United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

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Appearances:
Eric B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1586
Issued: February 24, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 9, 2020 appellant, through counsel, filed a timely appeal from an August 12,
2020 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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on January 27, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 21, 2017 appellant, then a 46-year-old master transportation security officerbehavioral detection analyst/officer (TSO-BDO) filed a traumatic injury claim (Form CA-1)
alleging that on January 27, 2017 at approximately 2:40 p.m. she sustained neck, arm, and back
sprains/strains when she was a passenger on employee airport shuttle bus #108 traveling to the
employee parking lot. She explained that the bus driver slammed on the brakes to avoid hitting
another bus. Appellant also alleged that the bus driver was speeding and tailgating. On the reverse
side of the claim form, the employing establishment noted that appellant’s regular shift was from
6:00 a.m. to 2:30 p.m. It indicated that she was not injured in the performance of duty as appellant
was injured on an employee bus in transit to the employee parking lot, which was off of the
employing establishment’s premises, and she was not involved in official “off premises” duties at
the time of her injury. Appellant did not stop work.
In a development letter dated March 6, 2017, OWCP advised appellant that additional
information was needed to establish her claim. It advised of the type of factual and medical
information necessary to establish the claim and attached a questionnaire for her completion.
OWCP afforded appellant 30 days to submit the requested evidence.
In a development letter to the employing establishment dated March 6, 2017, OWCP
requested additional information regarding appellant’s claim, including information regarding:
parking and transportation at appellant’s duty station; whether appellant was injured while on the
employee bus #108; whether the bus and parking lots were owned, controlled, or managed by the
employing establishment; whether appellant was required to use/park in the “employee lot;”
whether other parking was available; whether the public was permitted to use the “employee lot;”
whether the parking area was monitored; whether parking spaces were assigned; and whether
appellant had to pay for parking and travel to and from the “employee lot.” It provided 30 days
for the employing establishment to submit the requested evidence.
On March 6, 2017 the employing establishment controverted the claim. It argued that
appellant was not in the performance of duty at the time of injury because she was “not on shift
when the injury occurred, she was not inside the airport at a work location, and she was not actually
in the performance of duty, screening passengers.”
In a narrative statement dated January 27, 2017, appellant indicated that at approximately
2:40 p.m. on that date she was waiting for the employee bus, which was delayed, to transport her
3

Docket No. 18-1299 (issued November 5, 2019).

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to the employee parking lot. Eventually, three employee buses arrived at the same time and she
boarded the first bus, #108, along with her coworkers E.P. and C.B., as well as other airport
employees. After the bus passed the upper and lower level merger and the hourly parking garage
and was half-way to the employee parking lots, the driver slammed on the brakes while driving on
the main road. Appellant asserted that the driver was speeding and tailgating another bus. She
reported that everyone on the bus was screaming and yelling at the driver asking, “Why are you
speeding?” Appellant held onto a railing so that she would not fall on the floor and moved forward
and backwards while still hanging onto the railing. E.P. was in the front of the bus holding onto
the railing and was thrown forward after the driver suddenly braked and hit the windshield and the
front inside panel of the bus. Appellant exited the bus in the employee lot 1. She got into her car
and started driving, but could not turn her neck to the left and experienced pain in her left arm and
shoulder. Appellant returned to work on January 28, 2017, the following day, and reported the
incident to her manager.
Appellant went to an urgent care facility on January 28, 2017 and continued to seek
medical treatment.
In a March 9, 2017 report, Tony Connot, a certified physician assistant, diagnosed left
shoulder pain and indicated that appellant sustained a left shoulder injury on January 27, 2017
when a bus she was riding at work stopped suddenly.
A March 14, 2017 magnetic resonance arthrogram (MRA) scan of appellant’s left shoulder
interpreted by Dr. Thomas Zban, Board-certified in radiology, demonstrated mild
acromioclavicular degenerative joint disease and minimal subacromial/subdeltoid bursitis.
In a statement dated March 14, 2017, the employing establishment indicated: (1) appellant
did suffer an injury while riding on the employee bus #108; (2) the bus and parking lot was not
owned, controlled, or managed by the Transportation Security Agency (TSA), but the City of
Charlotte; (3) the lot was available for all airport employees to use, including airline employees,
concession employees, and TSA employees, but the general public did not have access to the
parking lot; (4) appellant was not required to park in this parking lot and there was a parking lot
available directly across from the terminal, within walking distance, however, there was a fee to
park in that lot; (5) parking spaces in the airport employee lot were not assigned by the agency;
(6) the parking lot was monitored on occasion to ensure that cars in that lot had airport issued hang
tags; (7) TSA uniformed employees did not pay for parking as TSA paid the airport directly for
their parking hang tags; and (8) appellant was not entitled to reimbursement for travel to and from
the parking lot or for parking expenses, but employees did not pay for parking expenses.
A medical report and work status reports from March 23, 2017 by Dr. Scott Burbank, a
Board-certified orthopedic surgeon, indicated that appellant presented with shoulder pain
following injury to her left shoulder on January 20, 2017 while on a bus on her way to work.
Dr. Burbank diagnosed a left shoulder sprain.
By decision dated April 10, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that her injury occurred in the performance of duty.
It found that the injury occurred after her work shift, on a bus, which was not owned or operated
by the employing establishment, and that she was not performing any part of her assigned duties

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at the time of the event. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On March 9, 2018 appellant, through counsel, requested reconsideration and argued that
the injury occurred on the employing establishment’s premises because: (1) the employee parking
lot was monitored by the employing establishment; (2) appellant’s parking was full subsidized by
the TSA; (3) the parking area for employees at the airport was separate and apart from public
parking areas and could only be accessed via employee parking buses from the terminal area; and
(4) the option of enrolling with the prior TSA parking contractor had been canc elled, thus, this was
the only parking option available to TSA employees at the airport. In support of her
reconsideration request, appellant provided a memorandum dated March 1, 2016 from the
employing establishment addressing employee rights and responsibilities as related to parking at
Charlotte Douglass International (CLT) Airport. It stated that all employing establishment
employees were welcome to enroll in the employee parking assistance program (EPAP), and it
indicated that beginning April 1, 2016 screening personnel, including BDOs, were eligible for
fully-subsidized parking. The employing establishment related that once enrolled, the employees
would receive a card that it would monitor. It further noted that employees could not be enrolled
in both transit benefits [Ex: Charlotte area transit system (CATS) bus, light rail] and the parking
subsidy program (free airport parking). Nonscreening personnel were not eligible for the fullysubsidized parking benefit and the cost of employee parking at CLT Airport was $25.00 per month.
Appellant provided an affidavit dated March 8, 2018 confirming that she was employed by
the employing establishment as a BDO and had been so employed for nine years. She indicated
that she worked at the CLT Airport and stated that her work location was inside the terminal at the
security checkpoints. Appellant related that she was required to park her vehicle in an employee
parking lot and subsequently take a city-owned employee bus to and from the terminal, which was
over two miles from the parking lot. She indicated that in 2016 the employing establishment began
paying the cost for her parking and directed her as to the rules and procedures regarding her parking
location. Appellant stated that access to the parking lot was controlled by key card, and the
employing establishment monitored employee use to prevent unauthorized access during nonwork
hours. She related that the employing establishment provided the parking at no cost to employees,
and that the general public did not have access to the parking lot, as it was solely used by airport
employees. Appellant indicated that there was no alternate parking available for employees other
than this lot, and that it was on the city bus [going from the terminal to the employee parking lot]
that she sustained her injury on January 27, 2017.
Appellant further submitted a copy of an employing establishment document entitled
“Fully Subsidized Parking Implementation (EPAP Airports)” that provided details regarding fully
subsidized parking for screening personnel, including TSOs and BDOs. The program’s start date
was targeted for April 1, 2016. Fully subsidized parking was for designated lots only.
By decision dated June 6, 2018, OWCP denied modification of its April 10, 2017 decision.
On June 19, 2018 appellant, through counsel, appealed to the Board.
In an August 8, 2018 letter, the employing establishment related that, although appellant
was not required to park in the parking lot designated for airport employees, she was provided with

