board denied appellant’s request on September 3, 2013. Order Denying Request for Oral Argument,
Docket No. 13-1129 (issued September 3, 2013).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 27, 2012 appellant, then a 52-year-old general expeditor, filed a traumatic injury
claim alleging that on that date that she was “thrown forward by a defective ramp chain that
popped up automatically….” She landed with her legs, back, feet and toes bent backward.
Appellant stopped work on June 28, 2012.
In a work status report dated June 27, 2012, a physician’s assistant diagnosed pain in the
feet and low back and found that appellant could resume modified employment on
June 29, 2012.
Dr. Oscar Moore, Jr., an internist, diagnosed in disability certificates a work-related
lumbosacral injury and indicated that appellant was totally disabled from June 7 to 12, 20123 and
from June 28 to August 28, 2012.
A physician found in a duty status report of July 5, 2012 that appellant could work with
restrictions from July 6 to August 20, 2012.4
Appellant related, in a statement dated July 13, 2012, that on June 27, 2012 she was
thrown forward when a defective pull ramp chain popped up automatically. She landed on both
feet and bent her feet, toes, legs and low back backward. Appellant maintained that she injured
her back.
A magnetic resonance imaging (MRI) scan study of appellant’s left foot showed no
fracture or tendon tear, mild degenerative arthritis and small dorsal effusions. An MRI scan
study of the left ankle showed an osteochondral talar dome lesion with no evidence of a fracture
or tendon tear.
By letter dated July 17, 2012, OWCP advised appellant that it had originally paid a
limited amount of medical expenses as it appeared to be a minor injury not requiring time off
work. It was now adjudicating her claim and requested that she submit additional factual and
medical information, including a rationalized report from her attending physician explaining the
relationship between any diagnosis and the June 27, 2012 work incident.
In a duty status report dated June 27, 2012, received by OWCP on August 8, 2012, a
physician diagnosed strains of the low back and feet.5 He checked “yes” that the condition
corresponded to that provided on the form of appellant being thrown forward by a defective
ramp chain. The physician found that she should remain off work June 27 and 28, 2012.

3

In a disability certificate dated June 7, 2012, Dr. Moore indicated that appellant was disabled from June 7 to 12,
2012 as the result of an employment injury.
4

The name of the physician is not legible. The record also contains the back page of a CA-16 form from a
physician finding an unidentified employee able to work with restrictions beginning June 28, 2012.
5

The name of the physician is not legible.

2

By decision dated August 22, 2012, OWCP denied appellant’s claim after finding that the
medical evidence was insufficient to establish that she sustained an injury causally related to the
accepted work incident.
Dr. Moore provided a progress report dated August 21, 2012 which diagnosed lumbar
strain and back pain as a result of a fall and determined that appellant could return to full duty on
November 17, 2012. He referenced a different OWCP file number on the report.
On September 5, 2012 appellant requested reconsideration.6 Dr. Moore indicated in an
unsigned September 5, 2012 report, that she sustained a diagnosed condition on June 27, 2012
due to a ramp chain automatically popping up. He noted that there was a witness to the accident
and a report of accident submitted to the employing establishment.
By decision dated December 17, 2012, OWCP denied modification of its August 22,
2012 decision. It noted that the September 5, 2012 report from Dr. Moore was not signed and
contained no diagnosis.
On appeal appellant alleges that she sustained her injuries in the course of her federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while 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.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.10 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.11 An employee may establish that the employment incident
6

On September 18, 2012 appellant received treatment in the emergency room for back pain. She attributed her
back pain to work injuries in 2011 and June 2012.
7

