United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
COMMAND CONTROL & OCEAN
SURVEILLANCE CENTER, San Diego, CA,
Employer
__________________________________________

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

Docket No. 07-794
Issued: January 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2007 appellant filed a timely appeal of the November 1 and 8, 2006 merit
decisions of the Office of Workers’ Compensation Programs finding an overpayment in the
amount of $7,253.50 for which he was not at fault and deducting $150.00 from his continuing
compensation to recover the overpayment. In a December 22, 2006 nonmerit decision, the
Office denied his requests for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $7,253.50 during the period November 1, 2003 to October 31, 2004 when he received
compensation benefits that were not offset by his Social Security Administration (SSA) benefits;
(2) whether the Office properly denied waiver of the overpayment; (3) whether it properly
determined that the overpayment would be collected by deducting $150.00 from his continuing

compensation; and (4) whether the Office properly denied appellant’s requests for
reconsideration following the November 1 and 8, 2006 decisions finalizing the overpayment.
FACTUAL HISTORY
On March 29 and April 10, 1995 appellant, then a 56-year-old electronics engineer, filed
claims for depression and anxiety caused by harassment and discrimination of the employing
establishment. On March 15, 2002 the Office accepted appellant’s claim for major depressive
disorder. The Office paid appropriate compensation for temporary total disability effective
February 13, 2003, the date he elected compensation benefits under the Federal Employees’
Compensation Act in lieu of benefits from the Office of Personnel Management (OPM).
On November 2, 2004 the Office made a preliminary determination that appellant
received an overpayment in the amount of $7,253.50, during the period November 1, 2003 to
October 31, 2004 because his compensation benefits under the Act were not reduced by the
amount of his SSA benefits attributable to his employment under the Federal Employees’
Retirement System (FERS). The Office found that appellant’s compensation should have been
reduced by $593.00 effective November 1, 2003 and by $605.50 effective December 1, 2003 for
11 months through October 31, 2004.1 It determined that he was not at fault in the creation of
the overpayment. Appellant was advised that he could request a telephone conference, a final
decision based on the written evidence only or a hearing within 30 days if he disagreed that the
overpayment occurred, with the amount of the overpayment or if he believed that recovery of the
overpayment should be waived. The Office requested that he complete an accompanying
overpayment recovery questionnaire (Form OWCP-20) and submit financial documents in
support thereof within 30 days.
On April 11, 2005 appellant requested a prerecoupment hearing. At the July 31, 2006
hearing, he agreed with the amount of the overpayment but disagreed with the period of the
stated overpayment. Appellant stated that he began to receive compensation in February 2003
and that he did not receive any compensation from 1995 to 2003, to which he believed he was
entitled. He did not receive augmented compensation but supported his daughter who was a fulltime college student. Appellant’s daughter, Shiren Delalat, testified that she attended San Diego
State University and stated that she would provide verification of her school enrollment.
Following the hearing, appellant submitted an August 22, 2006 letter from San Diego
State University which noted that his daughter was either a half-time student or did not attend
school at all during the period August 30, 1999 to May 19, 2005. In a September 1, 2006 letter,
appellant stated that his daughter was not a full-time student for several semesters because her
classes were routinely canceled and closed due to budget cuts at her school. Appellant’s
daughter attended the University of Kansas, but appellant stated that he could not afford this
1

On September 1, 2004 the SSA advised the Office that appellant’s SSA benefits with FERS during the period
November 1 through 30, 2003 was $1,210.80 and without FERS it would have been $617.80. The Office
determined that this resulted in a difference of $593.00. The SSA further advised the Office that appellant’s SSA
benefits with FERS during the period December 1, 2003 to September 30, 2004 was $1,236.20 and without FERS it
would have been $630.70. The Office determined that this resulted in a difference of $605.50 for 11 months,
totaling $6,660.50. It added $593.00 and $6,660.50 to calculate an overpayment of $7,253.50.

2

school. A May 11, 2006 collection letter revealed that appellant was indebted to the Department
of Defense (DOD). In an OWCP-20 form dated August 30, 2006, appellant listed his daughter
as a dependent. He reported his monthly income and expenses. Appellant’s income included
$1,233.00 in SSA benefits and $1,844.96 in benefits under the Act which correlated to
$2,004.19, totaling $3,237.19. His expenses included: $2,050.00 for rent or mortgage,
$1,100.00 for food, $200.00 for clothing, $300.00 for utilities and $320.00 for miscellaneous
expenses, totaling $3,970.00. Appellant indicated that the DOD debt was $7,924.94. His assets
included: $19.00 cash on hand, $9.00 in a checking account and $10.00 in a savings account,
totaling $38.00. Appellant did not submit any financial records in support of the stated expenses.
By decision dated November 1, 2006, the hearing representative found that appellant
received an overpayment in the amount of $7,253.50 during the period November 1, 2003 to
October 31, 2004 because his compensation benefits were not offset by his SSA benefits
attributable to his employment under FERS. Appellant’s contention that the Office should have
considered all compensation due to him from the date of injury, March 28, 1995, before
calculating an overpayment was without merit. The hearing representative stated that appellant
had not filed a claim for compensation dating back to March 28, 1995. She determined that he
was without fault in the creation of the overpayment, but denied waiver of the overpayment. The
hearing representative stated that appellant failed to submit documentation to verify his monthly
expenses. Therefore, she utilized the Bureau of Labor Statistics (BLS) Consumer Expenditure
Survey for California to determine the ordinary and necessary living expenses for appellant’s
household of two. The hearing representative allowed $2,050.00 for mortgage or rent because
appellant lived in southern California, and deducted $758.17 from his food expense to reflect
$341.83 and $110.59 and from his clothing expense to reflect $89.41. She deducted $270.00
from appellant’s miscellaneous expenses to reflect $50.00 because he did not identify any
specific expenses or submit documentation or verification of them. The hearing representative
disallowed the expense for repayment of the DOD salary overpayment because appellant stated
that he had not begun to repay the debt as he did not have any money to do so and he failed to
explain how he was going to repay it. She found that he failed to provide documentation to
support payment of his daughter’s college tuition. The hearing representative determined that
appellant’s monthly expenses totaled $2,831.24 which left excess income in the amount of
$400.47. She directed recovery of the overpayment by deducting $150.00 per month from his
continuing compensation benefits. The hearing representative advised appellant that, if he
disagreed with the decision, the only right of appeal was to the Board pursuant to 20 C.F.R.
§ 10.440(b).
On November 8, 2006 the Office issued a decision which again denied waiver of the
$7,253.50 overpayment and directed recovery of the overpayment by deducting $150.00 per
month from appellant’s continuing compensation benefits. The Office informed him that, if he
disagreed with the decision, the only right of appeal was to the Board.
The Office received an October 6, 2006 medical report of Dr. Samuel H. Albert, a Boardcertified psychiatrist, who advised that appellant sustained emotional and physical conditions and
that he was totally disabled for work from March 28, 1995 through October 6, 2006.
By letters dated November 30 and December 1, 14 and 15, 2006, appellant requested
reconsideration of the Office’s November 1 and 8, 2006 decisions.