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hang tag to park there for free. It related that there was a parking lot available directly across from
the terminal; however, appellant would have to pay $12.00 per day, which was an unreasonable
cost.
By decision dated November 5, 2019, the Board set aside OWCP’s June 6, 2018 decision,
finding that OWCP did not sufficiently develop the evidence regarding whether appellant was on
the premises of the employing establishment at the time of her injury.4 The Board specifically
found that the employing establishment mentioned a parking lot closer to the airport facility and
the record contained references to a number of parking lots that were available for employees, but
failed to elaborate on their location, use, and employing establishment employee access at the time
of appellant’s injury. The Board additionally found that the employing establishment failed to
elaborate on the location, route, and criteria for the use of shuttle bus #108. On remand, th e Board
directed OWCP to obtain additional information from the employing establishment regarding the
aforementioned deficiencies and issue a de novo decision.
In a development letter to the employing establishment dated December 9, 2019, OWCP
requested additional information regarding appellant’s claim. It asked if on January 27, 2017 it
contracted for parking services exclusively for its employees, assigned parking spaces for its
employees, monitored the lot for unauthorized vehicles, and whether it provided parking without
cost to its employees. OWCP additionally asked if the public was allowed to use the parking lot,
whether other parking was available to its employees. It additionally asked whether the shuttle
bus #108 was considered part of the premises of the employing establishment.
In a December 16, 2019 letter, counsel noted that OWCP failed to ask the employing
establishment if the place where appellant’s injury occurred was the only route or the normal route
where employees must travel to reach the work premises. He additionally argued that once that
criteria was satisfied, it was obvious that the January 27, 2017 bus was a special hazard because
travel on the employee bus was the access route from the employee parking lot to the terminal.
In a December 16, 2019 affidavit, appellant further explained that all employees of the
airport, including employing establishment employees, airline employees, and City of Ch arlotte
employees, accessed the employee parking lot through key cards issued by their respective
employers. She stated that the City of Charlotte monitored the parking lot through the airport
police department, which was staffed by Charlotte Mecklenburg Police (CMPD) Officers.
Appellant related that the employee parking lot was 1.5 miles away from the terminal and only
accessible via the airport shuttle bus. She stated that the airport shuttle buses ran back and forth
from the employee parking lot to the terminal all day and had no other routes, and that airport
employees are the only people allowed onto the employee shuttle bus. Appellant additionally
related that there was a parking lot directly across the street from the terminal that cost $20.00 per
day.
An undated google map search showed that a parking lot titled “Parking Long Term 4” was
a 1.5 mile drive and a 0.8 mile walk to the CLT Airport terminal.

4

Supra note 3.

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In a December 13, 2019 response to OWCP’s development letter, the employing
establishment indicated that at the time of appellant’s injury it contracted with the airport to
provide free parking for its employees, however, it related that it did not assign parking spaces and
the airport also assigned the same parking lot to employees of the airport and the airlines. It stated
that the airport authority had jurisdiction over who could park in the parking lot. The employing
establishment indicated that the public was not permitted to use the employee lot, and only those
with an airport-issued badge could gain access to it. It further indicated that there were several
parking lots and parking decks on the airport property where its employees could park, however,
they could only park for free in the employee parking lot. The employing establishment related
that it would be unreasonable for employees to pay to park at the parking lot across from the
terminal. It indicated that it does not own the property where appellant worked or parked, as it
was owned and managed by the City of Charlotte. The employing establishment related that
Shuttle bus #108 was owned and operated by the City of Charlotte; however, the only way for
employees to travel from the only free employee parking lot to the terminal, was to ride the
employee shuttle bus #108.
Attached was a map of CLT Airport which displayed a parking lot closer to the terminal
titled “daily parking” and had writing superimposed on it indicating it cost $12.00 per day . A
further lot had writing superimposed on it indicating that it was the employee parking lot, and
multiple other parking sites were indicated. A superimposed star that represented the location of
the bus incident was drawn on a road from the terminal to the employee parking lot.
By decision dated April 9, 2020, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that her injury occurred in the performance
of duty, as alleged. It found that while the employing establishment contracted with the airport to
provide parking for employing establishment employees, it did not monitor, own, or control the
lot or assign parking spots in the lot, and the airport assigned the same parking lot to airport and
airline employees. OWCP also found that there were several parking lots on the airport property
and employing establishment employees could park at any of them, but could only park for free at
the employee parking lot. It additionally found that the employing establishment did not own any
property where appellant worked or parked, and that shuttle bus #108 was owned and operated by
the City of Charlotte.
In an April 16, 2020 affidavit, appellant indicated that the employing establishment did not
have a separate parking lot for its employees, as segregating employing establishment vehicles
could cause a security risk. She explained that hostility existed from other airport employees,
towards employing establishment employees, who were required to conduct random bag and body
searches.
On April 20, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A hearing was held on July 9, 2020. Counsel argued that evidence submitted was not
acknowledged in OWCP’s April 9, 2020 decision. Appellant testified that the employee parking
lot was the only place employing establishment employees could park because the public did not
have enough space to park at the airport, which was under construction . She stated that as there
was not enough parking at CLT Airport, the employing establishment wanted its employees to

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park in the employee lot and provided daily reminders to do so. Appellant related that the lack of
parking due to ongoing construction was such a big issue that the airport actually cordoned off a
part of the employee parking lot and provided it to the public. She stated that the terminal was two
to three miles away from the employee parking lot, and she indicated that she would get from one
location to the other by bus.
By decision dated August 12, 2020, an OWCP hearing representative affirmed OWCP’s
April 8, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
FECA provides for the payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty. 9 The phrase sustained
while in the performance of duty in FECA is regarded as the equivalent of the commonly found
requisite in workers’ compensation law of arising out of and in the course of employment. 10 To
arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the master’s business, at a place where he may reasonably be
expected to be in connection with the employment, and while he was reasonably fulfilling the
duties of his employment or engaged in doing something incidental thereto. 11
For an employee with fixed hours and a fixed workplace, an injury that occurs on the
employing establishment premises when the employee is going to or from work, before or after
working hours or at lunch time is compensable. 12 The premises of the employer, as the term is
5

Supra note 2.

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

5 U.S.C. § 8102(a).

10

Valerie C. Boward, 50 ECAB 126 (1998).

11

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

12

Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006).

