United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 18-1303
Issued: April 18, 2019

Case Submitted on the Record

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

JURISDICTION
On June 18, 2018 appellant filed a timely appeal from a December 20, 2017 merit decision
and an April 2, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her right
wrist conditions were causally related to the accepted factors of her federal employment; and
(2) whether OWCP properly denied her request for a review of the written record before an OWCP
hearing representative, pursuant to 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 7, 2017 appellant, then a 63-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained an injury while in the performance of duty.
She indicated that she first became aware of her claimed condition and related it to factors of her
federal employment on May 31, 2017. On the reverse side of the claim form the employing
establishment indicated that appellant stopped work on August 24, 2017 and has not returned.
OWCP received a report dated March 27, May 31, June 21, August 24, and September 8,
2017 from Dr. Herbert Kunkle, Jr., a Board-certified orthopedic surgeon. In the March 27, 2017
report, Dr. Kunkle related that appellant was a right-handed mail carrier who had experienced at
least six months of right hand tingling, numbness, weakness and a “band” radiating up her right
arm and shoulder. He indicated that “it seems like she has over use tenosynovitis along with a
carpal tunnel in the right hand.” Dr. Kunkle diagnosed right wrist pain, transient synovitis of the
right wrist, and carpal tunnel syndrome of the right wrist. He also treated appellant on May 31
and June 21, 2017. Dr. Kunkle performed a right carpal tunnel release on August 24, 2017 and
saw her for follow up on September 8, 2017.
OWCP also received an August 18, 2017 nurse’s note and a May 17, 2017
electromyography study which was interpreted as within normal limits.
By development letter dated October 16, 2017, OWCP informed appellant that additional
factual and medical evidence was necessary to establish her claim. It explained that she had not
alleged employment factors or activities which she believed caused her condition. OWCP
requested that appellant complete a questionnaire describing those activities. It also informed her
that rationalized medical evidence from a physician establishing causal relationship between a
diagnosed condition and alleged employment factors was necessary to establish her claim. OWCP
afforded appellant 30 days to submit the necessary evidence.
In response, OWCP received a September 28, 2017 attending physician’s report (Form
CA-20) from Dr. Kunkle, who explained that appellant’s pain worsened over a period of time.
Dr. Kunkle checked a box marked “no” in response to whether appellant had a preexisting
condition. He diagnosed: pain in right wrist; transient synovitis, right wrist; and carpal tunnel
syndrome. Dr. Kunkle checked a box marked “yes” in response to whether he believed the
conditions were caused or aggravated by an employment activity and added in “consistent use.”
He indicated that appellant had been disabled from August 24 to September 28, 2017 and indicated
she could resume work. OWCP also received an October 2, 2017 light-duty form from
Dr. Kunkle, who indicated that he last saw appellant on September 28, 2017. Dr. Kunkle noted
that appellant did not have any physical restrictions.
OWCP received nurses’ notes dated September 28 and October 17, 2017.
In an October 28, 2017 response, appellant indicated that her employment duties included
the casing of raw mail and delivery point sequence (DPS) mail and pulling down of mail and
delivery of mail. She indicated that she had performed these duties for over 10 years on an
intermittent basis for up to 8 hours and continuously for up to 4 hours. Appellant advised that she
first noticed her condition in March 2017. She indicated that she had pain, swelling, stiffness, and

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stabbing pain, of the right wrist which was continuous. Appellant also noted that she was not able
to hold the mail in her hand while casing mail and that her condition was worsened by “everyday
work.” She confirmed that she was claiming an occupational disease.
In an October 31, 2017 statement, the postmaster advised that he concurred with
appellant’s statements. He noted her repetitive hand and wrist movements included: casing mail;
pulling down; and delivery of mail on a daily basis.
By decision dated December 20, 2017, OWCP found that appellant had established the
alleged employment factors and that she had been diagnosed with a medical condition. However,
it denied her claim as the medical evidence did not demonstrate that her right wrist conditions were
causally related to the accepted employment factors.
On an appeal request form dated March 13, 2018 appellant requested a review of the
written record before an OWCP hearing representative. Her request was postmarked March 13,
2018 and received by OWCP on March 23, 2018. OWCP continued to receive medical evidence.
By decision dated April 2, 2018, OWCP determined that appellant was not entitled to an
oral hearing or a review of the written record as a matter of right under section 8124(b) because
her March 13, 2018 request was not made within 30 days of the December 20, 2017 merit decision.
Appellant considered whether to grant a discretionary hearing or a review of the written record on
her case, but determined that the matter could be equally well addressed by appellant requesting
reconsideration and providing new evidence supporting that she sustained an employment-related
condition.
LEGAL PRECEDENT -- ISSUE 1
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 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 are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is

2

S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); Victor J. Woodhams, 41 ECAB 345 (1989).

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claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant.4
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that her right wrist conditions were
causally related to the accepted factors of her federal employment.
In a March 27, 2017 report, Dr. Kunkle diagnosed transient synovitis on the right wrist,
and carpal tunnel syndrome. However, this report did not opine as to whether appellant’s
employment factors as a rural mail carrier caused or aggravated the diagnosed conditions. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.6 Therefore, this report is insufficient to
establish appellant’s claim.
Dr. Kunkle treated appellant on May 31 and June 21, 2017. He performed a right carpal
tunnel release on August 24, 2017. Dr. Kunkle saw her for follow up on September 8, 28 and
October 2, 2017; however, he merely noted that appellant did not have any restrictions. He did
not offer an opinion regarding causal relationship in these reports. Thus, they are of no probative
value in establishing causal relationship.7
In a September 28, 2017 attending physician’s report, Dr. Kunkle diagnosed: pain in right
wrist; transient synovitis, right wrist; and carpal tunnel syndrome. He checked the box marked
“yes” indicating that he believed the conditions were caused or aggravated by an employment
activity. The Board has held, however, that when a physician’s opinion on causal relationship
consists only of checking a box marked “yes “ to a form question, without explanation or rationale,
that opinion has limited probative value and is insufficient to establish a claim.8 As such

4

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Id.