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In a decision dated December 22, 2006, the Office denied appellant’s requests for
reconsideration on the grounds that they neither raised substantive legal questions nor included
new and relevant evidence and thus, they were insufficient to warrant a merit review of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of the Act2 requires that:
“compensation benefits be reduced by the portion of SSA benefits based on age or
death that are attributable to [f]ederal [s]ervice. [If you receive] SSA benefits
based on the [f]ederal service of an employee, your compensation benefits are
reduced by the amount of SSA benefits attributable to [the employee’s] [f]ederal
service.”3
The Office’s procedure manual provides:
“SSA benefits are payable concurrently with [the Act] benefits, but the following
restrictions apply:
(2) In disability cases, [the Act’s] benefits will be reduced by the SSA benefits
paid on the basis of age and attributable to the employee’s federal service.”4
The offset of compensation benefits under the Act by SSA benefits attributable to
employment under FERS is calculated as follows:
“Where a claimant has received SSA benefits, [the Office] will obtain information
from SSA on the amount of the claimant’s SSA benefits beginning with the date
of eligibility to [the Act] benefits. SSA will provide the actual amount of SSA
benefits received by the claimant/beneficiaries. SSA will also provide a
hypothetical SSA benefit computed without the FERS covered earnings. [The
Office] will then deduct the hypothetical benefit from the actual benefit to
determine the amount of benefits which are “attributable to [f]ederal [s]ervice.”
That amount is deducted from the [Act] benefit to obtain the amount of
compensation payable.”5

2

5 U.S.C. § 8116(d).

3

Janet K. George (Angelos George), 54 ECAB 201 (2002).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997),
Chapter 2.1000.11(a)-(b) (February 1995).
5

FECA Bulletin 97-09 (issued February 3, 1997).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for major depressive disorder on March 15, 2002.
The record established that he received benefits from the SSA during the period November 1,
2003 to October 31, 2004 with FERS. However, on November 2, 2004 the Office found that
appellant’s compensation benefits under the Act were not offset by the amount of his SSA
benefits attributable to his employment under FERS. The SSA paid appellant compensation in
the amount of $1,210.80 with FERS when the amount would have been $617.80 without FERS,
resulting in a difference of $593.00. For the period December 1, 2003 through September 30,
2004, the SSA paid appellant compensation in the amount of $1,236.20 with FERS when it
would have been $630.70 without FERS, resulting in a difference of $605.50. The Board finds
that, during the period November 1, 2003 to October 31, 2004, appellant received an
overpayment of $7,253.50, ($593 + $605.50 x 11 months), due to his receipt of compensation
benefits without an offset for his SSA benefits attributable to his federal employment under
FERS.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.6 As noted, the statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment recovery [of an
overpayment] by the United States may not be made when [an] 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.”7
Section 10.436 of the implementing regulations8 provides that recovery of an
overpayment would defeat the purpose of the Act if such recovery would cause hardship in a
currently or formerly entitled beneficiary because: the beneficiary from whom the Office seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined by the Office from data furnished by the BLS.9 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.10

6

See Robert Atchison, 41 ECAB 83, 87 (1989).

7

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

8

20 C.F.R. § 10.436.

9

An individual’s assets must exceed a resource based on $4,800.00, for an individual or $8,000.00, for an
individual with a spouse or one dependent plus $960.00, for each additional dependent. This includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 2004).
10

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

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Section 10.437 provides that recovery of an overpayment is considered against equity and
good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.11
ANALYSIS -- ISSUE 2
In determining that appellant was not entitled to a waiver of the overpayment, the Office
reviewed his income, expenses and assets as listed in his August 30, 2006 OWCP-20 form. The
overpayment questionnaire indicates that he had a monthly income of $3,237.19. Appellant did
not submit any documents to verify his monthly expenses. Thus, the Board finds that the Office
hearing representative properly utilized BLS data in lowering his monthly expenses for food and
clothing. It was also permissible for the Office to lower appellant’s miscellaneous expenses as
such expenses are not to exceed $50.00 per month.12 The Office properly disallowed the DOD
debt and college tuition expense for appellant’s daughter as he did not specifically identify the
monthly payment for these expenses. Appellant listed no significant assets. The Board finds
that it was reasonable for the Office to allow ordinary and necessary living expenses of
$2,831.24. Appellant’s income of $3,237.19 per month exceeded his allowable monthly
expenses of $2,831.24 by $405.95 per month. He has not demonstrated that he needs
substantially all of his current monthly income to meet living expenses. Therefore, appellant
does not qualify for waiver under the defeat the purpose of the Act standard.13
Further, there is no evidence in this case, and appellant did not allege, that he
relinquished a valuable right or changed his position for the worse in reliance on the excess
compensation he received for the period November 1, 2003 to October 31, 2004. Pursuant to its
regulations, the Office, therefore, properly found that recovery of the overpayment would not be
against equity or good conscience.
As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of the Act or be against equity and good conscience, the Board finds that the
Office did not abuse its discretion in denying a waiver of recovery of the overpayment of
$7,253.50.
LEGAL PRECEDENT -- ISSUE 3
The amount of adjustment of continuing compensation to recover an overpayment lies
within the Office’s discretion. The analysis that determines the amount of adjustment is
substantially the same as that used to determine waiver.14 With regard to the amount withheld
11

20 C.F.R. § 10.437.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.6(3)(e)
(October 2004).
13

See Nina D. Newborn, 47 ECAB 132 (1995).

14

Howard R. Nahikian, 53 ECAB 406 (2002).

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from appellant’s continuing compensation payments to recover the amount of the overpayment,
section 10.441(a) of Office regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”15
ANALYSIS -- ISSUE 3
After determining that appellant was not entitled to waiver, the Office found that he could
repay the overpayment by withholding $150.00 every 28 days from his continuing compensation.
The record indicates that, after $150.00 is added to his ordinary and necessary monthly expenses,
his current monthly income still exceeds expenses by more than $50.00. The Board finds that
the Office gave due regard to appellant’s financial circumstances and did not abuse its discretion
in determining the rate of repayment in this case in finding that repayment of the overpayment
could be accomplished by withholding $150.00 every 28 days from appellant’s compensation.
LEGAL PRECEDENT -- ISSUE 4
Section 10.440(b) of the Office’s regulations provides that “[t]he only review of a final
decision concerning an overpayment is to the Employees’ Compensation Appeals Board. The
provisions of 5 U.S.C. § 8124(b) (concerning hearings) and 5 U.S.C. § 8128(a) (concerning
reconsiderations) do not apply to such a decision.”16 The Board has found that the
implementation of this regulation is a proper exercise of the Director’s discretion and that a
claimant has no further right to review by the Office once a final decision on the issue of
overpayment has been issued.17
ANALYSIS -- ISSUE 4
In the November 1 and 8, 2006 final overpayment decisions, the Office properly
informed appellant that he only had the right to appeal to the Board. However, the Office
adjudicated appellant’s November 30 and December 1, 14 and 15, 2006 requests for
reconsideration by decision dated December 22, 2006. The Office’s regulation at section
10.440(b) provides that the only review of a final decision concerning an overpayment is by the
Board.18 The regulations further provides that the reconsideration provision of section 8128(a)

15

20 C.F.R. § 10.441(a).

16

20 C.F.R. § 10.440(b); see also Jan K. Fitzgerald, 51 ECAB 659 (2000).

17

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

18

20 C.F.R. § 10.440(b).

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does not apply to an overpayment decision.19 In view of the limitations on review rights set forth
in section 10.440(b), the Board finds that the Office improperly adjudicated the reconsideration
request after issuance of the final overpayment decision. Accordingly, the Board finds that the
Office’s December 22, 2006 decision is null and void.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $7,253.50, during the period November 1, 2003 to October 31, 2004, due to receipt of
compensation benefits that were not offset by his SSA benefits attributable to his employment
under the FERS. The Board further finds that the Office properly denied waiver of the
overpayment. It also finds that the Office properly directed recovery of the overpayment by
deducting $150.00 from appellant’s continuing compensation. Lastly, the Board finds that the
Office improperly denied appellant’s requests for reconsideration following the November 1 and
8, 2006 decisions finalizing the overpayment as it had no authority to exercise jurisdiction,
thereby, rendering the December 22, 2006 decision null and void.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The decision of the Office dated December 22,
2006 is null and void.
Issued: January 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF THE AIR FORCE, AIR
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MOBILITY COMMAND, Goose Creek, SC,
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Employer
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___________________________________________ )
S.M., Appellant