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used in workers’ compensation law, are not necessarily coterminous with the property owned by
the employer;13 they may be broader or narrow and are dependent more on the relationship of the
property to the employment than on the status or extent of the legal title. 14 In some cases, premises
may include all the property owned by the employer; in other cases, though the employer does not
have ownership and control of the place where the injury occurred, the place is nevertheless
considered part of the premises. 15
The Board has also held that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the garage were assigned by the employing establishment to its
employees, whether the parking areas were checked to see that no authorized cars were parked in
the garage, whether parking was provided without cost to the employees, whether the public was
permitted to use the garage, and whether other parking was available to the employees. Mere use
of a parking facility alone is insufficient to bring the parking garage within the premises of the
employing establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 16
The Board recognizes exceptions to the premises rule. Underlying some of these
exceptions is the principle that course of employment should extend to any injury that occurred at
a point where the employee was within the range of dangers associated with the employment. 17
The most common ground of extension is that the off-premises point at which the injury occurred
lies on the only route, or at least on the normal route, which employees must traverse to reach the
premises and that, therefore, the special hazards of that route become th e hazards of the
employment. 18 This exception contains two components. The first is the presence of a special
hazard at the particular off-premises point. The second is the close association of the access route
with the premises, so far as going and coming are concerned. 19 The main consideration in applying

13

Jimmie Brooks, 22 ECAB 318, 321 (1971); see also D.C., Docket No. 08-1782 (issued January 16, 2009).

14

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

15

S.W., Docket No. 20-0547 (issued December 11, 2020); Denise A. Curry, 51 ECAB 158 (1999).

16
S.S., Docket No. 20-1349 (issued February 16, 2021); R.M., Docket No. 07-1066 (issued February 6, 2009);
Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 2 ECAB 500 (1991); Edythe Erdman, 36 ECAB
597 (1985); Karen A. Patton, 33 ECAB 487 (1982).
17

R.O., Docket No. 08-2088 (issued February 18, 2011).

18

See F.S., Docket No. 09-1573 (issued April 6, 2010); Shirley Borgos, 31 ECAB 222, 223 (1979).

19

M.L., Docket No. 12-0286 (issued June 4, 2012).

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this rule is whether the conditions giving rise to the injury are causally connected to the
employment.20
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that her alleged
injury occurred in the performance of duty on January 27, 2017.
In order to find that appellant has met her burden of proof to establish a traumatic injury in
the performance of duty on January 27, 2017, as alleged, the Board must find that the employee
parking lot is the premises of the employing establishment and that the off-premises point at which
appellant’s injury occurred, namely travel on employee bus #108, lies on the only route , or at least
on the normal route, which employees must traverse to reach the premises and that, therefore, the
special hazards of that route become the hazards of the employment. 21
The Board finds that the employee parking lot was a constructive premise of the employing
establishment. The employing establishment leased parking for its employees in the airport
employee lot, parking was free employing establishment employees in that lot, and the employing
establishment admitted that it was unreasonable for its employees to pay the high cost for daily
parking at other available parking lots. The employee parking lot was not open to the public, but
it was shared with other airport employees. Employing establishment employees did not have
specifically assigned parking spots, however, they were issued hang tags and security guards
monitored the lot for unauthorized vehicles. Given these factors, the Board finds that the employee
parking lot constituted employing establishment’s premises.
The premises of the employer are generally extended when an employee must travel a
public thoroughfare to traverse between two premises of the employer.22 The Board also finds that
the employee buses which ran between the free employee parking lot and the terminal, including
bus #108, were the only way employing establishment employees could travel to the terminal from
the employee parking lot. Therefore, the special hazards of that route became the hazards of the
employment premises. 23 Thus, the Board finds that appellant has proven an exception to the
premises rule and has, therefore, established that her January 27, 2017 injury occurred in the
performance of duty. 24
Consequently, the issue remains as to whether the accepted incident caused appellant’s
injury. OWCP did not adjudicate this aspect of the case, as it found that the incident did not occur
in the performance of duty. The case will, therefore, be remanded for OWCP to consider whether
20

Id.

21

Supra note 18.

22

M.P., Docket No. 16-0507 (issued August 11, 2016); see R.B., Docket No. 11-1320 (issued September 5, 2012);
Denise A. Curry, supra note 15.
23

See K.D. Docket No. 18-0617 (issued February 13, 2019); M.P., id.; D.M. Docket No. 10-1723 (issued
August 23, 2011).
24

G.E., Docket No. 14-0843 (issued September 23, 2014).

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the medical evidence establishes that appellant sustained a diagnosed condition due to the
January 27, 2017 bus injury. Following this and other such further development as is deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that her alleged
injury occurred in the performance of duty on January 27, 2017.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2020 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, SPRING VALLEY
STATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 15-439
Issued: April 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 17, 2014 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP) dated August 13, 2014. As more than 180
days elapsed since the last merit decision, June 19, 2013, to the filing of this appeal on
December 17, 2014, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the second appeal before the Board. On April 2, 2009 appellant, a 46-year-old
customer service supervisor, filed a claim for benefits, alleging that she strained her back, her left
thigh, and both knees while lifting trays and tubs of mail on March 13, 2009.
Appellant submitted medical records indicating that she had a history of low back pain in
addition to numbness and paresthesias in the distal lower extremities. She submitted form
reports dated April 7 and 9, 2009 from Dr. Main Coppel, a Board-certified anesthesiologist
specializing in pain management, who advised that she had experienced a new onset of spinal
pain and bilateral lower extremity radiculopathy and bilateral knee pain which began after her
March 13, 2009 work injury. He stated, however, that he believed that she was exaggerating her
complaints of pain during her physical examination. Dr. Coppel diagnosed cervical facet
syndrome, thoracic facet syndrome, lumbar facet syndrome, lumbar radiculopathy, and knee pain
and checked a box indicating that appellant’s condition was due to an injury arising out of her
employment.
In a decision dated May 13, 2009, OWCP denied appellant’s claim, finding that she
failed to submit medical evidence sufficient to establish that the claimed medical condition was
related to the established work-related event. By decision dated December 30, 2009, an OWCP
hearing representative affirmed the May 13, 2009 decision. It denied reconsideration in a
nonmerit decision dated September 30, 2010. In decisions dated January 5 and July 6, 2011,
OWCP denied modification of the May 13, 2009 decision. In a March 23, 2012 decision,2 the
Board affirmed the July 6, 2011 decision. The complete facts of this case are set forth in the
Board’s March 23, 2012 decision and are herein incorporated by reference.
By letter dated May 3, 2012, appellant requested reconsideration.
In a January 12, 2010 report, received by OWCP on February 11, 2013, Dr. Jimmy J.
Novero, Board-certified in neurology, stated that appellant was experiencing low back pain,
numbness in her feet, and weakness in her lower extremities. He advised that her physical
findings were consistent with a peripheral neuropathy, with sensory loss in her distal lower
extremities, decreased symmetrical reflexes, and mild-to-moderate weakness on the left lower
extremity. Dr. Novero opined that appellant had peripheral neuropathy based on her symptoms,
examination findings, and diagnostic tests, in addition to low back pain which could be due to
radiculopathy worsened by heavy lifting.
In an April 18, 2012 report, received by OWCP on February 11, 2013, Dr. Siamek
Rouzroch, Board-certified in internal medicine, stated that he had been treating appellant since
2010 and that she sustained an injury while lifting heavy tubs and trays of mail. He advised that
she injured her back, both knees, and left thigh and was diagnosed with back sprain and lumbar
radiculopathy/sciatica which aggravated an August 25, 2008 lumbar radiculopathy injury.
Dr. Rouzroch stated that appellant also sustained a bilateral knee sprain and left thigh sprain due
to the March 13, 2009 heavy lifting injury. He noted that she had undergone a magnetic
resonance imaging (MRI) scan in 2010.
2

Docket No. 11-2007 (issued March 23, 2012).