6

See M.H., Docket No. 18-1737 (issued March 13, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
7

Id.

8

M.O., Docket No. 18-1056 (issued November 6, 2018). See Deborah L. Beatty, 54 ECAB 340 (2003).

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Dr. Kunkle has not provided a rationalized medical explanation as to how appellant’s employment
factors caused her diagnosed conditions. His reports are therefore of limited probative value.9
The August 18, September 28, and October 17, 2017 nurses’ notes are also insufficient to
establish the claim. Health care providers such as nurses, physician assistants, and physical
therapists are not considered “physician[s]” as defined under FECA.10 Thus, a nurse’s opinion
does not constitute competent medical evidence11 and has no probative value.12
OWCP also received evidence of diagnostic testing. The Board, however, has held that
diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between appellant’s employment factors and a diagnosed condition.13
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated her right wrist condition, appellant has not met her burden of proof to
establish that her right wrist conditions were causally related to the accepted factors of her federal
employment.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: “Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.”14
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between two formats, an oral hearing or a review of the written record.
In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.15 A request for either an oral hearing or a review of the written record must be
9

Id.

10

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 5 U.S.C. § 8102(2) of FECA 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. See also Roy L. Humphrey, 57 ECAB 238 (2005).
11

See T.F., Docket No. 17-0645 (issued August 15, 2018) (the Board has long held that nurses are not considered
physicians under FECA and are therefore not competent to render a medical opinion.
12

R.A., Docket No. 17-1498 (issued August 1, 2018).

13

T.H., Docket No. 18-1736 (issued March 13, 2019); S.G., Docket No. 17-1054 (issued September 14, 2017).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

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sent, in writing, within 30 days of the date of the decision for which the hearing is sought.16 A
claimant is not entitled to a hearing or a review of the written record if the request is not made
within 30 days of the date of the decision.17
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record and must properly exercise such
discretion.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request for
review of the written record before an OWCP hearing representative pursuant to 5 U.S.C. § 8124.
OWCP properly determined that appellant’s request for a review of the written record was
untimely filed. Its regulations provide that the hearing request or request for a review of the written
record must be sent within 30 days of the date of the decision for which a hearing is sought.19 As
appellant’s request was postmarked March 13, 2018, more than 30 days after OWCP’s
December 20, 2017 decision, it was untimely filed and she was not entitled to an oral hearing or a
review of the written record as a matter of right.20
The Board further finds that OWCP properly exercised its discretion in denying appellant’s
request for a review of the written record by determining that the issue in the case could be
addressed equally well through a request for reconsideration and the submission of new evidence
relevant to the issue at hand.21 The Board has held that the only limitation on OWCP’s
discretionary authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary
to logic and probable deduction from established facts.22 In this case, the evidence of record does
not establish that OWCP abused its discretion in denying appellant’s request for a review of the
written record. Accordingly, the Board finds that OWCP properly denied her request for a review
of the written record.23

16

Id. at § 10.616(a); G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188 (2001).

17

See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

18

20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018).

19

See supra note 17.

20

See W.C., Docket No. 18-1651 (issued March 7, 2019).

21

See D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

22

See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

23

See J.O., Docket No. 17-0789 (issued May 15, 2018).

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CONCLUSION
The Board finds that appellant has not established that her right wrist conditions were
causally related to the accepted factors of her federal employment. The Board further finds that
OWCP properly denied her request for a review of the written record before an OWCP hearing
representative, pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2018 and December 20, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 18, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
TENNESSEE VALLEY AUTHORITY,
CUMBERLAND FOSSIL PLANT,
Cumberland, TN, Employer
__________________________________________

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

Docket No. 09-1204
Issued: March 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2008 appellant filed a timely appeal from September 25, 2007 and April 15,
2008 merit decisions of the Office of Workers’ Compensation Programs denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On March 7, 2007 appellant, then a 63-year-old yard electrician technician, filed an
occupational disease claim alleging that he sustained a stress-related condition due to factors of
his federal employment. He attributed his condition to the way he was treated after he returned
to work following a traumatic injury to his head. Appellant related that he was separated from

the rest of his coworkers and began to worry that he would be fired.
establishment terminated him from employment on May 15, 2006.

The employing

On April 18, 2007 the Office requested additional factual and medical information from
appellant. In a statement received April 23, 2007, appellant related that his condition began on
October 22, 2001 after he returned to work from a September 8, 2001 head injury.1 He alleged
that the employing establishment put him in a tiny room behind a tool room where it kept
lubricants and cables. Appellant related that the room was “poorly lighted and heated” and that
he wore heavy clothing in the winter. He felt isolated from his coworkers and was given
unnecessary work making extension cords. Appellant related that the smell from the lubricants
stored in the room gave him severe headaches. When he complained about the room he found
out that the drain in the floor lead to the sewage system. Appellant was relocated to a location in
the electric shop with much improved conditions. After he received permanent work restrictions
in 2002 management began to harass him by trying to make him work outside with heavy
equipment even though that was not within his capability. Appellant feared losing his job for
five years prior to his termination on May 15, 2006.
On April 16, 2007 the employing establishment controverted the claim. Gary R.
MacDonald, a manager, related that appellant returned to light duty after his September 2001
work injury. On August 29, 2005 the Office notified him that it proposed to terminate his
compensation on the grounds that he had no residuals of his September 1, 2001 employment
injury. Appellant retired from the employing establishment on May 15, 2006.
On May 14, 2007 appellant described his treatment after the September 2001 injury. He
stated:
“Upon returning to work in October 01, I was assigned to an isolated rigging
room that was cold and not properly lighted and ventilated. I was not allowed to
go back to the electric shop where I was assigned before the accident. I was given
a table and chair and asked to make a few extension cords. Mostly, I was given
solitary confinement and often became sick at my stomach from the smells. I was
not able to take much of this so I took a lot of annual leave in November and
December. This lasted until March when there was a meeting with upper
management and it was decided to put me in the electric shop.”
Appellant related that the employing establishment did not provide him with meaningful
work and refused to train him for another position. In May 2002 a supervisor tried to assign him
work outside his restrictions. The employing establishment sent appellant for a psychiatric
evaluation in June 2004 and refused to allow him to be part of a voluntary reduction-in-force
(RIF). When his physician took him off work, the union told him that the employing
1