5 U.S.C. § 8101 et seq.

8

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

10

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

11

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

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occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.12
ANALYSIS
Appellant alleged that she sustained an injury to her back and feet on June 27, 2012 when
a defective ramp chain pulled up and she was thrown forward. She has established that the
June 27, 2012 incident occurred at the time, place and in the manner alleged. The issue,
consequently, is whether the medical evidence establishes that appellant sustained an injury as a
result of this incident.
The Board finds that appellant has not established that the June 27, 2012 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.13 On June 27, 2012 a physician’s assistant
diagnosed low back and bilateral foot pain.14 A physician’s assistant, however, is not considered
a physician under FECA and thus the report is of no probative value.15
In a duty status report dated June 27, 2012, a physician diagnosed strains of the low back
and feet, checked “yes” that the condition corresponded to that provided on the form of appellant
being thrown forward by a defective ramp chain, and found that appellant should remain off
work June 27 and 28, 2012. The Board has held, however, that an opinion on causal relationship
which consists only of a physician checking “yes” to a medical form question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or fortified rationale for the conclusion reached, such report is insufficient to
establish causal relationship.16
In a progress report dated August 21, 2012, Dr. Moore diagnosed lumbar strain and back
pain due to a fall. He opined that appellant could resume her usual employment on
November 17, 2012. Dr. Moore, however, did not specifically address whether the diagnosed
condition resulted from the June 27, 2012 work incident. Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of diminished probative value on
the issue of causal relationship.17
In an unsigned report dated September 5, 2012, Dr. Moore opined that appellant
sustained a diagnosed condition on June 27, 2012 when a ramp chain automatically popped up.
12

Id.

13

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

14

Appellant also submitted evidence which predated her June 27, 2012 work injury indicating that she was
receiving treatment from Dr. Moore for a back condition.
15

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

16

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
17

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

4

He indicated that there was a witness to the accident and an accident form submitted. Dr. Moore,
however, did not specify the diagnosis or provide any rationale for his opinion. A physician
must provide a narrative description of the identified employment incident and a reasoned
opinion on whether the employment incident described caused or contributed to appellant’s
diagnosed medical condition.18
On appeal appellant maintains that she was injured in the performance of duty. An award
of compensation, however, may not be based on surmise, conjecture, speculation, or upon her
own belief that there is a causal relationship between her claimed condition and his
employment.19 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by her as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.20 She failed to submit such evidence and therefore failed to
discharge her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on June 27,
2012 in the performance of duty.

18

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

19

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

20

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
U.S.POSTAL SERVICE, JACKSONVILLE
PROCESSING & DISTRIBUTION CENTER,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 20-0724
Issued: November 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 13, 2020 appellant filed a timely appeal from an August 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.3

1

The Board notes that appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules
of Procedure. 20 C.F.R. § 501.5(b). Given the disposition of the case, appellant’s request for oral argument is denied.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 26, 2019 decision, OWCP received additional evidence. Appellant
also submitted new evidence on appeal. 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $48,251.64 because he received schedule award
compensation at an incorrect pay rate for the period November 27, 2012 to January 24, 2014;
(2) whether it properly found that appellant was at fault in creation of the overpayment, thereby
precluding waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $1,132.00 from appellant’s continuing compensation
payments every 28 days.
FACTUAL HISTORY
On November 3, 2010 appellant, then a 53-year-old electronic technician, filed an
occupational disease claim (Form CA-2) alleging that he had aggravated conditions previously
accepted under File No. xxxxxx718 due to factors of his federal employment including pulling,
pushing, and strenuous movements. OWCP accepted that appellant sustained an aggravation of
primary osteoarthritis of both knees, and cervical, thoracic, and lumbar sprains.
On October 18, 2012 appellant filed a claim for a schedule award (Form CA-7). On
November 27, 2012 OWCP obtained a second opinion report by Dr. Michael Shawn Smith, a
Board-certified physiatrist, who opined that appellant had attained maximum medical
improvement (MMI). Following additional development, it determined that appellant had
sustained 4 percent permanent impairment of the right lower extremity and 17 percent permanent
impairment of the left lower extremity. The period of the schedule award equated to 423.36 days
or 60.48 weeks of compensation.
In development of the schedule award claim, OWCP also requested information from the
employing establishment regarding appellant’s pay rate as of November 27, 2012, the date of
Dr. Smith’s second opinion report. In a March 27, 2013 telephone memorandum (Form CA-110),
it notified appellant that it had contacted the employing establishment to obtain his pay rate
information.
In a March 27, 2013 Form CA-110, OWCP noted that the employing establishment
indicated that, as of November 27, 2012, appellant’s hourly base pay rate was $61.30, with a
Sunday premium pay rate of $76.63 for eight hours. In a March 28, 2013 e-mail, the employing
establishment noted that appellant also received $2.03 an hour as night differential compensation
for all hours from 6:00 p.m. to 11:30 p.m., which was also added to the Sunday premium pay
amount.
In April 4, 2013 schedule award payment worksheets, OWCP calculated that, based on a
weekly pay rate of $2,584.46 at the 75 percent compensation rate for a claimant with a spouse,
appellant would be paid a schedule award at the rate of $1,938.35 per week.
By decision dated April 9, 2013, OWCP granted appellant a schedule award for 4 percent
permanent impairment of the right lower extremity and 17 percent permanent impairment of the
left lower extremity. The period of the award ran from November 27, 2012 to January 24, 2014.