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In a May 8, 2013 report, Dr. Rouzroch reiterated his previous findings and conclusions.
He noted that appellant had injured her back, both knees, and left thigh due to heavy lifting on
March 13, 2009 and had been diagnosed with the following conditions: cervical facet syndrome,
lumbar facet syndrome, thoracic facet syndrome, lumbar radiculopathy, knee pain, and back
sprain-lumbar radiculopathy/sciatica. Dr. Rouzroch reiterated that this exacerbated a previous
lumbar radiculopathy injury which occurred on August 25, 2008. He advised again that the
March 13, 2009 heavy lifting injury aggravated the lumbar radiculopathy stemming from her
August 25, 2008 injury. He advised that she was currently medically disabled.
On June 19, 2013 OWCP denied modification of the prior decision.
By letter dated June 17, 2014, appellant requested reconsideration. She stated that her
reconsideration request was based upon a legal argument. Appellant stated that OWCP had not
considered her medical evidence collectively. She explained that she had prior injuries,
including to the lower back, but that prior claims had been denied; therefore, she had focused her
explanation of injury on her current injury and did not mention her previous injuries to her
doctors. Appellant concluded that she had sustained a new injury to her back and knees. She did
not submit any additional medical evidence.
By decision dated August 13, 2014, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by constituting relevant and
pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.4
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP.
Appellant requested reconsideration and stated that she was presenting a new legal
argument. However, appellant merely summarized her own understanding of the medical
evidence of record. The Board has previously held that an appellant’s lay opinion does not

3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

3

constitute new evidence or relevant legal argument and is not sufficient to require OWCP to
reopen the claim.5
Appellant did not submit any new evidence in support of her reconsideration request. Her
reconsideration request failed to show that OWCP erroneously applied or interpreted a point of
law nor did it advance a point of law or fact not previously considered by OWCP. OWCP did
not abuse its discretion in refusing to reopen appellant’s claim for a review on the merits in its
August 13, 2014 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

J.S., Docket No. 09-2122 (June 14, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Clayton, MO, Employer
__________________________________________

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

Docket No. 12-1102
Issued: January 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2012 appellant filed a timely appeal from the March 14, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied disability
compensation for particular dates and which denied an additional attendant allowance. 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.
ISSUES
The issues are: (1) whether OWCP properly denied compensation for 864 hours of
claimed disability for work; and (2) whether OWCP abused its discretion in denying an
additional attendant allowance.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 3, 1987 appellant, a 46-year-old supervisory internal revenue agent,
sustained a traumatic injury in the performance of duty when he slipped and fell. OWCP
ultimately accepted his claim for left shoulder pain, bilateral rotator cuff sprain, a closed fracture
of the ulnar oleocranon process, and a closed fracture of the middle or proximal phalanx of the
left fifth digit.
In 1988 appellant underwent left shoulder surgery. OWCP paid an attendant allowance
from October 1988 through February 1989.2 Appellant received a schedule award for a 43
percent impairment of his left upper extremity.3
In 1998 appellant underwent right shoulder surgery. OWCP paid an attendant allowance
from January 1998 to May 1998. Appellant received a schedule award for a 27 percent
impairment of his right upper extremity.4
Appellant claimed compensation for leave buyback from 1988 to 1998. He also claimed
an attendant allowance for his wife’s services beginning in April 2003. When OWCP explained
that an attendant allowance was not payable for his wife’s services after regulations were revised
in January 1999, but that an allowance paid prior to that time would continue to be paid until the
need for the attendant ceased, appellant claimed the attendant allowance beginning in June 1998,
attempting to extend the period of attendance previously authorized. OWCP later reviewed its
bill-payment database and found that appellant had filed for an attendant allowance from
July 1992 through May 2010 in the amount of $327,850.00.
OWCP reviewed appellant’s record and matched the dates of leave buyback claimed
against file documents and billing and compensation payments. Of the 1,853 hours claimed, it
was able to confirm 984 payable and 869 not payable. On July 28, 2011 OWCP notified
appellant that it had approved his leave buyback claim in part. It gave him 30 days to provide
information to support disability for the dates not approved.
On September 12, 2011 OWCP notified appellant that the documentation received to date
was insufficient to support his claim for an additional attendant allowance after his 1988 and
1998 surgeries. It explained that the medical evidence did not support that he was totally
incapacitated requiring attendant services. OWCP added that appellant was returned to work
after each surgery, eventually using a wheelchair, until his retirement in 1999. It also added that
a February 16, 1990 medical report, which stated that his left upper extremity impairment would
adversely affect mobility as well as self-care status, did not address the issue of disability for
work or the need for attendant services.

2

In February 1989 OWCP telephoned the surgeon’s office to find out if appellant still needed an attendant. The
surgeon replied that appellant needed an attendant through February 28, 1989 and would return to work on
March 6, 1989.
3

The period of the award was February 19, 1990 through September 15, 1992.

4

The period of the award was January 31, 1998 through September 12, 1999.

2

OWCP asked appellant to submit supportive medical evidence contemporaneous with the
periods for which he was claiming total disability for work and the need for full-time attendant
services. It also asked him to provide his current physician’s review of the case record and wellreasoned opinion, based on objective findings from the record, that he was totally disabled for
work and required the full-time services of an attendant. “This report should specifically outline
why the services were needed, and for which medical conditions the services were for at the time
and should be well reasoned.”
On August 4, 2011 appellant corrected one date of examination and explained that he
needed more than four hours for a certain medical appointment.
On October 14, 2011 Dr. Martin B. Wice, a Board-certified physiatrist, related
appellant’s history and findings on examination. He offered the following assessment:
“In summary, [appellant] has persistent late effects of his polio. He has further
compromise from his rotator cuff tears and C8 to T1 radiculopathies. [Appellant]
now has quadriparesis with no functional leg control. He is not a functional
ambulator. [Appellant] needs an electric wheelchair because of his compromised
arms and legs. He needs to drive with hand controls. [Appellant] also needs
assistance with his transfers and lower body dressing. His wife has been his
attendant on a progressive basis since 1992 and will need to continue in this role.
As noted in my February 19, 1990 report, [appellant’s] loss of upper extremity
function has adversely affected his mobility and self-care status.”5
In a March 14, 2012 decision, OWCP denied appellant’s leave buyback claim for 864
hours. It approved an additional five hours of leave buyback based on the corrected date of one
examination and on appellant’s explanation that he needed more than four hours for a certain
medical appointment. OWCP denied leave buyback for 16 hours for meetings with doctors and
counsel as part of his third-party settlement. It also denied leave buyback for periods covered by
schedule awards. OWCP explained that appellant could not receive compensation for disability
during the period of a schedule award regardless of any offset to absorb a third-party surplus.
OWCP also denied appellant’s claim for an additional attendant allowance. It found that
the file was devoid of any evidence that ongoing attendant services were necessary after recovery
from appellant’s 1988 left shoulder surgery until his right shoulder surgery in 1998. OWCP
noted that appellant recovered from his right shoulder surgery such that he reached maximum
medical improvement on July 31, 1998. It found that the file was devoid of any evidence that
ongoing attendant allowances were necessary after that date.
OWCP added that there was no evidence that these services were necessary on a full-time
basis or that appellant paid his wife $327,850.00 for such services. It advised appellant that if
attendant services were required for some period after January 1999, they could be authorized,
when appropriate, and expenses paid directly to the provider but not to his spouse.
5

In his 1990 report, Dr. Wice noted that appellant’s left shoulder pain prevented him from carrying heavy
suitcases and crutch-walking more than one and a half blocks. He found that appellant had a 3.25 percent
impairment of his left upper extremity due to pain and a 7 percent impairment due to loss of motion.