In a report dated June 9, 2004, Dr. Ronald Salomon, a Board-certified psychiatrist, diagnosed a severe mood
disorder secondary to a closed head injury and likely post-traumatic stress disorder (PTSD) due to his accident and
abusive treatment at work. He noted that appellant had no prior history of injury before a “10,000 pound
transformer fell on his head at work ... crushing his hard hat and head between the transformer and an immobile
structure….” Dr. Salomon related that he believed that management was attempting to force him to quit and placed
him in “a torture chamber with a table and light in a small room with oil and other odors emanating from a backed
up sewer with drain in the room.”

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establishment planned to terminate him. Appellant worried about losing his job. In 2005 the
employing establishment harassed him by sending him to nine doctors for fitness-for-duty
evaluations. The employing establishment terminated him in April 2006.
In a statement dated May 21, 2007, Mr. MacDonald indicated that appellant initially
worked in a room behind the tool room until he was moved after he complained of odors.
Appellant worked in the electric shop until provided an office to himself because of his injury.
He did not work outside his restrictions and performed “meaningful work.” Appellant performed
his duties as a modified electrician satisfactorily.
On April 14, 2006 the employing establishment notified appellant that it was terminating
him from employment effective May 15, 2006 because he was unable to perform the duties of
his position. It indicated that he had worked light duty since his injury on September 8, 2001 but
that the Office had determined that he had no residuals of his work injury.
In a statement dated July 12, 2007, appellant’s wife related that on September 8, 2001 he
sustained a head injury at work that required him to be “life-flighted to Vanderbilt.” He tried to
continue working but a neurologist took him immediately off work. Appellant’s wife noted that
the Office issued a notice of proposed termination under his head injury claim but that the
termination was reversed. The employing establishment put him in an unheated storage room
from October 2001 until early March 2002 and refused his request for training so that he could
do meaningful work.
By decision dated September 25, 2007, the Office denied appellant’s emotional condition
claim after finding that he did not establish any compensable employment factors. On
October 8, 2007 appellant requested an oral hearing.
At the hearing, held on March 4, 2008, appellant related that the employing establishment
refused his request for training after his September 2001 work injury. When he returned to work,
he was placed in a poorly lit room with a small heater on the ceiling. It smelled of lubricants and
sewer gas coming from a drain to the septic system. Supervisors would tell him that he had a job
assignment that he had to do or he would be fired. The job assignment would be to go for an
evaluation. The employing establishment tried to get his restrictions changed. He tried to apply
for managerial work but was told he was not qualified. In November 2002 appellant was placed
in an equipment room without any work. He experienced pain down his neck and left arm and
went to the emergency room because he believed that he had a stroke. The employing
establishment tried to prevent appellant’s return to work but his physician released him for duty.
Appellant began working in the electric shop and in 2003 again had problems with diesel fumes
and headaches. Coworkers sometimes threw gas bombs into his area so that he would have
headaches. The employing establishment denied his request to participate in a voluntary RIF.
By decision dated April 15, 2008, an Office hearing representative affirmed the
September 25, 2007 decision.
On appeal, appellant described the room he worked in when he returned to work
following his September 8, 2001 head injury. He reiterated that he performed duties that were
not meaningful.

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LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.8 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.9 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions

2

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

3

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

4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
5

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

6

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

7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

See James E. Norris, 52 ECAB 93 (2000).

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of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of the Act.
Appellant asserted before the Office and on appeal that he was not given meaningful
work after his September 2001 head injury. He related that the employing establishment denied
his request for training, refused to let him participate in a voluntary RIF and told him that he was
not qualified for a managerial position. The assignment of work duties, the granting or denying
of requests for training and the denial of promotions are administrative functions of the employer
and not duties of the employee.13 An administrative or personnel matter will be considered
compensable employment factors only where the evidence discloses error or abuse by the
employing establishment.14 An employee’s dislike of his job duties or the desire for a different
position is not a compensable factor of employment.15 In a statement dated May 21, 2007,
Mr. MacDonald, a manager at the employing establishment, maintained that appellant was
provided meaningful work within his restrictions. Appellant has not submitted sufficient
evidence to support his allegation that the employing establishment committed error or abuse in
the assignment of work, the denial of his request for training, the denial of a promotion or the
refusal to let him participate in a voluntary RIF, and thus he has not established a compensable
work factor.
10

Beverly R. Jones, 55 ECAB 411 (2004).

11

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

12

Id.

13

C.S., 58 ECAB 137 (2006); Hasty P. Foreman, 54 ECAB 427 (2003).

14

C.S., supra note 13; T.G., 58 ECAB 189 (2006).

15

Katherine A. Berg, 54 ECAB 262 (2002).