Docket No. 14-778
Issued: September 16, 2014

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

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On February 13, 2014 appellant, through counsel, filed a timely appeal from a
January 17, 2014 Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision,
denying her request for further merit review of her claim. As the last merit decision was
issued on January 17, 2013 more than 180 days from the filing of this appeal, the Board
does not have jurisdiction over the merits. 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 27, 2012 appellant, then a 51-year-old family life specialist, filed a traumatic
injury claim alleging that on January 18, 2012 she fell at work when her right ankle became
caught on a concrete wall. She indicated that she sustained neck pain, upper and lower back
pain, pain in both lower hips and tenderness in the right ribs. Appellant stopped work on
January 19, 2012.
In an October 6, 2011 report, Dr. David L. Castellone, Board-certified in family medicine
and a treating physician, noted that appellant presented with back ache and back pain, which had
begun weeks ago. He advised that she complained of radiating and nonradiating, “gnawing and
burning pain,” which was severe and constant. Dr. Castellone diagnosed: depression; attention
deficit disorder; sleep apnea, obstructive; osteoarthritis, knee unspecific (generalized, localized,
bilateral); degenerative disc disease (DDD); fibromyalgia; insomnia and hypersomnia.
In a June 14, 2012 report, Dr. Castellone, noted that appellant was having an exacerbation
of her sciatica. Appellant indicated that the severity of her injury worsened after a fall five
months earlier, followed by pain and muscle spasms. In a June 28, 2012 report, Dr. Castellone,
similarly noted back pain which was aggravated by activity, depression and fibromyalgia. He
noted that appellant’s symptoms began in 2006, but worsened after a fall earlier in the year.
Appellant had missed intermittent work as a result.
In a July 11, 2012 report, Dr. Castellone repeated his previous findings and diagnoses.
By decision dated August 3, 2012, OWCP denied appellant’s claim on the grounds that
the medical evidence did not demonstrate that the claimed medical condition was related to the
established work-related events.
Thereafter, appellant submitted a May 30, 2012 report from Dr. Castellone who noted
treating her since January 20, 2012. Dr. Castellone indicated that she was walking to her car
when she caught her right shoe and fell forward onto the lot, injuring her lower back, buttock,
right shoulder, hands and elbows. He diagnosed back sprain with increased pain from severe
fibromyalgia, osteoarthritis, degenerative disc disease, anxiety and depression. Dr. Castellone
advised that these conditions worsened because of appellant’s injury on January 18, 2012. In a
July 27, 2012 report, he confirmed that he had been treating appellant for pain and depression
since the January 18, 2012 fall at work. Dr. Castellone continued to treat appellant and submit
reports.
On November 22, 2012 appellant requested reconsideration and submitted additional
evidence.
In a decision dated January 7, 2013, OWCP denied modification of the prior decision. It
found that the medical evidence did not provide sufficient rationale and findings to establish that
her conditions were caused or aggravated by an employment incident.
OWCP subsequently received additional reports from Dr. Castellone. They included
copies of previously submitted reports dated October 6, 2011, June 14, 28, July 11 and 26, 2012.

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In reports dated August 17 and October 16, 2012, Dr. Castellone noted that appellant had
suffered anxiety and depression for years. He advised that her condition was aggravated by
recent life stressors, work demands and by a recent fall.
In a February 19, 2013 report, Dr. Castellone noted that appellant had anxiety and
depression which began in 2006 but were exacerbated by her fall.
In an April 30, 2013 report, Dr. Castellone confirmed his earlier opinion that appellant
had back ache and DDD, which was exacerbated by a fall earlier in the year. Appellant missed
work intermittently and was not working because of pain and had filed for disability.
On January 2, 2014 appellant, through counsel, requested reconsideration and advised
that additional evidence from Dr. Castellone would be submitted.
In a January 17, 2014 decision, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(ii) Advances a relevant legal argument not previously considered by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
Appellant disagreed with the denial of her traumatic injury claim and requested
reconsideration through counsel on January 2, 2014. The issue on reconsideration is medical in
nature, whether the January 18, 2012 work incident caused or contributed to an injury.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

On reconsideration, appellant’s counsel did not argue a legal error by OWCP or advance
a relevant legal argument not previously considered by OWCP. Rather, he stated that he was
submitting additional medical evidence from Dr. Castellone.
The Board notes initially that some of the reports provided by appellant were not new.
The reports dated October 6, 2011, June 14 and 28, July 11 and 26, 2102 were considered by
OWCP prior to its decision of August 3, 2012. The Board has held that the submission of
evidence or argument which repeats or duplicates that already in the case record is not a basis for
reopening a case.5 The new reports dated August 17, October 16, 2012, February 19 and
April 20, 2013 repeated earlier findings and were cumulative. Dr. Castellone repeated his
previous opinion that her symptoms were caused or exacerbated by her workplace fall in his
April 20, 2013 report. Dr. Castellone did not add any further explanation or rationale to support
that the conditions were caused or aggravated by the fall on January 18, 2012.6
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
new and relevant evidence not previously considered.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

5

Edward W. Malaniak, 51 ECAB 279 (2000).

6

See id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2014 decision of the Office of
Workers’ Compensations Programs is affirmed.
Issued: September 16, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Humble, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0166
Issued: March 8, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 12, 2020 appellant filed an appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of Appellate Boards docketed
the appeal as Docket No. 21-0166.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s authority
is limited to appeals, which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the most recent OWCP decision, dated May 8, 2020, was
November 4, 2020. As appellant did not file an appeal with the Board until November 12, 2020,
more than 180 days after the May 8, 2020 decision, the Board finds that the appeal docketed as
No. 21-0166 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant
has not offered a reason to explain her failure to timely file an appeal with supporting
1

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

2

Id. at § 501.3(e).

documentation sufficient to establish compelling circumstances. Because there is no final adverse
decision issued by OWCP within 180 days of the filing of this appeal over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0166 must
be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0166 is dismissed.
Issued: March 8, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
DEPARTMENT OF LABOR, EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 12-210
Issued: June 8, 2012

Case Submitted on the Record

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

JURISDICTION
On November 3, 2011 appellant filed a timely appeal from May 25 and October 14, 2011
merit decisions of the Office of Workers’ Compensation Programs (OWCP) which denied his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left shoulder rotator cuff tear causally related
to the December 5, 2010 employment incident.
FACTUAL HISTORY
On April 5, 2011 appellant, then a 64-year-old attorney, filed a traumatic injury claim
alleging that on February 22, 2011 he sustained an injury to his left hand when he walked into a
1

5 U.S.C. § 8101 et seq.

glass wall. He explained that he needed surgery in two finger joints. Appellant did not stop
work.
On April 25, 2011 OWCP advised appellant that his claim was initially accepted as a
minor injury but it was reopened for consideration because he requested authorization for
surgery. It noted that he did not submit any evidence with his claim and requested additional
evidence to demonstrate that he sustained a left hand injury as a result of the alleged employment
incident.
In a February 22, 2011 report, Kimberly Brabentz, a physician’s assistant, related
appellant’s complaints of left hand pain that radiated to his third finger and of weakness,
swelling and bruising. Appellant reported that the initial onset of discomfort began one to two
hours ago and that nothing aggravated the pain. He also stated that about two months ago it was
difficult to use his hand because of a mass on his tendon. Ms. Brabentz reviewed appellant’s
history and conducted an examination. She noted that he was positive for left upper extremity
pain, particularly to palpation over his palm at the nodule and index finger and that he had
decreased range of motion in the index finger.
In a February 22, 2011 x-ray report, Dr. Steven Abrams, a Board-certified diagnostic
radiologist, noted left hand pain from an injury. The x-ray examination revealed no displaced
fracture, dislocation, subluxation or degenerative changes. Appellant’s joint spaces were well
preserved and his alignment was intact. Dr. Abrams concluded that his examination was normal.
In a March 31, 2011 report, Dr. Sebastian B. Ruggeri, a Board-certified orthopedic
surgeon, noted appellant’s complaints of left hand pain and related his history of having a growth
for the past six to nine months. He denied any history of injury or treatment. Upon examination
of his right and left wrists, Dr. Ruggeri observed a mass over the left hand ring finger measuring
one times two centimeters and motion to the index finger joint from -30 to 70 degrees.
Neurovascular tone was good and no dystrophic changes or paresthesia was noted at the carpal
tunnel, cubital tunnel, sublimis arcade or Guyon’s canal. Dr. Ruggeri diagnosed left ring finger
palmar mass and left index and long fingers capsulitis.
In a May 11, 2011 report, Dr. Marianne Cloeren, a Board-certified internist, noted
appellant’s complaints of a left hand injury and related that on February 22, 2011 he struck his
hand on a glass partition at work. She reported that the documentation from his February 22,
2011 doctor’s visit did not support an acute injury but described development of worse pain in
his left hand without any inciting event. Dr. Cloeren also pointed out that the x-ray examination
did not reveal an acute injury and explained that orthopedic evaluation over two months
documented that there was no injury event. She noted appellant’s diagnoses of left hand
capsulitis and mass and concluded that his left hand condition was related to a preexisting
personal condition.
In an undated statement, appellant explained that on his way to a deposition at a law firm
he walked into a glass wall between the lobby and the deposition conference room and injured
the middle and index fingers of his left hand. He thought he just bruised or sprained his hand,
but a hand surgeon recommended surgery to remove the scar tissue that had formed lesions.
Appellant further stated that he had no similar disabilities or symptoms before the injury except