3

On appeal, appellant argues that his schedule award in 2000 did not begin on the proper
date. He disagrees with the disallowance of 16 hours of leave buyback for travel and
examination conducted in association with his third-party settlement. Appellant argues that
OWCP should have allowed him to elect between schedule award compensation and
compensation for disability. He argues that the third-party settlement effectively meant that
OWCP did not pay his schedule awards. Appellant argues that his employer approved the 1,829
hours of sick leave claimed.
Appellant adds that his arms were his means of ambulation and allowed him to be
functionally independent but were both impaired by his employment injuries. He suggested that
his use of a wheelchair coupled with the impairment of his upper extremities was well within the
criteria for granting the attendant allowance. Appellant again argues Dr. Wice’s statement that
his upper extremity impairment would adversely affect self-care status, and that his wife had
been his attendant since 1992 and would continue in that role. He notes the testimony of
Dr. Jacquelin Perry, a Board-certified orthopedic surgeon.6 Appellant adds that being able to
return to work did not preclude the need for attendant services. He suggests that he has been in
continuous need of his wife’s attendant services since 1992, and therefore the change of
regulations in January 1999 did not apply to his case.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.7 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.8
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his claim by the weight of the evidence,9 including that he sustained an injury in the
performance of duty and that any specific condition or disability for work for which he claims
compensation is causally related to that employment injury.10
6

In her 1993 deposition, Dr. Perry indicated that the appropriate guidelines for management of rotator cuff tears
in crutch-ambulatory polio patients was to operate on their rotator cuffs and leave them nonambulatory for one year
in the hope that they heal enough to take the stress of supporting body weight again. She noted that appellant’s left
shoulder surgery “didn’t totally solve the problem,” he still had pain when she first saw him in October 1992, but he
was ambulatory and he could use his left upper extremity. Dr. Perry explained that raising the arm would cause
pain, “so you keep it low.” It was her opinion that the bilateral rotator cuff tears would eventually require appellant
to give up his crutches and use a wheelchair. Dr. Perry noted that he currently used a wheelchair some, but she did
not know for what purposes. She recommended that he use a wheelchair immediately to save his shoulders:
“[Appellant] can walk a little around the house, into the bathroom or if he got in a restaurant where his wheelchair
wouldn’t fit, he could walk up to the table or something like that.” Dr. Perry stated that by using a wheelchair,
appellant’s arms could get better by not pushing and pulling all the time.
7

5 U.S.C. § 8102(a).

8

20 C.F.R. § 10.5(f).

9

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

10

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

The claimant must submit a rationalized medical opinion that supports a causal
connection between the claimed disability for work and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the employment injury, and must explain from a medical perspective how the claimed disability
for work is related to the injury.11
The Board will not require OWCP to pay compensation for disability in the absence of
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.12
Under 5 U.S.C. § 8132 a claimant is obligated to reimburse the United States out of any
third-party recovery for any disbursements made by the United States to the claimant or on the
claimant’s behalf, except for continuation of pay. Where there is a recovery surplus, all expenses
incurred by the claimant as a result of his injury must be set against that surplus, such that he
would not be entitled to any workers’ compensation benefits until the surplus was exhausted.13
ANALYSIS -- ISSUE 1
OWCP denied wage-loss compensation for 864 hours claimed from 1988 to 1998. As
OWCP explained, the medical evidence must establish that appellant was disabled from his
position as a supervisory internal revenue agent on the particular dates claimed, and must also
establish that this disability was due to the accepted employment injuries and not some other
medical condition. Having been advised of his burden of proof, the Board finds that appellant
did not submit sufficient rationalized medical opinion evidence necessary to establish the
element of causal relationship.
OWCP has well explained that travel expenses and time missed from work for meetings
with doctors and counsel as part of appellant’s third-party settlement should have been covered
by the settlement agreement. The Board can find no legal authority that would permit appellant
to receive a schedule award or compensation for wage loss until his third-party surplus was
exhausted. Indeed, section 8132 makes clear that appellant, having received money in
satisfaction of third-party liability for his injury, shall refund to the United States the amount of
compensation paid and shall credit any surplus on future payments of compensation payable to
him for the same injury. This section makes no distinction between compensation for permanent
impairment and compensation for wage loss. Appellant could receive neither until the surplus
was exhausted. The fact that the employer authorized sick leave is immaterial. A claimant may
use leave, of course, to cover his absence from work during the period of a schedule award or the
period covered by a third-party recovery surplus. He may not receive compensation for wageloss during those same periods.

11

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

12

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Larry S. Hedgepath, Docket No. 97-2064 (issued April 21, 1999).

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The Board finds that appellant has not met his burden to establish that his accepted
employment injuries caused the 864 hours of disability claimed. The Board will therefore affirm
OWCP’s March 14, 2012 decision on that issue.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.14 OWCP has broad discretionary authority in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.15 The
only limitation on OWCP’s discretionary authority is that of reasonableness.16 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.17
Section 8111 of FECA provides that the Secretary of Labor may pay an employee who
has been awarded compensation an additional sum of not more than $1,500.00 a month, as the
Secretary considers necessary, when the Secretary finds that the service of an attendant is
necessary constantly because the employee is totally blind, or has lost the use of both hands or
both feet, or is paralyzed and unable to walk, or because of other disability resulting from the
injury making him so helpless as to require constant attendance.18
OWCP will pay for the services of an attendant up to a maximum of $1,500.00 per
month, where the need for such services has been medically documented. In the exercise of the
discretion afforded by 5 U.S.C. § 8111(a), the Director has determined that, except where
payments were being made prior to January 4, 1999, direct payments to the claimant to cover
such services will no longer be made. Rather, the cost of providing attendant services will be
paid under section 8103 of FECA, and medical bills for these services will be considered under
20 C.F.R. § 10.801. This decision is based on the following factors:
“(a) The additional payments authorized under section 8111(a) should not be
necessary since [OWCP] will authorize payment for personal care services under
5 U.S.C. § 8103, whether or not such care includes medical services, so long as
the personal care services have been determined to be medically necessary and are
14

5 U.S.C. § 8103(a).

15

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
16

Daniel J. Perea, 42 ECAB 214 (1990).

17

Id.