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Appellant further related that the employing establishment harassed him by sending him
for numerous fitness-for-duty examinations. If disputes and incidents alleged as constitutes
harassment and discrimination by supervisors and coworkers are established as occurring and
arising from the employee’s performance of his regular duties, these could constitute
employment factors.16 The evidence, however, must establish that the incidents of harassment
and discrimination occurred as alleged.17
Further, fitness-for-duty examinations are
administrative and personnel requirements and not compensable absent a showing or error or
abuse on the part of the employing establishment.18 Appellant has submitted no evidence
corroborating his allegation that the employing establishment harassed him or committed abuse
in sending him for fitness-for-duty examinations. Thus, he has not established a compensable
employment factor.
Appellant also related that in May 2002 a supervisor attempted to assign him work
outside his restrictions. The Board has held that being required to work beyond one’s physical
limitations could constitute a compensable employment factor if such activity is substantiated by
the record. Mr. MacDonald, however, denied that he was assigned work outside his restrictions.
Appellant has not established a factual basis for his allegation and further, he refused to perform
the duties. The possibility of a future injury does not form the basis for payment of
compensation under the Act.19
Appellant maintained that he was afraid that he would lose his job for five years. He
asserted that the employing establishment terminated him on May 15, 2006. A claimant’s job
insecurity is not a compensable factor of employment under the Act.20 While the record contains
an April 14, 2006 letter from the employing establishment notifying him of a proposed removal
because he was unable to perform the duties of his position, Mr. MacDonald related that
appellant retired from work.
Appellant attributed his condition, in part, to management placing him in a small room
that was poorly lit and smelled of fumes and sewage from October 1, 2001 until March 2002. He
asserted that he had headaches and nausea because of the smell and felt isolated from his
coworkers. On appeal, appellant contends that he became distressed and sustained an emotional
condition due in part to working in a dimly room that smelled of lubricants and sewage.
Mr. MacDonald did not dispute that he was exposed to fumes or that the room was poorly lit and
isolated but instead related that management moved him to another location after he complained
of fumes. The Board has held that when appellant encounters conditions such as odors in the

16

Janice I. Moore, 53 ECAB 777 (2002).

17

Id.

18

Lille M. Hood, 48 ECAB 157 (1996); Alice M. Washington, 46 ECAB 382 (1994).

19

Andy J. Paloukos, 54 ECAB 712 (2003).

20

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

6

performance of his regular or specially assigned duties, they may constitute compensable
employment factors under the Act.21
As appellant has established a compensable work factor, the case presents a medical
question regarding whether his emotional condition resulted from the compensable employment
factors. The case, therefore, must base its decision on an analysis of the medical evidence. As the
Office found there were no compensable employment factors, it did not analyze or develop the
medical evidence. The case will be remanded to the Office for this purpose. After such further
development as deemed necessary, the Office should issue a de novo decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 15, 2008 and September 25, 2007 are set aside and the case
is remanded for further action consistent with this opinion of the Board.
Issued: March 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

21

See Brenda L. Dubuque, 55 ECAB 212 (2004); Kathleen D. Walker, 42 ECAB 603 (1991).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Indianapolis, IN,
Employer
__________________________________________

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

Docket No. 09-1808
Issued: May 10, 2010

Case Submitted on the Record

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

JURISDICTION
On July 7, 2009 appellant filed a timely appeal from the June 29, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of a wage-earning
capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of his case.
ISSUE
The issue is whether the Office properly denied modification of its November 13, 2002
wage-earning capacity determination.
FACTUAL HISTORY
On March 17, 1996 appellant, then a 44-year-old mail handler, filed a claim alleging that
he sustained a pinched nerve and carpal tunnel syndrome in the performance of duty from lifting
large sacks and boxes of mail and pushing and pulling equipment. The Office accepted his claim
for aggravation of bilateral carpal tunnel syndrome and cervical sprain.

Appellant sustained other employment injuries. On July 1, 1997 he filed a claim alleging
that his herniated disc at C5-6 was causally related to his federal employment, which the Office
accepted. On August 17, 1999 appellant filed a claim alleging a left shoulder injury on June 2,
1997, which the Office also accepted for left shoulder impingement syndrome. He received a
schedule award for a 10 percent impairment of his left upper extremity.
Pursuant to a July 25, 2002 permanent rehabilitation job offer, appellant returned to work
as a modified full-time mail handler effective August 10, 2002. On November 13, 2002 the
Office found that his actual earnings in that position fairly and reasonably represented his wageearning capacity. As his actual earnings were equal to the current pay rate of his date-of-injury
position, it found that appellant had no loss of wage-earning capacity.
Appellant worked in this modified position until April 10, 2009, when he was sent home
because, according to the employer, no necessary and productive work was available within his
restrictions. Appellant indicated that his supervisor required him, without explanation, to file
claims for compensation for wage loss beginning April 10, 2009.
In a decision dated June 29, 2009, the Office denied compensation for wage loss. The
Office found that appellant failed to submit evidence sufficient to warrant a modification of the
November 13, 2002 determination of his wage-earning capacity.
On appeal, appellant states the employer gave him no reason in writing for being sent
home and no reason he had to submit claims for compensation for wage loss. He states that he
did not want to complete or submit the claims for compensation for wage loss.1
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3
If the disability is partial, the United States shall pay the employee during the disability
monthly monetary compensation based on the difference between his monthly pay and his
monthly wage-earning capacity.4
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by the employee’s actual earnings if the employee’s actual earnings
1

Appellant requested oral argument before the Board. On July 15, 2009 the Clerk of the Board advised him that
oral arguments were held only in Washington, DC and at his expense, and that the Board could not consider new
evidence. The Clerk of the Board asked appellant to inform the Board no later than July 30, 2009 if he still desired
the oral argument. The Clerk of the Board notified appellant: “If your response is not received by the above-stated
date, the Board will decide your appeal on the record without oral argument.” Appellant did not respond.
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