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for an unrelated growth on the palm of his left hand. He also submitted two witness statements
from Sally C. Shanely, a supervisory trial attorney, and David Lee, a court reporter, indicating
that appellant accidently walked into a glass wall when attempting to enter the deposition
conference room and received medical attention.
In a decision dated May 25, 2011, OWCP accepted that the February 22, 2011
employment incident occurred as alleged, but denied appellant’s claim finding insufficient
medical evidence to establish that he sustained a left hand condition causally related to the
accepted employment incident.
On July 13, 2011 appellant submitted a request for reconsideration. He related that on
February 22, 2011 he injured his left hand when he walked into a glass wall while trying to enter
the deposition conference room. Appellant was examined at Arrowhead Family Health Center
within two hours after the incident. On March 31, 2011 he was examined by Dr. Ruggeri. He
explained that he also visited Dr. Ruggeri for an unrelated growth on his hand and noted that
Dr. Ruggeri provided a medical opinion of causal relationship between his hand injury and the
February 22, 2011 employment incident.
In a July 1, 2011 report, Dr. Ruggeri stated that he had treated appellant since March 31,
2011 for capsulitis of the left index and long finger with a contracture and mass at the left ring
finger. He reported that appellant’s capsulitis was consistent with the injury that he sustained on
February 22, 2011.
By decision dated October 14, 2011, OWCP denied modification of the May 25, 2011
decision denying appellant’s traumatic injury claim. It stated that because appellant submitted
new medical evidence he was entitled to a merit review of his claim, but determined that
Dr. Ruggeri’s July 1, 2011 report still failed to establish that his left hand condition was causally
related to the February 22, 2011 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence3
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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

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There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.10 The
opinion of the physician must be based on a complete factual and medical background of the
employee, 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 employee.11 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.12
ANALYSIS
OWCP accepted that on February 22, 2011 appellant accidently walked into a glass wall
while trying to enter a deposition conference room but found that the medical evidence failed to
demonstrate that his left hand condition was causally related to the accepted incident. The Board
finds that appellant did not meet his burden of proof to establish that he sustained a left hand
condition as a result of the February 22, 2011 employment incident.
Appellant submitted several medical reports by Dr. Ruggeri. In a March 31, 2011 report,
Dr. Ruggeri noted appellant’s complaints of left hand pain and of a growth for the past six to
nine months. Upon examination, he observed a mass over his left hand ring finger and decreased
range of motion. Dr. Ruggeri diagnosed left ring finger palmar mass and capsulitis of the left
index and long fingers. In a July 1, 2011 report, he concluded that appellant’s capsulitis was
consistent with the injury sustained on February 22, 2011. Although Dr. Ruggeri provides an
opinion regarding the cause of appellant’s left hand condition, he fails to provide any medical
6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

12

James Mack, 43 ECAB 321 (1991).

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rationale explaining how walking into a glass wall caused his left hand condition. Sufficient
medical explanation is particularly necessary in this case since the record also indicates that
appellant experienced a growth on his left hand for six to nine months prior to the February 22,
2011 incident. Moreover, in a May 11, 2011 report, Dr. Cloeren attributed appellant’s left hand
condition to a preexisting personal condition, and not an acute injury. Dr. Ruggeri did not
explain why appellant’s left hand condition was causally related to the February 22, 2011
incident, and not a preexisting growth on his left hand as Dr. Cloeren indicated. Because a
medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale, the Board
finds that Dr. Ruggeri’s reports are insufficient to establish appellant’s claim.13
The additional medical evidence is also insufficient to establish appellant’s traumatic
injury claim. In a February 22, 2011 x-ray report, Dr. Abrams noted appellant’s complaints of a
left hand injury but offered no opinion or explanation regarding the cause of his left hand pain.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.14
Likewise, the February 22, 2011 physician’s assistant report also fails to establish causal
relationship as physician’s assistants are not considered “physicians” as defined by FECA and
their opinions are of no probative value.15 Because appellant has not provided probative medical
evidence in this case, the Board finds that he did not meet his burden of proof to establish his
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left hand
condition as a result of the February 22, 2011 employment incident.

13

J.F., Docket No. 09-1061 (issued November 17, 2009); T.M., Docket No. 08-975 (issued February 6, 2009);
A.D., 58 ECAB 149 (2006).
14

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., supra note 13; A.D., supra note 13.

15

Section 8102(2) provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); see also Roy L. Humphrey, 57 ECAB 238 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the October 14 and May 25, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 8, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANGEMENT, Boise, ID, Employer
__________________________________________

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

Docket No. 08-656
Issued: September 9, 2008

Case Submitted on the Record

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

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from an October 31, 2007 merit
decision of the Office of Workers’ Compensation Programs which denied his claim for an
occupational disease and a nonmerit decision dated December 5, 2007 which denied his request
for reconsideration of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim as to both decisions.
ISSUES
The issues are: (1) whether appellant has established that he sustained a respiratory
condition as a result of dust exposure in the performance of duty; and (2) whether the Office
abused its discretion in denying merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a chief ranger, filed an occupational disease claim on September 5, 2007,
alleging that he suffered a persistent sore throat and cough following a multiday assignment in
Northwest Nevada at the Burning Man Event. The event lasted from August 27 to

September 3, 2007. He asserted that high winds created dust storms which blew fine, powdery
playa dust, exposure to which caused his symptoms.
By letter dated September 20, 2007, the Office notified appellant what information was
required to substantiate his claim. The letter requested a diagnosis and a listing of specific
employment factors alleged to have caused the condition and stated that the medical evidence
currently of record did not support a finding that appellant’s condition was causally connected to
any factor of employment. The letter also contained seven specific questions designed to elicit
further medical information from appellant. The questions included a request for a
comprehensive medical report from appellant’s physician and a statement that appellant was
responsible for providing the information necessary to support his claim. On the same date, the
Office requested that the employing establishment provide information on the nature and risks of
employment-related exposure to airborne irritants.
Appellant responded in an undated letter received by the Office on October 2, 2007. He
answered the seven questions posed by the claims examiner but provided no medical reports and
instead included a telephone number for his physician.
By decision dated October 31, 2007, the Office denied appellant’s claim finding that the
claimed events occurred but noting that the Office had received no medical diagnosis to connect
the medical condition to his employment.
Appellant requested reconsideration and, by letter dated November 14, 2007, provided a
September 7, 2007 progress note of Terry Robbins, M.D., affiliated with St. Luke’s Family
Health. In the progress note, Dr. Robbins noted a history of coughing for the 10 days prior,
reported that appellant had “inhaled a lot of dust” and that “sore throat and cough developed
shortly after.” On examination, he noted that the lungs were clear and that there was mild nasal
congestion. Dr. Robbins diagnosed a cough and noted a “possible URI vs. dust exposure.” He
noted a follow-up “prn [as needed].”
By decision dated December 5, 2007, the Office denied appellant’s request for a merit
review.
LEGAL PRECEDENT -- ISSUE 1
The Board’s jurisdiction is limited to reviewing the evidence and arguments that were
before the Office at the time of its final decision.1 The Board has no jurisdiction to review
evidence that was not before the Office at the time of its final decision.2 It is within this
framework that this appeal must be decided.3
1

Lloyd E. Griffin, Jr., 46 ECAB 979 (1995).

2

Ricky Greenwood, 57 ECAB 441 (2006).

3

The case record currently contains a medical report by Dr. Robbins dated December 18, 2007. However, this
report was not before the Office at the time of the October 31, 2007 decision denying the claim or the December 5,
2007 decision denying a merit review. For this reason, the report cannot be considered by the Board in its review of
the Office decisions on appeal.