18

5 U.S.C. § 8111(a).

6

provided by a home health aide, licensed practical nurse, or similarly trained
individual.
“(b) A home health aide, licensed practical nurse, or similarly trained individual is
better able to provide quality personal care services, including assistance in
feeding, bathing and using the toilet. In the past, provision of supplemental
compensation directly to injured employees may have encouraged family
members to take on these responsibilities even though they may not have been
trained to provide such services. By paying for the services under section 8103,
[OWCP] can better determine whether the services provided are necessary and/or
adequate to meet the needs of the injured employee. In addition, a system
requiring the personal care provider to submit a bill to [OWCP], where the
amount billed will be subject to [OWCP’s] fee schedule, will result in greater
fiscal accountability.”19
A claimant bears the burden of proof in establishing by competent medical evidence that
he or she requires attendant care within the meaning of FECA. The claimant is not required to
need around-the-clock care, but need only demonstrate a continually recurring need for
assistance in personal matters. The attendant allowance is not intended to pay for the
performance of domestic and housekeeping chores such as cooking, cleaning, doing the laundry
or providing transportation services. It is intended to pay an attendant for assisting the claimant
in personal needs such as dressing, bathing or using the toilet. An attendant allowance is not
granted simply on the request of a disabled claimant or his physician. The need for attendant
care must be established by rationalized medical opinion evidence.20
ANALYSIS -- ISSUE 2
FECA does not state that OWCP shall pay for the service of an attendant. It states that
OWCP may pay for the service of an attendant. It is for OWCP to decide. The Board will not
disturb that decision in the absence of proof that OWCP abused its discretion.
Following appellant’s left shoulder surgery in 1988, OWCP paid an attendant allowance
from October 1988 through February 1989. It does not appear from the contemporaneous
evidence that appellant needed further attendance following his recovery from that surgery.
Indeed, the surgeon indicated that appellant did not need an attendant after February 28, 1989.
And in 1993 Dr. Perry, the orthopedic surgeon, testified that appellant was ambulatory and could
use his left upper extremity, though he would keep it low to avoid pain. The Board finds no
further claim for an attendant allowance until after appellant’s right shoulder surgery in 1998.
OWCP paid an attendant allowance from January 1998 to May 1998. Again, it does not appear
that appellant sought authorization for further attendance until he requested an allowance
beginning in April 2003.
19

20 C.F.R. § 10.314; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability
Cases, Chapter 2.812.7 (March 2010) (any attendant allowance approved prior to January 1999 will continue to be
paid to the claimant until the need for the attendant ceases).
20

Thomas Lee Cox, 54 ECAB 509 (2003).

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By that time, regulations no longer permitted an allowance for services provided by
appellant’s wife. Once appellant understood how the law had changed, he claimed an allowance
for his wife’s services continuing, unbroken, from the services authorized in 1998, which, if
established, would permit him to avoid the change in the law.
But the need for those continuing services was not established. Appellant emphasized the
statement of Dr. Wice, the physiatrist, that loss of upper extremity function would adversely
affect his self-care status. Dr. Wice made that observation in 1990 as a final note to appellant’s
impairment rating. He did not elaborate on the nature and extent of self-care affected and did not
address whether appellant needed an attendant.
In 2011 Dr. Wice stated that appellant currently needed assistance with his transfers and
lower body dressing. He attributed this not only to persistent late effects of appellant’s polio and
compromise from his rotator cuff tears, but to C8 to T1 radiculopathies and quadriparesis with no
functional leg control. OWCP did not accept appellant’s claim for polio or C8-T1
radiculopathies or quadriparesis. Dr. Wice did not discuss whether it was the compromise from
rotator cuff tears or these other noninjury-related medical conditions that were the operative
factor affecting appellant’s current self-care status. He did not report that appellant’s upper
extremity impairments had worsened. Dr. Wice did not report that the 1987 work injury had
rendered appellant so helpless that he required his wife’s constant attendance to assist in personal
needs.
Dr. Wice noted that appellant’s wife had been his attendant since 1992, but again he did
not elaborate. He did not describe with any specificity what assistance the wife provided in
1992, or from 1992 to 1998, or from 1998 to 2003. Dr. Wice did not explain the progression or
how the need for assistance was the result of the accepted work injury. Dr. Perry indicated in
1993 that appellant was ambulatory and could use his left upper extremity. She advised that he
could walk a little around the house, into the bathroom or to the table in a restaurant if his
wheelchair would not fit. Dr. Wice did not review this evidence and did not explain how the
functionality that Dr. Perry described was consistent with the notion that appellant’s work injury
had rendered him so helpless in 1992 that he required his wife’s constant attendance to make
transfers and dress his lower body.
Dr. Wise’s opinion on the need for an attendant is vague. It does not appear that he did
anything more than briefly repeat what appellant had told him. Given the absence of a wellreasoned medical opinion, the Board finds that OWCP did not abuse its discretion in denying
appellant’s request for an additional attendant allowance. The Board will affirm OWCP’s
March 14, 2012 decision on that issue.
Appellant argues that his arms were his means of ambulation and allowed him to function
independently, but both were impaired by his employment injuries. The record shows this to be
the case, but the issue to be resolved is more specific than that. The issue is whether the
accepted work injuries rendered him so helpless that he could not transfer or dress his lower
body beginning in July 1992, or from 1992 to 1998, or from 1998 and continuing. The issue is
whether any need for an attendant after the 1999 change in the regulations was the direct and
natural consequence of the accepted upper extremity impairments or rather was occasioned by
the other medical conditions Dr. Wice noted in his 2011 report. Appellant offers his opinion:

8

the impairments coupled with the wheelchair should be sufficient. As the Board explained
earlier, an attendant allowance is not granted simply on the request of a disabled claimant or his
physician. The need for attendant care must be established by rationalized medical opinion
evidence and the medical opinion evidence is such that the Board can find no abuse of OWCP’s
broad discretion in the matter.
Appellant takes issue with the schedule award he received in 2000, specifically, with the
date of maximum medical improvement. That issue is not before the Board on this appeal. If
appellant disagrees with that OWCP’s January 25, 2000 decision, he may follow the appeal
rights attached thereto.
Appellant may submit new evidence 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 OWCP properly denied compensation for 864 hours of claimed
disability for work. The Board also finds that OWCP did not abuse its discretion in denying an
additional attendant allowance.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

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

Docket No. 16-0397
Issued: September 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 28, 2015 appellant filed a timely appeal from a December 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability on or after
May 11, 2015 due to a material worsening of her work-related conditions.
FACTUAL HISTORY
This case has been previously before the Board. By decision dated May 12, 2014, the
Board set aside a July 3, 2013 OWCP merit decision, which denied appellant’s claim for

1

5 U.S.C. § 8101 et seq.

reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013.2
OWCP had utilized outdated travel regulations and the case was therefore remanded for
consideration under the new regulations. In a later decision dated April 28, 2015, the Board
affirmed OWCP’s March 25, 2014 denial of appellant’s schedule award claim finding that the
medical evidence failed to demonstrate a measurable impairment of bilateral trigger finger and
bilateral osteoarthritis of the hands.3
In a subsequent decision dated June 10, 2015, the Board reversed OWCP’s November 21,
2014 decision denying appellant’s claim for wage-loss compensation for the period October 1
through 3, 2014.4 The Board found that appellant’s treating physician did not release her to
full-duty work until her postoperative examination on October 7, 2014 and as such, she had
established entitlement to disability compensation for the period October 1 to 3, 2014 as a result
of her accepted condition. The facts and circumstances surrounding the prior appeals are
incorporated herein by reference. The relevant facts relating to this appeal are as follows.
On July 11, 2011 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) and
osteoarthritis in the wrist and fingers as a result of her federal employment duties. OWCP
accepted the claim for bilateral hand osteoarthritis and bilateral trigger finger. Appellant sought
treatment with Dr. Kurt Anderson, a Board-certified hand and orthopedic surgeon. She received
wage-loss compensation for intermittent periods of disability beginning May 30, 2012.
In a September 24, 2014 report, Dr. Anderson noted that he had performed revision of
trigger finger, left hand index finger, a procedure which OWCP had authorized. He restricted
appellant from work due to trigger finger in a September 29, 2014 duty status report
(Form CA-17). In an October 7, 2014 Form CA-17, Dr. Anderson released her to full duty due
to resolved trigger finger.
OWCP approved disability compensation for the period September 20 through October 7,
2014 due to time off work for trigger finger release surgery. Appellant returned to full-duty
work without restrictions based on Dr. Anderson’s recommendation.
On May 15, 2015 appellant filed a claim for compensation (Form CA-7) for leave
without pay beginning May 11, 2015 and continuing. In support of her claim, she submitted a
May 11, 2015 Form CA-17 from Dr. Anderson. Dr. Anderson restricted appellant from working
due to carpal tunnel and overuse pain, noting overuse of hands and fingers.
By letter dated May 19, 2015, OWCP informed appellant that the medical evidence of
record was insufficient to support her claim for compensation for the period beginning May 11,
2015, onward. It noted that it appeared that she was alleging a recurrence of disability due to a

2

Docket No. 14-150 (issued May 12, 2014). On remand, by decision dated August 14, 2014, OWCP approved
reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013.
3

Docket No. 14-1949 (issued April 28, 2015).