2

OWCP issued an initial payment of $34,958.84 for the period November 27, 2012 to April 6, 2013,
and $7,472.12 for the period April 7 to May 4, 2013.
Appellant retired from federal employment, effective December 31, 2014.
In a file memorandum dated July 16, 2019,4 OWCP noted that, as of November 27, 2012,
the date appellant attained MMI, appellant’s annual salary was $64,580.00, equal to $1,241.92 a
week. Appellant also received night differential for 32.5 hours a week equaling $64.03, and 16
hours of Sunday pay equaling $119.58 a week.
In a July 18, 2019 manual adjustment form, OWCP noted that appellant had been paid
$113,011.43 for the period November 27, 2012 to January 24, 2014 whereas he was entitled to
only $64,759.79, a difference of $48,251.64.
In a July 18, 2019 schedule award payment memorandum superseding the prior
memorandum, OWCP noted that, according to July 16, 2019 information from the employing
establishment, appellant’s November 27, 2012 base pay rate was $1,241.92 a week. Appellant
also received $64.03 in night differential and $119.58 Sunday premium pay, for a total weekly
salary of $1,425.53.
On July 18, 2019 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $47,475.92 for the period November 27, 2012 to January 24, 2014
because he was overpaid for his schedule award. It explained that he received $47,475.92 in error
during the stated period because the award had been calculated at an incorrect pay rate. OWCP
found that appellant was without fault as he “could not have reasonably known that an improper
payment occurred due to an inaccurate pay rate.” It informed him that, in calculating the schedule
award decision dated April 9, 2013, it used an incorrect pay rate of $61.30 an hour, equaling
$2,452.00 a week or $127,504.00 per year. Appellant also received $55.82 a week in night
differential and $76.63 Sunday premium pay. However, the correct weekly pay rate was $1,241.92
a week or $64,580.00 a year, with $64.03 a week in night differential pay and $119.58 Sunday
pay. OWCP paid appellant $113,011.00 in schedule award compensation for the period
November 27, 2012 to January 24, 2014, whereas the correct entitlement was $64,759.00, a
difference of $48,251.64.
On July 19, 2019 OWCP noted corrections superseding its July 18, 2019 preliminary
determination, and issued a modified preliminary determination that appellant was overpaid
compensation in the amount of $48,251.64 for the period November 27, 2012 to January 24, 2014.
It clarified the preliminary determination to find him with fault in the creation of the overpayment
as he failed to provide material information and accepted a payment that he knew, or reasonably
should have known, to be incorrect. OWCP requested that appellant submit a completed
overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable payment method
and advised that he could request waiver of recovery of the overpayment. It further requested that
OWCP had prepared the July 16, 2019 memorandum pursuant to appellant’s February 26, 2019 claim for an
increased schedule award. (Form CA-7). By decision dated August 7, 2019, it granted appellant an increased schedule
award for 46 percent permanent impairment of the right lower extremity. The August 7, 2019 schedule award decision
is not considered in the present appeal.
4

3

he provide supporting financial documentation, including copies of income tax returns, bank
account statements, bills, pay slips, and any other records to support income and expenses. OWCP
further notified appellant that, within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing. Appellant
did not complete the questionnaire or provide financial information.
In an August 1, 2019 worksheet, the employing establishment noted that, as of
November 27, 2012, appellant was a Grade 11, Step P, “maintenance worker” earning $64,580.00
a year. The employing establishment indicated that appellant received $2.03 in night differential,
$62.10 Sunday premium pay, and $238.38 holiday premium pay for unspecified periods.
By decision dated August 26, 2019, OWCP determined that appellant had received an
overpayment of compensation in the amount of $48,251.64 because he received schedule award
compensation at an incorrect pay rate for the period November 27, 2012 to January 24, 2014. It
further found that he was at fault in creation of the overpayment as he knew or should have known
the payments were based on an incorrect pay rate and was therefore not eligible for waiver of
recovery of the overpayment. The hearing representative required recovery of the overpayment
by determining that the sum of $1,132.00 would be withheld from appellant’s continuing
compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. Section 20 C.F.R. § 10.404
states that compensation is provided for specified periods of time for the permanent loss or loss of
use of certain members.7
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 8129(a) provides, in pertinent part: “When an overpayment has
been made to an individual under this subchapter because of an error of fact or law, adjustment
shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments
to which an individual is entitled.”9

5

Supra note 2.