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An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim.4 Appellant’s burden includes
the submission of a detailed description of the employment factors or conditions which he
believes caused or adversely affected the condition or conditions for which compensation is
claimed.5 An employee who claims an injury in the performance of duty must submit sufficient
evidence to establish that he or she experienced a specific event, incident or exposure occurring
at the time, place and in the manner alleged. The claimant must also establish that such event or
exposure caused an “injury” as defined by the Act and its regulations.6 Office regulations define
the term “occupational disease or illness” as a condition produced by the work environment over
a period longer than a single workday or shift.7 Office regulations define a traumatic injury as a
condition of the body caused by a specific event or incident, or series of events or incidents,
within a single workday or shift. Such condition must be caused by external force, including
stress or strain, which is identifiable as to time and place of occurrence and member of function
of the body affected.8
Neither the fact that the condition became apparent during a period of employment, nor
the belief of appellant that the condition was caused or aggravated by employment conditions, is
sufficient to establish causal relationship.9 Causal relation is a medical question which can only
be resolved by the submission of medical opinion evidence.10 A compensation award may not be
based upon speculation, surmise or conjecture; or stated differently, the award must be based
upon evidence and where an inference, deduction, or conclusion is drawn, there must be
evidence to support the inference, deduction or conclusion. The evidence required, however, is
only that necessary to convince the adjudicator that the conclusion drawn is rational, sound and
logical. It is not necessary that the evidence be so conclusive as to suggest causal connection
beyond all possible doubt in the mind of a medical scientist.11 An opinion that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after it is insufficient, without supporting rationale, to establish causal
relationship.12 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

4

Mark A. Cacchione, 46 ECAB 148 (1994).

5

Anne Livermore, 46 ECAB 425 (1995); Elizabeth Pinero, 46 ECAB 123 (1994).

6

O. Paul Gregg, 46 ECAB 624 (1995).

7

Patricia E. Cummings, 53 ECAB 623 (2002).

8

David Apgar, 57 ECAB 137 (2005).

9

Judith A. Peot, 46 ECAB 1036 (1995).

10

Ronald M. Cokes, 46 ECAB 967 (1995).

11

Ronald L. Wilson, 43 ECAB 271 (1991).

12

John F. Glynn, 53 ECAB 562 (2002).

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by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.13
ANALYSIS -- ISSUE 1
It is not disputed that appellant attended the Burning Man Event in the course of his
duties as a chief ranger and that he was exposed to dust. At the time of the denial of the claim,
November 1, 2007, appellant had not submitted any medical evidence of any description. The
Office had informed the claimant what additional evidence was necessary and requested that he
provide it in a letter dated September 20, 2007. The Office correctly accepted that the incident
occurred but also found, correctly, that claimant had not submitted medical evidence sufficient to
establish any injury, diagnosis or causal connection.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), Office
regulations provide that the application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant, pertinent new evidence not
previously considered by the Office.14 Where such evidence or contentions have not been
presented, it is a matter of discretion on the part of the Office whether to reopen a case for further
consideration.15 The Board has held that submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.16
ANALYSIS -- ISSUE 2
When the Office decided appellant’s request for merit review, the record contained only
the factual evidence establishing that he was exposed to dust while in the course of his duties and
the September 7, 2007 medical note of Dr. Robbins. That note did not contain a clear diagnosis
because it identified either an upper respiratory infection or irritation by dust exposure as a cause
of appellant’s condition. The note did not offer a rationalized opinion on whether appellant’s
condition was caused by any factor related to his employment. For these reasons, the
September 7, 2007 note was not relevant to the medical issues raised in appellant’s case.
Appellant did not meet any of the three criteria for gaining a reconsideration of the merits
of his claim. The Office properly denied the request for reconsideration.

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Id.

14

Richard Yadron, 57 ECAB 207 (2005).

15

D’Wayne Avila, 57 ECAB 642 (2006).

16

Andrew Kravic, 57 ECAB 526 (2006).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an employment-related occupational disease or that he was entitled to merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5 and October 31, 2007 are affirmed.
Issued: September 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albany, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2339
Issued: July 22, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant, through counsel, filed an appeal from a March 30,
2009 decision of the Office of Workers’ Compensation Programs denying her claim for a
consequential injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained a consequential right ankle
fracture due to her accepted left hip and pelvis strain.
On appeal, appellant contends that the medical evidence is sufficient to establish her
consequential injury claim.
FACTUAL HISTORY
On December 11, 2006 appellant, then a 54-year-old nurse, filed a traumatic injury claim
alleging that on November 28, 2006 she sprained/strained her left groin while lifting and

dumping full linen hampers. The Office accepted the claim for left hip and pelvis strain and her
claim for a recurrence of disability beginning February 6, 2007. By letter dated August 14, 2007,
appellant was placed on the periodic rolls for temporary total disability.
On March 13, 2007 Dr. Frederick J. Fletcher, a treating Board-certified orthopedic
surgeon, diagnosed a nondisplaced ankle fracture. He opined that the ankle injury arose from
appellant’s left hip injury. Dr. Fletcher stated that she “apparently tripped due to pain and
suffered a fractured right tibia and fibula fracture.” On March 20, 2007 he diagnosed a right
ankle nondisplaced trimalleolar fracture. Dr. Fletcher advised that appellant had difficulty
leaving her home and was disabled as a result of both her ankle fracture and her left hip and
pelvis injuries.
In a March 6, 2007 report, Dr. Fletcher reiterated that appellant sustained a trimalleolar
fracture. He related that she was having trouble with her left side when she injured her right leg
as a result of a fall on Sunday. Appellant was having “severe left groin trouble secondary to her
work-related injury.”
On March 19, 2007 appellant filed a claim for a recurrence of total disability beginning
March 4, 2007. While leaving her home to attend church, she fell and broke her ankle in three
places. In an April 6, 2007 letter, the Office acknowledged receipt of appellant’s claim and
informed her that it would be developed as a consequential injury claim based on her description
of how the ankle injury occurred. Appellant was advised of the factual and medical evidence
necessary to establish a consequential injury and provided 30 days to submit such evidence.
Appellant submitted an April 4, 2007 statement addressing how her ankle fracture
occurred and why she attributed it to her accepted employment injury. She was on her way to
church on March 4, 2007 when she felt her right knee and leg buckle under her while walking
down some steps. At this point, appellant fell and fractured her right ankle as a result of this
buckling. She went to the emergency room at Albany Medical Center where she was diagnosed
with a severe fracture and placed in a cast. Appellant saw Dr. Fletcher on March 6, 2007 and he
clearly stated that the injury sustained to her right leg and ankle resulted because of the weakness
in her left groin and leg.
By decision dated May 10, 2007, the Office denied appellant’s claim for a consequential
ankle injury.
On April 25, 2007 Dr. Fletcher reported that appellant’s ankle fracture was healing and
that she was currently disabled. He attributed the fracture as secondary to her left groin injury.
Appellant stated that her left groin problems caused her to fall on the steps which resulted in the
fracture.
In a letter dated March 15, 2008, appellant’s counsel requested reconsideration and
submitted a September 5, 2007 from Dr. Fletcher, who noted that appellant was first seen on
March 5, 2007 when she related a history of injuring her left groin at work. A magnetic
resonance imaging scan was performed and revealed degenerative changes in the labrum and left
femoral head. Dr. Fletcher noted that appellant used a cane to get around and had limited
ambulatory capability. This resulted in appellant’s right knee giving out and causing her to fall.

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Dr. Fletcher opined that her right ankle fracture was causally related to her left lower extremity
pain. He explained that appellant’s groin injury resulted in limited ambulatory capability and
resulted in her fall and the fracture of her right ankle.
In a September 10, 2007 report, Dr. David J. Dixon, a treating Board-certified orthopedic
surgeon, noted that appellant sustained an employment-related left groin injury on November 28,
2006 and a right trimalleolar fracture on March 7, 2007. He stated that, “secondary to the
weakness she developed in her left groin, she felt weak and fell on her right leg.” Dr. Dixon was
unable to provide an opinion as to whether appellant’s right ankle fracture was a consequence of
her left hip injury and deferred to the opinions of Dr. Fletcher and Dr. Katz.
In a March 30, 2009 decision, the Office denied modification of its May 10, 2007
decision.1
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.2
In discussing how far the range of compensable consequences is carried, once the primary injury
is causally connected with the employment, Professor Larson states:
“Thus, it is accepted that, once the work-connected character of any condition is
established, the subsequent progression of that condition remains compensable so
long as the worsening is not shown to have been produced by an independent
nonindustrial cause.”3
ANALYSIS
The Office accepted appellant’s claim for left hip and pelvis strain sustained on
November 28, 2006 and a recurrence of disability claim beginning February 6, 2007. Appellant
was placed on the periodic rolls in receipt of temporary total disability as a result of her injury.
The question is whether she sustained a consequential right ankle fracture causally related to her
accepted left hip and pelvis conditions.