5 U.S.C. § 8106(a).

2

fairly and reasonably represent his or her wage-earning capacity.”5 Generally, wages actually
earned are the best measure of a wage-earning capacity and in the absence of evidence showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity
must be accepted as such measure.6
Once the wage-earning capacity of an injured employee is properly determined, it
remains undisturbed regardless of actual earnings or lack of earnings.7 A modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous. The burden of proof is on the party
attempting to show modification of the award.8
ANALYSIS
Regardless of the reason appellant filed his claims for wage loss, the issue that arises is
whether he is entitled to compensation for wage loss beginning April 10, 2009 because his
employer, citing the lack of any necessary and productive work within his restrictions, sent him
home from work.
Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn, not on actual wages lost.9 There is a distinction. When appellant performed his modified
full-time mail handler position in 2002 and continuing, he demonstrated that he had the capacity
to earn the same wages he was receiving at the time of injury. He showed that his employment
injuries were no longer incapacitating him from earning those wages. Therefore, on
November 13, 2002 the Office formally determined that he had returned to his preinjury capacity
to earn wages. When work was no longer available for appellant in 2009, he stopped receiving
wages. However, he still had a demonstrated capacity to earn the same wages he was receiving
at the time of injury.
With a formal determination of wage-earning capacity in place, an employee claiming
compensation for wage loss must show either a material change in the nature and extent of his
injury-related condition or that the original determination of wage-earning capacity was in fact
erroneous.10 Appellant has made no such showing. He explains on appeal that he did not even
want to file the claims for wage loss; he was instructed to do so by his supervisor.11 Therefore,
5

Id. at § 8115(a).

6

Don J. Mazurek, 46 ECAB 447 (1995).

7

Ronald M. Yakota, 33 ECAB 1629 (1982).

8

Daniel J. Boesen, 38 ECAB 556 (1987).

9

Yakota, supra note 7.

10

The third basis for modifying a formal determination -- that the employee has been retrained or vocationally
rehabilitation -- is a basis for the Office to reduce or terminate compensation for wage loss.
11

With no work available and having sent appellant home, the employer may have simply been looking after his
interests when it instructed him to apply for benefits that he might be entitled to. If appellant did not want to file the
claims, if he was not seeking compensation for wage loss, it is unclear to the Board why he disagrees with the
Office’s decision to deny that compensation.

3

appellant has presented no evidence that would allow a modification of the Office’s
determination of his wage-earning capacity.12
The Board finds that appellant has not met his burden to show that modification of the
Office’s November 13, 2002 decision is warranted. The original determination of his wageearning capacity stands regardless of his lack of earnings beginning April 10, 2009. Appellant is
not entitled to compensation for wage loss beginning that date. The Board will therefore affirm
the Office’s June 29, 2009 decision to deny such compensation.
CONCLUSION
The Board finds that the Office properly denied modification of its November 13, 2002
wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See K.R., 60 ECAB ___ (Docket No. 09-0028, issued September 16, 2009).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, DISTRICT HEALTH
& RESOURCE MANAGEMENT OFFICE,
Middle Florida, FL, Employer
__________________________________________

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

Docket No. 09-1580
Issued: February 17, 2010

Case Submitted on the Record

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

JURISDICTION
On June 3, 2009 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated February 9 and April 30, 2009. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury to his left
shoulder/left upper back in the performance of duty.
FACTUAL HISTORY
Appellant, a 60-year-old mail handler, filed a Form CA-1 claim for benefits on
December 29, 2008, alleging that he strained his left upper back, just beneath the left shoulder
blade, while throwing a heavy bundle of mail on December 17, 2008. The employing
establishment controverted the claim on the grounds that he did not file his claim until 12 days
after the alleged incident occurred and because the employee’s clock ring did not indicate where
the alleged incident occurred.

By letter dated January 5, 2009, the Office advised appellant that he needed to submit
additional factual and medical evidence in support of his claim. It stated that he had 30 days to
submit the requested information.
In a January 29, 2009 response letter to the Office, appellant asserted that he had been
unable to provide the requested medical evidence because he had yet to receive the requisite
reports from his treating physician. He stated that he consulted his physician on December 29,
2008; the physician diagnosed a shoulder strain and prescribed anti-inflammatory medicine and
muscle relaxers. Appellant stated that he was subsequently referred to an orthopedic surgeon,
who administered an x-ray test. He related that his shoulder had improved since then and he was
not experiencing pain or having any problems moving his shoulder. Appellant advised that he
was awaiting the results of his x-ray test but had declined having a magnetic resonance imaging
(MRI) scan for his left shoulder.
By decision dated February 9, 2009, the Office denied appellant’s claim, finding that he
failed to establish fact of injury. It found that the evidence appellant submitted was insufficient to
establish that the December 17, 2009 incident occurred as alleged; it noted that he failed to submit
a statement disproving the employing establishment’s assertion that he was not engaged in the
claimed activity of throwing a mail bundle at the time of the alleged incident.
In a report dated December 29, 2008, received by the Office on February 17, 2009,
Dr. Christopher Caggiano, an osteopath, related that appellant had been experiencing pain in his
left upper back due to a work incident in which he was throwing some heavy material and felt
discomfort in his upper back. He related that appellant had no numbness or tingling in his
extremity; he only felt pain when his arm was hanging. Dr. Caggiano stated that appellant had
no pain with full range of motion of the shoulder and no pain in the shoulder joint. He noted that
appellant had some pain in the rhomboid region and diagnosed a likely rhomboid strain.
In a January 29, 2009 report, received by the Office on February 17, 2009, Dr. Ronald
Hudanich, a specialist in orthopedic surgery, noted appellant’s complaints of left shoulder pain.
He advised that his left shoulder pain and symptoms had been triggered by a pulling incident
which had occurred two weeks previously, the symptoms were localized in the lateral aspect of
the left shoulder. Dr. Hudanich stated that the left shoulder pain had resolved since the work
injury. On examination, he noted that appellant had full, painless range of motion of the
cervical, thoracic and lumbar spine, with normal stability, strength and tone and not erythema,
ecchymosis or edema.
By letter dated February 25, 2009, appellant requested reconsideration. In his request
letter, he acknowledged that he was not working on the proper operation on the date of the injury.
Appellant stated, however, that he intended to submit a witness statement from a coworker who
was working alongside him while he was pitching heavy bundles of mail on December 17, 2009.
The Office did not receive any additional factual evidence.
By decision dated April 30, 2009, the Office denied modification of its prior decision.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.4 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.5
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty.6 Nor can the
Office find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in
order to establish the fact that an employee sustained an injury in the performance of duty, as
alleged, but the employee’s statements must be consistent with surrounding facts and
circumstances and her subsequent course of action.7 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury and failure to obtain medical treatment may cast doubt on an employee’s
statements in determining whether he or she has established his or her claim.8