6

20 C.F.R. § 10.404.

7

Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards
and Permanent Disability Claims, Chapter 2.808.5a (March 2017); id. at Chapter 3.700, Exhibit 1 (January 2010).
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

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The pay rate for compensation purposes is defined in section 8101(4) as the monthly pay
at the time of injury, the time disability begins, or the time disability recurs, if the recurrence is
more than six months after returning to full-time work, whichever is greater.10
In computing pay rate, section 8114(e) provides for the inclusion of certain premium pay
received and, where the evidence indicates additional amounts received in Sunday premium or
night differential pay fluctuated or may have fluctuated, OWCP determines the amount of
additional pay received during the one-year period prior to injury.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of schedule award compensation due to an incorrect pay rate for the
period November 27, 2012 to January 24, 2014.
The Board finds that there is conflicting evidence contained in the case record as submitted
to the Board as to the appropriate pay rate, and the calculation of night differential, Sunday pay,
and holiday premium pay.
OWCP based its schedule award calculation on March 27 and 28, 2013 e-mails in which
the employing establishment indicated that, as of November 27, 2012, appellant earned $2,584.46
a week, with a base salary of $61.30 an hour for 32 hours a week, $76.63 an hour for eight hours
a week Sunday premium pay, and an additional $2.03 an hour night differential for unspecified
periods. Subsequently, in its July 16, 2019 memoranda, it determined that, as of November 27,
2012, appellant earned only $1,241.92 a week, with 32.5 hours of night differential, and 16 hours
Sunday premium pay. Additionally, in an August 1, 2019 worksheet, the employing establishment
indicated that, as of November 27, 2012, appellant earned $64,580.00 a year, or $1,241.92 a week,
$62.10 in Sunday premium pay, and $238.38 in holiday premium pay, a pay category not
previously addressed in the case record. The Board finds that despite this conflicting evidence in
the case record, the record was not further developed by OWCP and thus it is not presently possible
to determine appellant’s actual weekly compensation rate as the record does not contain pay stubs,
statements of earnings and leave, or similar records verifying any of the three sets of calculations.
There is no explanation as to how or why OWCP determined appellant’s actual earnings for
schedule award compensation purposes. As the Board is unable to determine the appropriate
weekly compensation rate based on the present record, it is not possible to determine that appellant
actually received an overpayment of schedule award compensation benefits.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.12 OWCP’s overpayment finding does not set forth an explanation as to why one
calculation was correct and the other two calculations were incorrect, nor did it cite to the actual
10

Id. at § 8101(4).

11

5 U.S.C. § 8114(e); G.H., Docket No. 19-0770 (issued March 5, 2020); Lottie M. Williams, 56 ECAB 302 (2005).

12
G.H., id.; E.R., Docket No. 19-1365 (issued December 23, 2019); see M.M., Docket No. 17-0560 (issued
August 23, 2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see also O.R., 59 ECAB 432 (2008).

5

wage-earning records relied upon as a basis for the proper calculation. As there are significant
discrepancies between the three sets of pay calculations of record, the Board finds that OWCP has
not met its burden of proof to establish the fact of overpayment.13
CONCLUSION
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of schedule award compensation due to an incorrect pay rate for the
period November 27, 2012 to January 24, 2014.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

In light of the Board’s disposition of the first issue, Issues 2 and Issue 3 are rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-712
Issued: October 25, 2011

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 25, 2011 appellant, through her representative, filed a timely appeal from the
October 21, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed her schedule award.1
The Board has duly considered the matter and will affirm OWCP’s October 21, 2010
decision. Appellant’s representative expresses no disagreement with the schedule award per se.
Rather, counsel argues only that OWCP delayed its adjudication of appellant’s schedule award
claim until the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2009) became applicable on May 1, 2009, which deprived her of due
process rights regarding a determination under the fifth edition. He argues that a protected
property interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant
who was in receipt of benefits (in Goldberg welfare benefits and in Mathews social security
benefits) could not have those benefits terminated without procedural due process.
1

On June 12, 1998 appellant, a 50-year-old administrative officer, filed a claim alleging that her wrist and hand
condition was causally related to typing in the course of her employment. OWCP accepted her claim for left wrist
tenosynovitis. On June 3, 2010 it issued a schedule award for a one percent impairment of her left upper extremity.