1

The Board notes that, following the March 30, 2009 decision, the Office received additional evidence.
However, the Board may not consider new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); M.B., 60
ECAB ___ (Docket No. 09-176, issued September 23, 2009); J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes,
54 ECAB 373 (2003).
2

Larson, The Law of Workers’ Compensation § 10.00 (2007); see also John R. Knox, 42 ECAB 193 (1990).

3

Larson, supra note 2 at 10.02 (2003); see also Kathy A. Kelley, 55 ECAB 206 (2004); Stuart K. Stanton,
40 ECAB 859 (1989); Robert R. Harrison, 14 ECAB 29 (1962).

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In support of appellant’s claim for a consequential right ankle fracture she submitted
medical reports from Dr. Fletcher and Dr. Dixon.
On March 6, 2007 Dr. Fletcher mentioned appellant’s recent fall and her ongoing left
groin and left side pain. He stated that “she apparently already was having trouble with her left
side.” This report made no reference to the possibility of a consequential injury. Dr. Fletcher
did not address whether the accepted injury was causative in the recent fall. In a March 13, 2007
follow-up report, he reported only that “apparently the cause of her injury stemmed from an
injured left hip.”
On April 4, 2007 appellant made no mention of any left groin or left-sided pain when she
described how the injury to her right ankle occurred. She attributed her fall and subsequent right
ankle fracture to her right leg and knee buckling beneath her.
In a September 5, 2007 report, Dr. Fletcher attributed appellant’s fall and right ankle
fracture to her limited ability to ambulate and use of a cane. He stated that her right knee gave
out which caused the fall. Dr. Fletcher stated that appellant’s right ankle was “100 percent
causally related to her left lower extremity pain.” He explained that her groin injury resulted in
“limited ambulatory capability and hence resulted in her subsequent fall and fracture of her right
ankle.” The Board notes that Dr. Fletcher did not adequately explain how appellant’s limited
ambulatory capability caused her right knee to give out or buckle. He failed to address how her
right knee giving out and causing her to fall and fracture her right ankle was a natural
consequence of her accepted injury, rather than the result of an intervening cause. Dr. Fletcher
did not fully address his conclusion that her left hip and pelvis condition would cause weakness
in the right leg and knee.4 His opinion that appellant’s right ankle fracture was employment
related as it was caused by her left groin and left-sided pain is conclusory. Dr. Fletcher provided
insufficient medical reasoning explaining causal relationship between her fracture and the
accepted left hip and pelvis conditions. The Board has held that a medical opinion not fortified
by medical rationale is of diminished probative value.5 The reports of Dr. Fletcher are
insufficient to establish appellant’s consequential injury claim.
Dr. Dixon’s September 10, 2007 report is also insufficient to support appellant’s claim.
He related that she had sustained an employment-related left groin injury on November 28, 2006
and a right trimalleolar fracture on March 7, 2007. Dr. Dixon reported that “secondary to the
weakness [appellant] developed in her left groin, she felt weak and fell on her right leg.” He
noted, however, that he was unable to provide an opinion as to whether appellant’s right ankle
fracture was a consequence of her left hip injury. Dr. Dixon deferred to her attending physicians.
His opinion is speculative and equivocal on the issue of causal relation and of diminished
probative value.6 Dr. Dixon did not provide adequate medical rationale to support of his opinion.
4

Id.

5

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
6

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); D.D., 57 ECAB 734 (2006); Cecelia M.
Corley, 56 ECAB 662 (2005) (The Board has held that medical opinions which are speculative or equivocal in
character have little probative value).

4

He did not describe the history of appellant’s accepted condition in any detail or sufficiently
explain how the November 28, 2006 injury caused appellant to fall and fracture her right ankle.
Dr. Dixon attributed her fall to the development of weakness in her left groin, but she stated that
the fall occurred due to her right leg and knee giving out. The Board finds that his report is
insufficient to establish that appellant sustained a right ankle fracture as a consequence of her
accepted left hip and pelvis injuries
On appeal, appellant’s counsel contends that the reports from Drs. Dixon and Fletcher are
sufficient to establish her consequential injury. Appellant cites to the cases of King Palermo
(Travis Palermo)7 and Clement Jay After Buffalo8 as support that her right ankle fracture was a
natural consequence flowing from her accepted employment injury. While these cases pertain to
establishing a consequential injury, a rationalized medical opinion is still required to establish
that appellant’s right ankle fracture was a natural consequence of her left hip and pelvis
conditions. As noted, the reports from Dr. Fletcher and Dr. Dixon are not sufficient as the
physicians did not provide sufficient rationale explaining how her right ankle fracture was a
natural and direct consequence of her accepted employment injury.
Appellant failed to submit sufficient medical evidence to support her consequential left
injury claim. She failed to demonstrate how her right ankle fracture arose as a natural
consequence of her accepted injuries.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a consequential right
ankle fracture causally related to her November 28, 2006 employment-related left hip and pelvis
injuries.

7

45 ECAB 308 (1994).

8

45 ECAB 707 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 30, 2009 is affirmed.
Issued: July 22, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HCS, Murfreesboro, TN,
Employer
__________________________________________

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

Docket No. 13-1176
Issued: July 29, 2013

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 17, 2013 appellant filed a timely appeal from a November 5, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim and a
March 12, 2013 decision that denied merit review. 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 appellant met her burden of proof to establish that she
sustained an employment-related injury on September 4, 2012; and (2) whether OWCP properly
refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. §§ 8101-8193.

On appeal, appellant asserts that she was injured in the performance of duty on
September 4, 2012 when her neuropathic right foot slipped on a shiny, waxed floor.
FACTUAL HISTORY
On September 24, 2012 appellant, then a 64-year-old physician, filed a traumatic injury
claim, alleging that on September 4, 2012 her right foot gave way inside an employing
establishment building while she was walking to her office. She indicated that she injured her
right wrist, hand and elbow and stopped work that day.
By letter dated September 28, 2012, OWCP informed appellant of the type of evidence
needed to support her claim. In an October 20, 2012 response, appellant indicated that she
entered work through the emergency room and was going towards her office when her right foot
slipped on the tile floor and she fell onto her right upper extremity. She stated that she was seen
by an employing establishment nurse but, since there were no emergency orthopedic services
there, she elected to go to a private emergency facility, where she was evaluated and a radial
head fracture was diagnosed. Appellant described her medical condition and indicated that on
September 10, 2012 the fracture was surgically repaired and that she continues to have hand
therapy and orthopedic follow-ups.
In a September 5, 2012 note, an employing establishment nurse practitioner whose
signature is illegible, noted a history that appellant had a history of neuropathy of the right knee,
which gave out as she was walking into work and that she fell and injured her right arm. The
nurse indicated that appellant elected to travel by private vehicle to a local hospital for treatment.
In a September 4, 2012 emergency room report, Dr. Dexter L. Woods, Board-certified in
emergency medicine, noted a history that appellant slipped and fell at work. A right wrist x-ray
demonstrated no acute fracture. A computerized tomography (CT) scan of the right elbow
demonstrated an impacted and angulated fracture involving the radial neck. Dr. Woods
diagnosed right proximal radius fracture and appellant was discharged for follow-up with an
orthopedic surgeon. In a September 4, 2012 treatment note, Dr. Kyle S. Joyner, a Boardcertified orthopedic surgeon, noted that she reported a history of neuropathy and at times had lost
proprioception in the right lower extremity which could lead to a fall “as such was the case this
morning.” He described the preceding treatment, provided physical examination findings,
reviewed the CT scan study and diagnosed impacted mal-angulated right radial neck fracture.
Dr. Joyner recommended surgical treatment.
On September 10, 2012 Dr. Samir Patel, Board-certified in orthopedic surgery,
performed open reduction internal fixation (ORIF) of the right radial neck fracture. In a
September 26, 2012 report, Dr. Joyner noted seeing appellant in follow-up for a complaint of
right wrist pain. He reviewed x-rays of the right forearm and wrist, noting a well-aligned radial
neck fracture and no wrist fracture. Dr. Joyner diagnosed radial neck fracture, status post ORIF;
right wrist pain, likely secondary to the recent injury; and basilar thumb joint arthritis. He
recommended that appellant continue therapy. On October 3, 2012 Dr. Joyner provided physical
restrictions and advised that she could return to light duty on October 9, 2012. On October 12,
2012 appellant accepted a light-duty assignment in accordance with the restrictions provided by
Dr. Joyner.