1

5 U.S.C. § 8101 et seq.

2

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

3

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

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id. For a definition of the term “injury,” see 20 C.F.R. §10.5(e).

6

Elaine Pendleton, supra note 2.

7

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
8

See Constance G. Patterson, 12 ECAB 206 (1989).

3

ANALYSIS
The Office found that the record contained conflicting and inconsistent evidence regarding
whether the claimed event occurred at the time, place and in the manner alleged. As stated above,
the Board has held that an employee’s statement alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.9 In this case, however, appellant has not established fact of injury because of
inconsistencies in the evidence that cast serious doubt as to whether the specific event or incident
occurred at the time, place and in the manner alleged. Although he alleged on his CA-1 form that
he injured his left shoulder/left upper back on December 17, 2008 while throwing a bundle of mail,
this statement was contradicted by the employing establishment’s assertion that he was assigned to
a different work site at that time.10 Appellant did not indicate that the alleged injury occurred
while he was working in an unauthorized, unassigned work area until February 25, 2009, two
weeks after the Office’s February 9, 2009 decision denying the claim.11 This contradictory
evidence created an uncertainty as to the time, place and in the manner in which appellant
sustained his alleged left shoulder/left upper back injury.
In addition, appellant failed to submit to the Office a corroborating witness statement in
response to the Office’s request. This casts additional doubt on his assertion that he strained his
left shoulder/left upper back while throwing a bundle of mail on December 17, 2008. The Office
requested that appellant submit additional factual evidence explaining how he injured his left
shoulder/left upper back on the date in question. Appellant failed to submit such evidence.
Therefore, given the inconsistencies in the evidence regarding how he sustained his injury the
Board finds that there is insufficient evidence to establish that appellant sustained an injury in the
performance of duty as alleged.12

9

Patterson, supra note 8; Buffington, 34 ECAB 104 (1982).

10

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
11

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, supra note 10; Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation,
Chapter 2.900(b)(3) (September 1990).
12

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

4

CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left shoulder/left upper back injury in the performance of duty.13
ORDER
IT IS HEREBY ORDERED THAT the April 30 and February 9, 2009 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: February 17, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

On appeal, appellant has submitted a witness statement from a coworker. However, the Board cannot consider
new evidence that was not before the Office at the time of the final decision. See Dennis E. Maddy, 47 ECAB 259
(1995); James C. Campbell, 5 ECAB 35 (1952); 20 C.F.R. § 501(c)(1). Appellant may resubmit this evidence and
legal contentions to the Office accompanied by a request for reconsideration pursuant to 5 U.S.C. § 501(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, CENTRAL ILLINOIS
REGIONAL AIRPORT, Bloomington, IL,
Employer
__________________________________________

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

Docket No. 18-0535
Issued: December 31, 2018

Case Submitted on the Record

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

JURISDICTION
On January 18, 2018 appellant filed a timely appeal from a December 20, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to modify an August 12, 2016
loss of wage-earning capacity (LWEC) determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 4, 2012 appellant, then a 35-year-old part-time transportation security
officer, filed a traumatic injury claim (Form CA-1) alleging that he injured his lower back when
assisting a customer with baggage on that date. He initially missed intermittent periods from work,
and then stopped work completely on January 30, 2013. On February 12, 2013 OWCP accepted
the claim for lumbar back strain. It subsequently expanded acceptance of the claim to include
thoracic or lumbosacral neuritis or radiculitis and displacement of lumbar intervertebral disc
without myelopathy.
On March 7, 2013 appellant accepted a modified part-time position. He was terminated by
the employing establishment on March 8, 2013.2 OWCP initially paid appellant wage-loss
compensation and medical benefits on the daily rolls and then paid appellant compensation on the
periodic compensation roll, based on his part-time employment, as of April 8, 2013.
On an EN1032 form, signed by appellant on September 3, 2013, appellant indicated that
he had worked for AFNI, a private employer, performing office work, from September 2010 to
present. On an EN1032 form, signed by appellant on September 9, 2014, he indicated that he
began work with AFNI on September 27, 2010 and continued, and that on June 16, 2014 he began
a second office job with the City of Bloomington, Illinois.3
Following an October 1, 2014 inquiry by OWCP, on October 30, 2014 the City of
Bloomington indicated that appellant had commenced work as a cash collection manager for 40
hours a week on June 16, 2014, and earned $2,423.08 biweekly. A position description was
attached.4
In an EN1032, signed by appellant on October 1, 2015, he indicated that he had continued
to work with AFNI until March 2015 and also worked for the City of Bloomington. Appellant
continued to receive FECA compensation on the periodic roll.
OWCP obtained pay rate information from the employing establishment and prepared a
pay rate memorandum on August 12, 2016. This indicated that, based on a 20-hour workweek
with Sunday premium and night differential, appellant’s weekly pay rate was $843.44.
By decision dated August 12, 2016, OWCP determined that appellant’s actual earnings
with the City of Bloomington, Illinois, where he had worked since June 16, 2014, fairly and
2
The termination notice indicated that appellant, who was hired on June 19, 2011, was terminated during his twoyear trial period due to misconduct.
3