In this case, appellant simply made a claim for a schedule award. She was not in receipt
of schedule award benefits nor was OWCP attempting to terminate benefits. Appellant had no
vested right to a schedule award under the fifth edition of the A.M.A., Guides. In Harry D.
Butler,2 the Board noted that Congress delegated authority to the Director of OWCP regarding
the specific methods by which permanent impairment is to be rated. Pursuant to this authority,
the Director adopted the A.M.A., Guides as a uniform standard applicable to all claimants, and
the Board has concurred in the adoption.3 On March 15, 2009 the Director exercised authority to
advise that as of May 1, 2009 all schedule award decisions of OWCP should reflect use of the
sixth edition of the A.M.A., Guides.4 The applicable date of the sixth edition relates to when a
schedule award decision is reached, not to the date of maximum medical improvement or when
the schedule award claim was filed. Accordingly,
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

43 ECAB 859 (1992).

3

Id. at 866.

4

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2


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

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

Docket No. 09-1618
Issued: April 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from November 6, 2008 and May 13,
2009 decisions of the Office of Workers’ Compensation Programs denying his claim for wageloss compensation. 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 met his burden of proof to establish disability from
July 12 through September 4, 2008; and (2) whether he sustained a traumatic injury while in the
performance of duty on July 12, 2008.
FACTUAL HISTORY
On November 1, 2007 appellant, then a 29-year-old letter carrier, filed a traumatic injury
claim alleging that he strained his back on October 12, 2007 while lifting a mailbag. His claim
was accepted for a lumbar sprain. Appellant returned to limited duty on December 19, 2007 with
instruction to avoid carrying any weight on his shoulders. On March 11, 2008 Dr. Wright

Penniman, an attending Board-certified osteopath specializing in occupational medicine, released
him to work full duty with no restrictions.
On March 28, 2008 Dr. Penniman diagnosed thoracic and lumbar strain. He stated that
appellant’s symptoms of numbness, tingling and radicular pain had worsened following his
return to work without restrictions two weeks earlier. On April 4, 2008 Dr. Penniman provided
restrictions, which included: lifting a maximum of 10 pounds intermittently; sitting and standing
up to four hours; walking, climbing, kneeling, bending, stooping, pulling and pushing up to one
hour and driving up to four hours.
On June 3, 2008 Dr. Penniman amended his diagnoses to include lumbar disc
displacement without myolopathy. A magnetic resonance imaging (MRI) scan revealed a broadbased disc protrusion at L5-S1, which barely abutted the S1 nerve on the left, as well as a disc
bulge at L4-5 and L3-4. Dr. Penniman stated that appellant’s condition was secondary to the
October 12, 2007 injury.
On July 2, 2008 Dr. Penniman stated that appellant “reinjured his back at work on
Monday, two days ago.” Appellant reported that, while he was walking to work, the pain in his
lower back worsened and, after approximately 90 minutes, he had to stop working. On
examination, he had limited range of motion, movement of the lower back caused pain and
straight leg raising test was negative bilaterally. Dr. Penniman found that he was incapacitated
from June 30 to July 2, 2008, but that he could return to work with restrictions, including lifting
or carrying no more than 10 pounds intermittently, sitting or reaching above the shoulder no
more than four hours continuously, standing no more than four hours intermittently, walking no
more than one hour continuously, bending or stooping no more than one hour intermittently and
driving no more than two hours intermittently.
In a July 8, 2008 duty status report, Dr. Penniman opined that appellant was unable to
return to work and that he “need[ed] to be lying down continuously due to the fact that his
condition continues to deteriorate.” He listed the date of injury as October 12, 2007.
In a July 8, 2008 report entitled “Employer Discharge Summary,” Dr. Penniman stated
that, effective that date, appellant was released to work on a modified basis. Appellant
complained that his condition continued to worsen and that he was having excruciating pain
when upright, either sitting or standing. On examination, Dr. Penniman found that movement of
the low back caused pain, range of motion was limited, straight leg raising test was negative
bilaterally, there was no tenderness to palpation and strength and sensation in the lower
extremities was normal. He diagnosed thoracic and lumbar strain and lumbar disc displacement
without myelopathy and opined that these conditions were related to work activities.
Appellant submitted a July 29, 2008 report from Dr. Christian L. Bonasso, a Boardcertified neurological surgeon. The history of illness reported by Dr. Bonasso reflected that
appellant’s symptoms started while at work on October 12, 2007, that pain radiated from his
back to around his chest and that he occasionally had radicular dysesthesias down his legs.
Examination revealed 5/5 strength in both upper and lower extremities. Deep tendon reflexes
and sensation were intact. No pathological reflexes were noted. An MRI scan revealed mild
degeneration with disc bulging at L5-S1, very mild bilateral neural foraminal encroachment and