2

By decision dated November 5, 2012, OWCP denied appellant’s claim on the grounds
that the evidence was not sufficient to establish that the injury arose during the course of
employment and within the scope of compensable work factors. It noted that both Dr. Joyner
and the employing establishment nurse reported a history of neuropathy that caused the fall.
On an OWCP appeal request form, on February 20, 2013 appellant indicated that she was
requesting reconsideration. In a nonmerit decision dated March 12, 2013, OWCP denied her
reconsideration request on the grounds that she did not raise substantive legal questions or
submit new and relevant evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 In order to determine whether an employee sustained an injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component is whether the employee actually
experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.4
Generally, an injury occurring on the industrial premises during working hours is
compensable unless the injury is established to be within an exception to such general rule.5 It is
also a well-settled principle of workers’ compensation law and the Board has so held that an
injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes an
employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is
not within coverage of FECA. Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. Although a fall is idiopathic, an injury resulting
from the fall is compensable if some job circumstance or working condition intervenes in
2

Roy L. Humphrey, 57 ECAB 238 (2005).

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

Tracey P. Spillane, 54 ECAB 608 (2003).

5

N.P., Docket No. 08-102 (issued May 8, 2009).

3

contributing to the incident or injury, such as if an employee, instead of falling directly onto the
floor, strikes a part of his or her body against a wall, a piece of equipment, furniture, machinery
or some similar object.6
The question of causal relationship in such cases is a medical one and must be resolved
by medical evidence.7 However, the fact that the cause of a particular fall cannot be ascertained
or that the reason it occurred cannot be explained does not establish that it was due to an
idiopathic condition. This follows from the general rule that an injury occurring on the industrial
premises during working hours is compensable unless the injury is established to be within an
exception to the general rule. If the record does not establish that the particular fall was due to
an idiopathic condition, it must be considered as merely an unexplained fall, that is one which is
distinguishable from a fall in which it is definitely established that a physical condition
preexisted the fall and caused the fall.8
ANALYSIS
The Board finds that appellant’s fall on September 4, 2012 occurred in the performance
of duty. As noted above, an injury resulting from an idiopathic fall due to a personal
nonoccupational pathology is not compensable.9 However, if the cause of a particular fall cannot
be ascertained, the fall is then considered an unexplained fall.10 To properly apply the idiopathic
fall exception to the premises rule, there must be two elements present: a fall resulting from a
personal, nonoccupational pathology and no contribution from the employment.11 OWCP has
the burden to present medical evidence showing the existence of a personal nonoccupational
pathology and the mere fact that an employee has a preexisting medical condition, without
supporting medical rationale, is not sufficient to establish that a fall is idiopathic.12
The medical evidence in this case does not clearly establish that appellant’s fall was
idiopathic. While appellant, who is a physician, indicated that she has a neuropathic right foot
and indicated on the claim form that her right foot gave way causing her to fall, she also
indicated that the floor was waxy and shiny. The medical evidence regarding her neuropathic
condition is scant. The September 5, 2012 note from the employing establishment nurse is of no
probative value because nurses are not physicians under FECA and are not competent to render a

6

Carol A. Lyles, 57 ECAB 265 (2005).

7

Lowell D. Meisinger, 43 ECAB 992 (1992).

8

See Martha G. List (Joseph G. List), 26 ECAB 200 (1974).

9

Carol A. Lyles, supra note 6.

10

Martha G. List (Joseph G. List), supra note 8.

11

N.P., supra note 5.

12

Steven S. Saleh, 55 ECAB 169 (2003).

4

medical opinion.13 Dr. Woods did not mention a preexisting condition in the September 4, 2012
emergency room report. In a September 4, 2012 treatment note, Dr. Joyner noted a history of
neuropathy and indicated that at times appellant had lost proprioception in the right lower
extremity, which could lead to a fall as had happened that morning.
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.14 As there is no conclusive
evidence regarding the cause of the September 4, 2012 fall, it must be considered an unexplained
fall that occurred in the performance of duty.15 The case must therefore be remanded to OWCP
to determine the nature and extent of any injury or disability that resulted from the fall. After
such further development deemed necessary, OWCP shall issue an appropriate decision.
In light of the Board’s findings regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that appellant’s September 4, 2012 fall at work was an unexplained fall
and therefore occurred within the performance of duty.

13

See K.W, 59 ECAB 271 (2007); G.G., 58 ECAB 389 (2007). Section 8101(2) of FECA provides that
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2); see L.D., 59
ECAB 648 (2008).
14

Ricky S. Storms, 52 ECAB 349 (2001).

15

Steven S. Saleh, supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 12, 2013 and November 5, 2012 are set aside and the case
is remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: July 29, 2013
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
__________________________________________
R.H., Appellant
and
DEPARTMENT OF DEFENSE, CLEAR AIR
FORCE STATION, Denali, AK, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0251
Issued: November 28, 2018

Case Submitted on the Record

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

JURISDICTION
On November 15, 2016 appellant, through counsel, filed a timely appeal from August 2
and November 8, 2016 merit decisions 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 filed a timely claim for compensation under 5 U.S.C. § 8122.

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 November 2, 2015 M.W., a chief injury compensation official with the employing
establishment, signed an occupational disease claim (Form CA-2) on behalf of appellant, then a
38-year-old retired firefighter. The form alleged that exposure to heavy lifting, pushing, and
pulling up to 300 pounds, bending, stooping, etc., while working 100 fires and 400 emergency
calls from 2000 to 2010, caused herniated discs at C4 to T1, L1-2, and L5-S1, bilateral carpal
tunnel syndrome, and right scaphotrapezoidal (STT) joint arthritis of the thumb. The claim form
indicated that appellant first became aware of the conditions on October 22, 2010 and realized they
were caused or aggravated by employment on February 6, 2012, the date appellant stopped work.
On the claim form M.W. indicated that appellant was separated by the employing establishment
on December 19, 2012, and that disability retirement was approved on June 27, 2014. She related
that the employing establishment initially received this claim for an October 2010 injury on
February 3, 2015.3
The record before the Board also includes the first page of an occupational disease claim
form, which was signed by appellant on January 13, 2015 and received by OWCP on
May 28, 2015. On that claim form, appellant also alleged that exposure to heavy lifting, pushing,
and pulling up to 300 pounds, bending, stooping, etc. while working 100 fires and 400 emergency
calls from 2000 to 2010, caused herniated discs at C4 to T1, L1-2, and L5-S1, bilateral carpal
tunnel syndrome, and right STT joint arthritis of the thumb. He stated that he first became aware
of his claimed conditions on October 22, 2010 and of their relationship to his federal employment
on February 6, 2012.
A number of documents were also submitted in November 2015, including correspondence
from appellant’s then-counsel, dated May 15, 2015, which notified OWCP that appellant was
filing a new claim. On August 24, 2015 appellant’s then-counsel wrote his congressional
representative, seeking assistance. He indicated that he had submitted an occupational disease
claim to a human resources coordinator at appellant’s former employing establishment in
February 2015, but had not received an acknowledgement. Appellant’s then-counsel related that
he thereafter submitted a claim to OWCP in Philadelphia in May 2015 and again, receipt was not
confirmed.
Also submitted in November 2015 was a Notification of Personnel Action (Form 50-B),
effective January 3, 2010, indicating that appellant was a firefighter at the employing
establishment, a second Form 50-B, effective December 19, 2012, indicating that appellant was
separated that day for being absent without leave since February 6, 2012, a June 27, 2014
notification from the Office of Personnel Management that appellant’s disability retirement had
been approved, and documentation showing a priority mail delivery from counsel’s office to
appellant.