In February 2014, OWCP referred appellant to Dr. Eric Orenstein, a Board-certified orthopedic surgeon, for a
second-opinion evaluation. In a March 24, 2014 report, he advised that appellant could not return to a transportation
security officer position, but could return to work in a sedentary light-duty job.
4

The position description indicated that the manager managed, safeguarded, and reconciled most of the city’s water
utility revenues and collection activity, supervised support staff employees, and was responsible for ensuring excellent
customer service to the public. The work also involved developing customer service standards, enforcing internal
controls, and supervising within a collective bargaining agreement and under city policies to ensure that work
processes and rules were followed. The work was performed in an office environment.

2

reasonably represented his wage-earning capacity. It further found that he had no loss of wageearning capacity because his actual earnings of $1,211.54 per week met or exceeded the current
wages for the job he held when injured on November 4, 2012.
On August 20, 2016 appellant requested a hearing with OWCP’s Branch of Hearings and
Review. During the hearing, held before an OWCP hearing representative on March 6, 2017,
appellant testified that at the time of the November 4, 2012 employment injury, he worked full
time at AFNI as a performance improvement specialist, and worked part time for the employing
establishment. He indicated that at present he worked for the City of Bloomington, in a job just
like the position he had at AFNI, but that now he supervised more employees. Appellant
maintained that the LWEC determination should have been based on his full-time work at AFNI
as well as his part-time work at the employing establishment. The hearing representative explained
the criteria needed to modify an LWEC determination and asked that appellant furnish a job
description and earnings information from AFNI.
Appellant forwarded a job description of the performance improvement specialist position
at AFNI.5 He also forwarded income tax information for the years 2014, 2015, and 2016. This
included W2 forms reporting income from the City of Bloomington.6
By decision dated May 16, 2017, OWCP’s hearing representative affirmed the August 12,
2016 LWEC determination, finding that appellant had not met his burden of proof to establish that
the August 12, 2016 LWEC determination was erroneous.
On June 2, 2017 appellant requested reconsideration and provided a summary of his
employment.
By decision dated August 23, 2017, OWCP found appellant had submitted insufficient
evidence to support modification of the August 12, 2016 LWEC determination.
Appellant next requested reconsideration on September 5, 2017. He submitted federal and
state tracking information for the years 2011, 2012, and 2013.7

5

The position summary indicated that the performance improvement specialist provided support and direction to
coaches and collectors by answering questions, providing training, modeling behaviors, identifying performance
deficiency trends, input into curriculum development, and ensuring strategy is in affect and validating results. The
incumbent was to create trend reports and performance data to be provided to senior management as requested.
6

Appellant also forwarded treatment notes dated January 30 and March 28, 2017 in which Dr. Gustavo Galue, a
Board-certified family physician, described physical examination findings and diagnosed displacement of lumbar
intervertebral disc without myelopathy and low back pain radiating to the left leg. The record also includes treatment
notes dated September 26 and November 29, 2016 completed by Andrew Tharp, a nurse practitioner, who works with
Dr. Galue.
7
Appellant also submitted additional progress notes from Dr. Galue dated May 8 to November 27, 2017 in which
he described appellant’s low back pain, which was currently unchanged.

3

The employing establishment submitted appellant’s pay rate information for the date of
injury. It also provided the maximum salary of a full-time employee in August 2016 the date the
LWEC was issued when including night differential and Sunday and holiday premium pay.
By decision dated December 20, 2017, OWCP found that the evidence of record was
insufficient to warrant modification of the August 12, 2016 LWEC determination. It noted that,
as the position appellant held with AFNI in 2012 was dissimilar from his employing establishment
position, it obtained earnings of a full-time employee at the employing establishment performing
the same duties as appellant, who was a part-time employee. OWCP concluded that appellant’s
current pay rate in private employment was equal to or greater than the current pay of the job held
when injured and, therefore, there was no loss of wage-earning capacity.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on loss of wage-earning capacity.8 An LWEC determination
is a finding that a specific amount of earnings, either actual earnings or earnings from a
selected/constructed position, represents a claimant’s ability to earn wages.9 Generally, an
employee’s actual earnings best reflect his wage-earning capacity.10 Absent evidence that actual
earnings do not fairly and reasonably represent the employee’s wage-earning capacity, such
earnings must be accepted as representative of the individual’s wage-earning capacity.11
OWCP procedures provide that, if an injured employee has returned to alternative
employment in the private sector, the claims examiner should consider the number of hours
actually being worked in relation to the number the claimant is medically capable of working and
review both the nature of the occupation and the actual wages earned in the new position to
determine whether the earnings fairly and reasonably represent the wage-earning capacity.12
Compensation payments are based on these determinations, and OWCP’s finding remains
undisturbed until properly modified.13 Modification of a wage-earning capacity determination is
unwarranted unless there is a material change in the nature and extent of the injury-related

8

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see T.H., Docket No. 18-0704 (issued September 6, 2018).

9

See W.G., Docket No. 18-0374 (issued August 28, 2018).

10

T.H., supra note 8.

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determination of Whether Earnings Are Representative of
the Wage-Earning Capacity, Chapter 2.815.5d (June 2013).
13

See W.G., supra note 9; Katherine T. Kreger, 55 ECAB 633, 635 (2004).