2

no signs of instability. Dr. Bonasso diagnosed lumbar sprain/strain and suggested adding
bilateral lower extremity lumbar radicu1opathy to the list of diagnosed conditions. He
recommended against surgical intervention at that time.
In an August 5, 2008 duty status report, Dr. Penniman stated that appellant “needs to be
lying down continuously as he awaits further evaluation from a pain specialist with possible
epidural steroid injections.”
Appellant filed a claim for compensation for total disability for intermittent periods
commencing July 12, 2008. On August 19, 2008 the Office informed appellant that the evidence
submitted was insufficient to establish that his disability was due to his accepted condition. It
advised him to clarify his current condition was causally related to the accepted October 12,
2007 injury and, if so, to submit a medical report explaining the relationship. The Office also
asked appellant to clarify whether he was claiming that he had sustained a new injury rather than
a recurrence of the accepted injury. Appellant filed subsequent claims for periods of total
disability through September 4, 2008.
On September 4, 2008 Dr. Penniman responded to the questions posed in the Office’s
August 19, 2008 letter. He advised that appellant did not sustain a new back injury, but rather,
“he reaggravated the original injury.” Dr. Penniman stated, “The same injury and pain that had
improved to some degree became worse on July 2, 2008.” He noted that appellant’s current
condition was due to “herniated lumbar disc displacement without myelopathy.” On
September 4, 2008 Dr. Penniman released appellant to work on a modified basis.
By decision dated November 6, 2008, the Office denied appellant’s claims for wage-loss
compensation from July 12 through September 4, 2008 on the grounds that the medical evidence
failed to establish that he was disabled due to the accepted October 12, 2007 injury.
On November 14, 2008 appellant, through counsel, requested a telephonic hearing. In an
August 5, 2008 report, Dr. Penniman stated that appellant “went to lift his mailbag up on his
shoulder, [and] his whole back area gave out on him.” He noted that appellant’s pain, which
began nine months earlier, seemed to be constant but was exacerbated by walking. On
examination, range of motion was limited. Straight leg raising test was negative bilaterally.
There was no tenderness to palpation of the lumbar spine. Strength and sensation in the lower
extremities was normal. Dr. Penniman reviewed the results of a May 8, 2008 MRI scan of the
lumbar spine, which revealed broad-based disc protrusion at L5-S1, which barely abutted the S1
nerve root on the left, and nearly abutted the right S1 nerve root, and disc bulge at L4-5 and L3-4
without herniation or stenosis. He diagnosed thoracic strain, lumbar strain and lumbar disc
disorder with myelopathy, and indicated that appellant’s work status was “restricted duty.”
Dr. Penniman stated, “The cause of this problem is related to work activities.”1
On December 3, 2008 appellant submitted a claim for a traumatic injury (Form CA-1)
alleging that he sustained a back injury on July 12, 2008, while sorting mail. At the time of the

1

The Board notes that the record contains copies of medical reports from Dr. Penniman through March 9, 2009,
which did not address appellant’s claimed disability during the period in question.

3

injury, he was standing on a thin mat. When appellant turned around and picked up some flats
from a tub, he felt pain in his low back and his legs went numb.
At the March 2, 2009 hearing, appellant testified that, on July 12, 2008, while casing
mail, he turned to pick up some magazines and felt numbness, tightness and burning up his legs
“to where I couldn’t stand up.” He stated that he ended up collapsing onto his case and someone
had to wheel him out of the building. Appellant further testified that he collapsed for the first
time on July 2, 2008, when he turned to the side to pick up some magazines. He noted that his
doctor removed him from work following the July 12, 2008 incident.
By decision dated May 13, 2009, the Office hearing representative affirmed the
November 6, 2008 decision, finding that appellant had not submitted sufficient medical evidence
to establish that his disability from July 12 through September 4, 2008 was due to the accepted
October 12, 2007 employment injury. The hearing representative also found that there was
insufficient evidence to support that he sustained a traumatic injury on July 12, 2008.
LEGAL PRECEDENT -- ISSUE 1
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that he is disabled for work as a
result of his employment injury.2 The Board will not require the Office to pay compensation in
the absence of medical evidence directly addressing the particular period of disability for which
compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.3
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving he was disabled on particular
dates requires that he furnish medical evidence from a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disabling condition is causally
related to the employment injury and supports that conclusion with medical reasoning.4 Where
no such rationale is present, the medical evidence is of diminished probative value.5
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.6 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which she claims compensation is causally
2