4

Docket No. 15-0513 (issued June 10, 2015).

2

worsening of her accepted work-related condition as she was released to full duty on
October 7, 2014. Appellant was advised to submit medical evidence in support of her claim.
In a June 18, 2015 narrative statement, appellant stated that she was experiencing a
recurrence of disability due to a worsening of her accepted work-related condition, which caused
her to submit a retirement request and stop work on May 11, 2015. She reported that she had 10
hand surgeries and, after removing four bones, her hands continued to hurt and swell after a day
of carrying mail. Appellant also noted that OWCP denied Dr. Anderson’s bill for the May 11,
2015 examination. In support of her claim, she submitted May 11 and June 22, 2015 medical
reports from Dr. Anderson.
In a May 11, 2015 medical report, Dr. Anderson reported that appellant was a postal
carrier who had a very extensive history of evaluation, consultation, conservative management,
and surgical management of overuse-type symptomatology to the hands bilaterally including
CTS bilaterally, triggering, and carpometacarpal (CMC) arthroplasty of the thumb base
bilaterally. He noted that when he last examined her two months prior, she was doing
exceptionally well and he returned her to work full time without restrictions. Appellant currently
had a complete return of her symptomatology including thumb base pain and numbness and
tingling to her hands bilaterally. Dr. Anderson noted that she returned with very similar
complaints of pain and numbness to the hands bilaterally, which he believed was caused by her
employment. He provided findings on physical examination for both the right and left hand
noting no rashes or abrasions; no ecchymosis, swelling, or lymphadenopathy; no masses or
effusions; full wrist and digital range of motion; no instability or laxity; no triggering; sensation
intact to light touch in all distributions; 2+ radial pulse; and capillary refill in less than 3 seconds
in all digits. Dr. Anderson reported that examination findings were essentially normal, but noted
that appellant had subjective complaints of pain. He diagnosed sprain of unspecified site of hand
and concluded that her employment was the number one reason for her continued disability and
he recommended that she take retirement or disability from her employment in order to alleviate
her problems.
In a June 22, 2015 report, Dr. Anderson diagnosed sprain of unspecified hand and
provided physical examination findings identical to those noted in his May 11, 2015 report. He
reported that appellant was a well-established patient who was currently experiencing triggering
and recurrent pain in the hands bilaterally. Dr. Anderson advised that she was disabled from the
employing establishment after 10 surgeries and four years of care. Accompanying his report was
a June 22, 2015 Form CA-17 restricting appellant from returning to work due to overuse of
hands and fingers.
By decision dated July 20, 2015, OWCP denied appellant’s recurrence claim for
compensation finding that the medical evidence failed to establish that she was disabled
beginning May 11, 2015 due to a material change/worsening of her accepted work-related
conditions of bilateral hand osteoarthritis and bilateral trigger finger.
On August 7, 2015 appellant requested reconsideration of OWCP’s decision and
submitted a July 28, 2015 narrative report from Dr. Anderson in support of her claim.

3

In a July 28, 2015 narrative, Dr. Anderson reported that appellant was an employing
establishment employee he had been treating since September 2011 who had undergone
numerous surgical procedures to restore normal function to her hands bilaterally. He noted that
the list of surgical intervention and treatments rendered included trigger finger injections,
arthritic-type joint injections, surgery to fix trigger fingers, surgery for arthritic conditions
including fusions and reconstruction, and numerous postoperative infections. Dr. Anderson
reported that appellant attempted to return to full-time duty as a letter carrier, but was unable to
do so. Although appellant’s surgical intervention was highly successful and allowed her to
resume her normal activities, her ability to work as a letter carrier was very limited. As such,
Dr. Anderson recommended that she pursue long-term disability and/or retirement from the
employing establishment.
By decision dated August 17, 2015, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included relevant and pertinent
new evidence. It noted that the evidence submitted was cumulative and thus substantially similar
to the evidence previously considered.5
On September 8, 2015 appellant requested reconsideration of the OWCP decision.
In an August 31, 2015 medical report, Dr. Anderson reported that appellant had
numerous issues with her hands bilaterally pertaining to overuse syndrome including tendinitis
and CTS. He advised that she was disabled and unable to return to her normal Postal Service
activities, noting that when working her symptoms returned including her tendinitis.
Dr. Anderson provided findings on physical examination for both the right and left hand noting
that examination was grossly normal and postoperative incisions were well healed bilaterally.
Examination of the left and right hand also revealed identical findings of tender CMC joint;
negative CMC grind; thumb interphalangeal joint fused; sensitive A1 pulley of the index long
and small finger; no significant triggering; distal sensory and vascular examination normal; and
digital motion otherwise unaffected.
Dr. Anderson reported that an August 31, 2015 bilateral hand imaging review
examination was performed. Three views of the hand bilaterally were obtained, which revealed
evidence of CMC arthroplasty including trapezial removal with a well-supported first metacarpal
base. Dr. Anderson further noted that the interphalangeal joints of the thumbs were fused and
the remainder of the small joints of the hands had mild arthritis. He diagnosed sprain of
unspecified site of hand noting that appellant had significant disease consistent with overuse and
repetitive use of the hands. This included trigger finger, carpal tunnel, arthritis, sprain, and
tendinitis. Appellant underwent successful surgery in the past with relief of her symptoms, but
her symptoms returned after resuming her employment as a mail carrier. Dr. Anderson opined
that her employment duties continued to create the same problems for her and deemed her
disabled and unable to return to work. An August 31, 2015 Form CA-17 was also submitted
restricting appellant from returning to work.

5

OWCP explained that Dr. Anderson’s July 28, 2015 narrative did not have any objective examination findings
and failed to provide a reasoned medical opinion as to how appellant’s condition worsened such that she was no
longer able to perform the duties of her position beginning on May 11, 2015.