3

The present claim was assigned OWCP File No. xxxxxx025. Appellant also has other claims before OWCP,
including a traumatic injury claim under OWCP File No. xxxxxx877. That claim, which involved an incident that
occurred on February 6, 2012, was denied by OWCP. OWCP File Nos. xxxxxx025 and xxxxxx877 have not been
administratively combined.

2

The instant record, adjudicated by OWCP under File No. xxxxxx025, also includes a
traumatic injury claim (Form CA-1) alleging that appellant injured his lower back at work on
March 24, 2004. This claim, adjudicated by OWCP under File No. xxxxxx867, was accepted for
lumbar sprain, strain. A second traumatic injury claim, adjudicated under File No. xxxxxx877,
was filed on February 6, 2012, alleging that appellant injured his back when he slipped and fell at
work that day. A December 23, 2013 nonmerit decision, issued under File No. xxxxxx877,
indicates that the claim was denied.
In a statement dated October 24, 2014, appellant described his job duties and physical and
mental conditions. In e-mails dated November 2, 2015, M.W. notified Mr. Pines’ office that she
had filed a Form CA-2 claim with the Department of Labor that day.
Appellant also submitted medical evidence dated October 22, 2010 to January 17, 2015.
This included physician’s treatment notes, operative reports for a February 7, 2011 right carpal
tunnel release and an October 24, 2013 microdiscectomy and fusion at C4 through C7, various
diagnostic studies including magnetic resonance imaging (MRI) scans of the cervical spine and
right wrist, and an upper extremity electrodiagnostic study.
By letter dated November 18, 2015, OWCP informed appellant of the evidence needed to
support his claim. It explained that it was unclear that his claim had been timely filed and asked
for substantiating information. Appellant was given 30 days to respond. In a second
November 18, 2015 letter, OWCP asked the employing establishment to furnish a statement from
a knowledgeable supervisor and to describe appellant’s job duties.
In a January 29, 2016 decision, OWCP noted that appellant’s last exposure to work factors
was on February 6, 2012, and his occupational disease claim was not filed until November 2, 2015.
It indicated that, although the record included a copy of a Form CA-2 signed by appellant on
January 13, 2015, placed into File No. xxxxxx877, there was no factual evidence to show that this
was submitted to the employing establishment, noting that the second page of the Form CA-2 was
the second page of a Form CA-1 for a February 6, 2012 injury.
On May 4, 2016 appellant, through counsel, requested reconsideration. Counsel asserted
that an attached January 23, 2015 letter from appellant’s prior counsel, Mr. Pines, supported that
appellant’s occupational disease claim was timely filed.4 U.S. Postal Service tracking
documentation provided indicates that a first class letter, sent by certified mail, was delivered to
Eielson Air Force Base, Alaska, on February 2, 2015.5
In a merit decision dated August 2, 2016, OWCP again found appellant’s claim untimely,
indicating that his claim should have been filed no later than February 6, 2015, and that it was not
filed until November 2, 2015. It noted that, although it appeared that something was mailed and
received, it was not clear what was sent.

4

A copy of a January 23, 2015 letter is not found in the case record.

5

Clear Air Force Station, where appellant was employed, is a subsidiary station of Eielson Air Force Base.

3

Appellant, through counsel, requested reconsideration on August 10, 2016. Counsel
contended that, on the Form CA-2 forwarded to OWCP on November 2, 2015, M.W. indicated
that appellant first reported his condition to a supervisor on February 3, 2015, thus making the
claim timely, in accordance with section 2.801.4(a)(2) and (a)(5) of OWCP’s procedures. A copy
of the Form CA-2, filed on November 2, 2015, was attached.
In a merit decision dated November 8, 2016, OWCP again found appellant’s claim
untimely. It noted that appellant’s supervisor did not have actual knowledge of his claimed injury
within 30 days, and written notice was not given until the claim was filed on November 2, 2015,
which was more than three years after February 6, 2012, the date of last exposure.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.6 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability or
death must be filed within three years after the injury or death.7 Section 8122(b) provides that, in
latent disability cases, the time limitation does not begin to run until the claimant is aware, or by
the exercise of reasonable diligence should have been aware, of the causal relationship between
the employment and the compensable disability.8 The Board has held that, if an employee
continues to be exposed to injurious working conditions after such awareness, the time limitation
begins to run on the last date of this exposure.9
Even if a claim is not filed within the three-year time limitation period, it would still be
regarded as timely under section 8122(a)(1) if the immediate superior had actual knowledge of his
alleged employment-related injury within 30 days or written notice of the injury was provided
within 30 days pursuant to section 8119.10 The knowledge must be such as to put the immediate
superior reasonably on notice of an on-the-job injury or death.11 The Board has indicated that an
employee need only be aware of a possible relationship between his or her condition and his or her
employment to commence the running of the applicable statute of limitations.12
OWCP’s procedures provide that, if the claimant did not file within the statutory time
limitations after exposure to the employment factors ceased, the medical reports should be
examined to determine whether the claimant was aware or reasonably should have been aware, of
the illness and its possible relationship to employment. For example, the history obtained at the
6

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

7

5 U.S.C. § 8122(a).

8

Id. at § 8122(b).

9

See Linda J. Reeves, 48 ECAB 373 (1997).

10

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

11

Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015).

12

Edward C. Hornor, 43 ECAB 834, 840 (1992).

4

time of the first and subsequent examinations, the date when a definite diagnosis was made or the
advice given by the physician to the claimant, may assist in determining the issue of possible
awareness.13 The procedures further provide that the date a claim was filed can be established by
entries on the claim form, the date of receipt noted by the employing establishment or by OWCP,
the date the employing establishment transmitted it to OWCP, or a statement from the official
superior confirming the date the claim was received by the employing establishment.14
ANALYSIS
The Board finds that appellant’s occupational disease claim was timely filed pursuant to
section 8122 of FECA.
Where an employee continues in the same employment after he or she reasonably should
have been aware that he or she has a condition, which has been adversely affected by factors of
federal employment, the time limitation begins to run on the date of the last exposure to the
implicated factors.15 Appellant’s date of last exposure to the claimed employment factors alleged
to have caused her injury was February 6, 2012. Thus, appellant had until February 6, 2015 to
timely file her claim.
The case record reveals that, on May 28, 2015, OWCP received the first page of a Form
CA-2 occupational disease claim, signed by appellant on January 13, 2015. It alleged injury due
to extreme heavy lifting, pushing, and pulling (up to 300 pounds) and repetitive bending and
stooping in the course of his federal employment. On November 2, 2015 OWCP received a nearly
identical Form CA-2 occupational disease claim. It contained the same information alleged on the
prior form, but included a second page and was submitted for appellant by M.W., an employing
establishment injury compensation specialist, on November 2, 2015. The Board notes that M.W.
reported on the second page of the claim form that the employing establishment initially received
appellant’s occupational disease claim on February 3, 2015. As appellant had until February 6,
2015 to timely file her claim, a claim form received on February 3, 2015 would have been timely
filed. The case record does not include a claim form documenting receipt on February 3, 2015.
However, as noted above, OWCP’s procedures provide that the date of filing a claim can be
established by entries on the claim form, the date of receipt noted by the employing establishment
or by OWCP, or a statement from the official superior confirming the date the claim was received
by the employing establishment.16 As M.W. confirmed on the November 2, 2015 claim form that
the employing establishment initially received appellant’s occupational disease claim on
February 3, 2015, the Board finds that the claim was timely filed.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6b (March 1993).

14

Id. at Chapter 2.801.4a.

15

Id. at Chapter 2.801.6.

16

Supra note 14.

5

CONCLUSION
The Board finds that appellant has filed a timely claim for compensation under 5 U.S.C.
§ 8122.
ORDER
IT IS HEREBY ORDERED THAT the November 8 and August 2, 2016 decisions of the
Office of Workers’ Compensation Programs are reversed.17
Issued: November 23, 2018
Washington, DC

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

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

17
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

6