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

3

Fereidoon Kharabi, supra note 2.

4

Ronald A. Eldridge, 53 ECAB 218 (2001).

5

Mary A. Ceglia, 55 ECAB 626 (2004).

6

20 C.F.R. § 10.5(x).

4

related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.7 Where no such rationale is present,
medical evidence is of diminished probative value.8 To establish that a claimed recurrence of the
condition was caused by the accepted injury, medical evidence of bridging symptoms between
the present condition and the accepted injury must support the physician’s conclusion of a causal
relationship.9
ANALYSIS -- ISSUE 1
Appellant filed claims for compensation alleging that he was disabled from July 12
through September 4, 2008 due to the accepted October 12, 2007 injury. The Board finds,
however, that he failed to submit any probative medical evidence demonstrating total disability
for this period of time due to his accepted condition.
On August 5, 2008 Dr. Penniman stated that appellant “needs to be lying down
continuously as he awaits further evaluation from a pain specialist with possible epidural steroid
injections.” He noted that appellant’s pain, which began nine months earlier, seemed to be
constant but was exacerbated by walking. Dr. Penniman provided examination findings and
reviewed the results of a May 8, 2008 MRI scan of the lumbar spine, which revealed broad-based
disc protrusion at L5-S1, barely abutting the S1 nerve root on the left and nearly abutting the
right S1 nerve root. It also showed a disc bulge at L4-5 and L3-4 without herniation or stenosis.
Dr. Penniman diagnosed thoracic strain, lumbar strain and lumbar disc disorder with myelopathy
and advised that appellant’s work status was “restricted duty.” He stated, “The cause of this
problem is related to work activities.” Dr. Penniman’s report lacks probative value on several
counts.
Dr. Penniman did not address the period of appellant’s alleged disability. As noted, the
Board will not require the Office to pay compensation in the absence of medical evidence
directly addressing the particular period of disability for which compensation is sought.10
Dr. Penniman also failed to explain how appellant’s current condition was causally related to the
accepted injury, rather than to an intervening event.11 A statement that appellant’s “problem” is
related to work activities, is insufficient to establish a causal relationship between the diagnosed
conditions and the October 12, 2007 injury. Further, as the claim was accepted only for lumbar
and thoracic strains, it was incumbent upon Dr. Penniman to provide medical evidence of
bridging symptoms between the present condition, which included lumbar disc disorder with
7

Mary A. Ceglia, supra note 5.

8

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

9

C.W., 60 ECAB ___ (Docket No. 07-1816, issued January 16, 2009).

10

Fereidoon Kharabi, supra note 2.

11

The Board notes that on July 2, 2008 Dr. Penniman stated that appellant reinjured his back at work two days
previously while walking to work and opined that he was incapacitated from June 30 to July 2, 2008,