4

By decision dated December 17, 2015, OWCP affirmed the July 20, 2015 decision
finding that the medical evidence failed to establish that appellant was disabled on or after
May 11, 2015 as a result of her accepted work-related conditions.
LEGAL PRECEDENT
A recurrence of disability is defined as the 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 The term also means the inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn, except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties, or a reduction-inforce. The Board has held that when a claimant stops work for reasons unrelated to the accepted
work injury there is no disability within the meaning of FECA.7
A claimant who claims a recurrence of disability has the burden of proof to establish by
the weight of substantial, reliable, and probative evidence that the disability for which he or she
claims compensation is causally related to the employment injury. This burden includes the
necessity of furnishing evidence from a qualified physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
original compensable condition. Moreover, the physician’s conclusion must be supported by
sound medical reasoning.8
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues, which must be proved by a preponderance of the reliable,
probative, and substantial medical evidence.9 Findings on examination are generally needed to
support a physician’s opinion that an employee is disabled for work. When a physician’s
statements consist only of a repetition of the employee’s complaints that excessive pain caused
an inability to work, without making an objective finding of disability, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.10
The Board will not require OWCP to pay compensation for disability without 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.11

6

20 C.F.R. 10.5(x); Bryant F. Blackmon, 56 ECAB 752 (2005); Cecelia M. Corley, 56 ECAB 662 (2005).

7

Hubert Jones, Jr., 57 ECAB 467 (2006).

8

D.W., Docket No. 11-1144 (issued July 19, 2012); Louise G. Malloy, 45 ECAB 613 (1994).

9

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

10

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

11

Id.

5

OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed.12 It notes that a claimant who has returned to work following an
accepted injury or illness may need to undergo examination or treatment and such employee may
be paid compensation for wage loss while obtaining medical services and for a reasonable time
spent traveling to and from the medical provider’s location.13 As a rule, no more than four hours
of compensation or continuation of pay should be allowed for routine medical appointments.
Longer periods of time may be allowed when required by the nature of the medical procedure
and/or the need to travel a substantial distance to obtain the medical care.14
ANALYSIS
OWCP accepted that appellant developed bilateral hand osteoarthritis and trigger finger
as a result of her federal employment duties. On September 24, 2014 appellant underwent
surgery for left trigger finger and was released to full duty without restrictions on
October 7, 2014. She has the burden of proving by the weight of the substantial, reliable, and
probative evidence that she sustained a material worsening of her accepted work-related
conditions.15 The reports of appellant’s physician, Dr. Anderson, do not provide a rationalized
medical opinion finding appellant disabled for work beginning May 15, 2011 due to her accepted
injuries of osteoarthritis and bilateral trigger finger. Therefore, the medical evidence submitted
is insufficient to meet her burden of proof.16
Dr. Anderson released appellant to full-duty work on October 7, 2014 following revision
of left trigger finger surgery on September 24, 2014. In medical reports dated May 11 and
June 22, 2015, he reported that examination findings of the right and left hand were within
normal limits despite subjective complaints of pain. Dr. Anderson noted a complete return of
symptomatology with very similar complaints of pain and numbness to the hands bilaterally,
which he believed that was caused by her employment. He diagnosed sprain of unspecified site
of hand and concluded that appellant’s employment was the number one reason for her continued
disability, recommending that she take disability from her employment in order to alleviate her
problems.
The Board finds that Dr. Anderson’s reports are insufficient to establish disability
beginning on or after May 11, 2015. Dr. Anderson did not relate appellant’s continued disability
to the accepted employment injuries of osteoarthritis and bilateral trigger finger. The May 11,
2015 Form CA-17 noted CTS and overuse of hands as the cause of disability. However, CTS is
not a condition accepted in this occupational disease claim. Dr. Anderson only generally
diagnosed sprain of hand and failed to provide any diagnostic testing, which established
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
13

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

14

Id.

15

Supra note 6.

16

Alfredo Rodriguez, 47 ECAB 437 (1996).

6

work-related residuals or disability.17 Moreover, despite normal examination findings, he related
appellant’s disability to her work-related injuries based on subjective complaints of pain.
Dr. Anderson’s opinion that she was asymptomatic until she resumed work at the Postal Service
is equivocal in nature. The Board has held that an opinion that a condition is causally related
because the employee was asymptomatic before the injury is insufficient, without adequate
rationale, to establish causal relationship.18
Dr. Anderson’s subsequent July 28 and August 31, 2015 reports also fail to establish
employment-related disability on or after May 11, 2015. In his July 28, 2015 report, he
determined that appellant was disabled in her ability to work as a letter carrier despite highly
successful surgical intervention, which allowed her to resume normal activities. Dr. Anderson
failed to provide a rationalized opinion explaining why she was unable to perform her
employment duties in any capacity despite successful surgical intervention. While the
August 31, 2015 report discussed objective testing via bilateral hand imaging review, he failed to
identify any source of disability other than documenting prior surgical intervention and arthritis.
Moreover, Dr. Anderson listed numerous diagnoses including trigger finger, CTS, arthritis,
sprain, and tendinitis. His reports fail to address the additional conditions not accepted in this
claim, making it unclear if appellant is experiencing residuals of a preexisting nonoccupational
injury or that of her accepted osteoarthritis and bilateral trigger finger.19 Thus, Dr. Anderson’s
opinion on causation is deficient.
Dr. Anderson failed to provide a fully rationalized explanation as to why appellant was
disabled on or after May 11, 2015 other than generally noting pain and limited functional
ability.20 He did not specifically address her capacity for work or the reasons why she was
unable to continue her current duties. Dr. Anderson failed to have any understanding of
appellant’s work duties and did not provide support for a spontaneous material change of a workrelated injury without an intervening incident. His explanation that her employment duties
caused a return of symptoms is insufficient to establish her claim for disability. An increase in
pain alone does not constitute objective evidence of disability.21 Though Dr. Anderson generally
supported that appellant’s continued symptoms were a result of her occupational bilateral hand
injuries, his opinion on causal relationship was conclusory in nature without any additional
explanation as to how the conditions caused disability or remained symptomatic.22

17

T.G., Docket No. 13-76 (issued March 22, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

18

M.R., Docket No. 14-11 (issued August 27, 2014); T.M., Docket No. 08-975 (issued February 6, 2009);
Michael S. Mina, 57 ECAB 379 (2006).
19

A well-rationalized opinion is particularly warranted when there is a history of preexisting condition.
T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, id.
20

A.J., Docket No. 13-614 (issued July 9, 2013).

21

See supra note 12 at Recurrences, Chapter 2.1500.6.a(2) (June 2013).

22

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

7

Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled on
after May 11, 2015 due to residuals of her accepted injuries.23 She failed to establish by the
weight of the reliable, probative, and substantial evidence, a change in the nature and extent of
the injury-related condition resulting in her inability to perform her employment duties. As
appellant has not submitted any medical evidence showing that she was disabled on or after
May 11, 2015 due to her accepted employment injuries, the Board finds that she has not met her
burden of proof.24 For the reasons stated above, OWCP’s denial of the claimed compensation
for disability was proper under the law and facts of the case.25
Appellant may submit new evidence or argument with a written request for
reconsideration to the 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 failed to establish a recurrence of disability on or after
May 11, 2015 due to a material worsening of her accepted work-related conditions.

23

The Board notes that appellant could be entitled to wage-loss compensation for attending medical appointments
on or after May 11, 2015. If a claimant has returned to work following an accepted injury or the onset of an
occupational disease and must leave work and lose pay or use leave to undergo treatment, examination or testing for
the accepted condition, compensation should be paid for wage loss under section 8105 of FECA, while undergoing
the medical services and for a reasonable time spent traveling to and from the location where services were
rendered. 5 U.S.C. § 8105. For a routine medical appointment, a maximum of four hours of compensation is
usually allowed. See supra note 12. See also William A. Archer, 55 ECAB 674 (2004).
24

J.G., Docket No. 13-737 (issued October 29, 2013).

25

Beverly A. Spencer, 55 ECAB 501 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2016
Washington, DC

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

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

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

9