5

myelopathy, and the accepted injury.12 He failed to do so. For all of these reasons, the August 5,
2008 report is of limited probative value.
On September 4, 2008 Dr. Penniman informed the Office that appellant did not sustain a
new back injury, but rather, “he reaggravated the original injury.” He stated, “The same injury
and pain that had improved to some degree became worse on July 2, 2008.” Dr. Penniman
further stated that appellant’s current condition was due to “herniated lumbar disc displacement
without myelopathy.” He did not identify a period of disability, as required in a compensation
claim. Moreover, Dr. Penniman did not explain how appellant’s current diagnosed condition
was causally related to the accepted injury. His blanket statement that appellant reaggravated the
original injury is not only insufficient to serve as a bridging symptom, but rather suggests that
the condition was caused by a separate incident.
On July 29, 2008 Dr. Bonasso noted that appellant’s symptoms started while at work on
October 12, 2007, that his pain radiated from his back to around his chest and that he
occasionally had radicular dysesthesias down his legs. He provided examination findings and
reviewed MRI scan results, which showed mild degeneration with disc bulging at L5-S1 and
very mild bilateral neural foraminal encroachment. Dr. Bonasso diagnosed lumbar sprain/strain,
suggested adding bilateral lower extremity lumbar radicu1opathy to the list of diagnosed
conditions and recommended against surgical intervention at that time. As his report does not
address whether appellant was disabled due to the accepted injury, it is of diminished probative
value and is insufficient to establish appellant’s claim. Further, Dr. Bonasso did not express an
opinion as to the cause of appellant’s current condition. Medical evidence which does not offer
an opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.13 The remaining medical evidence, including reports from
Dr. Penniman and test results, which did not explain how appellant’s condition was causally
related to the accepted condition, is of limited probative value and insufficient to establish his
claim.
The evidence of record also fails to establish that appellant sustained a recurrence of
disability. A recurrence of disability means an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition resulting from a previous injury
or illness without a new or intervening injury.14 Appellant submitted no rationalized medical
evidence supporting that he experienced a spontaneous change in his medical condition due to
the accepted injury. Rather, he reported to the Office and to his physician that he experienced
intervening incidents on July 2 and 12, 2008, which triggered his alleged disabling symptoms.
The Board finds that appellant’s claim does not meet the definition of a recurrence of disability.15

12

C.W., supra note 9.

13

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

14

See supra note 6 and accompanying text.

15

See Bryant F. Blackmon, 56 ECAB 752 (2005). The Board notes that appellant did not allege a change in his
light or limited-duty requirements.

6

For the reasons stated, the Board finds that appellant failed to sustain his burden of proof
in establishing that he was totally disabled due to his accepted employment condition from
July 12 through September 4, 2008.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act16 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.17 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.”18
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.19 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” namely, he
must submit sufficient evidence to establish that he 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.20
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 his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.21

16

5 U.S.C. § 8101 et seq.

17

Id. at § 8102 (a).

18

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).
19

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

20

See Paul Foster, 56 ECAB 208 (2004). See also Betty J. Smith, 54 ECAB 174 (2002); Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
21

See Paul Foster, supra note 20.

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has failed to meet his burden of proof in establishing that
he sustained a traumatic injury on July 12, 2008. There are inconsistencies in the evidence
which cast serious doubt on the validity of his claim.
Appellant filed compensation claims alleging that he was totally disabled from July 12
through September 4, 2008 due to his October 12, 2007 employment injury. Not until
December 3, 2008, following the November 6, 2008 decision denying his compensation claims,
did he allege that he had sustained a traumatic injury on July 12, 2008 while sorting mail. On his
CA-1 claim form, appellant stated that, when he turned around and picked up some flats from a
tub, he felt pain in his lower back and his legs went numb. At the March 2, 2009 hearing, he
testified that, on July 12, 2008, while casing mail, he turned to pick up some magazines and felt
numbness and tightness in this and burning up his legs “to where he couldn’t stand up.”
Appellant stated that he ended up collapsing onto his case, and someone had to wheel him out of
the building. He did not provide any evidence to substantiate either version of his allegations.
There is no medical evidence of record that supports appellant’s claim that he sustained a
back injury on July 12, 2008. Dr Penniman opined that appellant’s back pain worsened on
June 30, 2008 while he was walking to work and stated that he was incapacitated from June 30 to
July 2, 2008. However, none of his reports reflects a statement by appellant that corroborates the
allegations contained in his traumatic injury claim.
The Board finds that appellant has failed to establish the fact of injury: he did not submit
sufficient evidence to establish that he actually experienced an employment incident at the time,
place and in the manner alleged.22 The inconsistencies in both his allegations and the medical
evidence of record, as well as the unexplained delay in reporting the alleged injury, cast serious
doubt on the validity of his claim.23 Appellant provided no evidence to corroborate any version
of the alleged facts. The Board finds that he has failed to establish his claim.
On appeal, appellant’s representative contends that the Office’s decisions were contrary
to fact and law. For reasons previously stated, the Board finds that his argument is without
merit.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss benefits from
July 12 through September 4, 2008. The Board further finds that the evidence does not establish
that he sustained a traumatic injury while in the performance of duty on July 12, 2008.

22

See Paul Foster, supra note 20; see also Betty J. Smith, supra note 20.

23

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 and November 6, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9