4

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.14 The burden of proof is on the party seeking modification.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify the August 12,
2016 LWEC determination.16
Appellant asserts on appeal that the August 12, 2016 LWEC determination was erroneous
because it was not based on the two jobs that he held when injured on November 4, 2012. He does
not assert that he had established a material change in his employment-related condition or indicate
that he had been retrained or otherwise vocationally rehabilitated.
As the Board explained in the case Michael A. Wittman,17 OWCP is not restricted from
considering earnings from employment which commenced subsequent to the employment injury
in determining whether the actual earnings of the subsequent employment fairly and reasonably
represent an employee’s wage-earning capacity.18 If an employee’s earning capacity actually
increases after the injury by the commencement of a job or earnings in a position which he did not
have on the date of injury, whether or not similar to the federal employment at the time of injury,
OWCP may consider such earnings as a factor in evaluating his or her wage-earning capacity.19
At the time of the employee’s employment injury on November 4, 2012, he did not have concurrent
employment with the City of Bloomington, which he began on June 16, 2014, 19 months after the
employment injury.
Thus, in the case at hand, the Board finds that OWCP properly applied the principles of
section 8114(d) of FECA20 and determined that appellant had no loss of wage-earning capacity on
August 12, 2016 because his weekly earnings in private employment with the City of Bloomington
exceeded those of his federal employment. There is, therefore, no evidence to support that the
August 12, 2016 LWEC determination was erroneous.
Appellant argues that in determining appellant’s loss of wage-earning capacity, his fulltime earnings at AFNI should have been added to his earnings from his part-time employment at
the employing establishment, to determine his date-of-injury pay rate. The Board also notes that
the case Irwin E. Goldman, 23 ECAB 6 (1971), established the principle that earnings from
14
20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part
2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
15

J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

16

5 U.S.C. § 8114(d).

17

43 ECAB 800 (1992).

18

Id.

19

Id.

20
5 U.S.C. § 8114(d). This provision provides the methodology for determining average annual earnings. See also
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4 (March 2011).

5

concurrent, dissimilar employment shall be excluded by OWCP when determining an injured
federal employee’s pay rate. Thus, when appellant was injured on November 4, 2012 performing
transportation security duties, his dissimilar employment at AFNI doing office work shall not be
considered in his pay rate for compensation purposes.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify the August 12,
2016 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the December 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 31, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 15-0586
Issued: June 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 23, 2015 appellant filed a timely appeal of a January 5, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of compensation in
the amount of $3,366.84 for the period February 1 to March 9, 2013; and (2) whether OWCP
properly determined that appellant was at fault in creating the overpayment, thereby rendering
him ineligible for consideration of waiver.
On appeal appellant argued that he was not in receipt of dual benefits from the Office of
Personnel Management (OPM) and FECA at the same time.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 2005 appellant, then a 58-year-old manual clerk/mail processor, filed an
occupational disease claim (Form CA-2) alleging that on October 1, 2004 he first realized that
his bilateral hand and wrist conditions were employment related. OWCP accepted the claim for
bilateral radial styloid tenosynovitis, which was expanded to include bilateral thumb
carpometacarpal joint arthroplasty with flexor ligament reconstruction. It authorized right thumb
carpometacarpal joint interposition arthroplasty with flexor tendon ligament reconstruction
surgery, right wrist joint repair surgery, and right transplant forearm tendon surgery, which was
performed on November 30, 2005.
By letter dated October 15, 2012, OWCP placed appellant on the periodic rolls for
temporary total disability. It informed him that he would be paid every four weeks and his
regular payment would begin for the period October 21 to November 17, 2012.
When OWCP placed him on the periodic rolls, it notified him that he was not permitted
to receive workers’ compensation benefits concurrently with retirement benefits:
“You must report any retirement income, disability income, or compensation benefits
from any [f]ederal agency. This is because a recipient of compensation benefits under
[FECA] is not permitted to receive benefits under certain other [f]ederal programs,
including the Civil Service [R]etirement [P]rogram.”
In Form CA-110 notes dated January 30, 2013, appellant telephoned OWCP to provide
notice of his voluntary retirement from the employing establishment effective January 31, 2013.
OWCP received a February 26, 2013 Notification of Personnel Action (Form SF-50)
reflecting that appellant had retired from the employing establishment effective
January 31, 2013.
The employing establishment requested that OWCP send appellant an election of benefits
form to indicate whether he wanted to continue receiving FECA benefits or to receive retirement
benefits from OPM.
In a letter dated March 5, 2013, OWCP informed OPM that appellant had elected to
receive retirement benefits effective January 31, 2013 and noted that a copy of the election form
was attached.2 It requested reimbursement from OPM for FECA benefits in the amount of
$3,366.84 for the period February 1 to March 9, 2013.
In a July 17, 2013 letter, OPM informed OWCP that it began retirement benefit payments
to appellant effective February 1, 2013.
By letter dated May 28, 2014, OWCP advised appellant of a preliminary determination
that an overpayment of compensation in the amount of $3,366.84 had occurred. It explained that
he had elected OPM benefits effective January 31, 2013; therefore, the $3,366.84 in
2

The record does not contain a copy of the election form.

2

compensation paid from February 1 to March 9, 2013 constituted an overpayment. OWCP made
a preliminary determination that appellant was at fault in creating the overpayment as he knew or
should have known that he could not receive wage-loss compensation for the same period as
OPM retirement benefits.
On May 30, 2014 appellant disagreed with OWCP’s preliminary overpayment
determination and requested a prerecoupment hearing, which was held on November 3, 2014.
By decision dated January 5, 2015, an OWCP hearing representative finalized the
preliminary findings. She found that appellant had received an overpayment of compensation in
the amount of $3,366.84, as he could not collect retirement benefits and compensation for wage
loss at the same time. The hearing representative found that he was at fault in the creation of the
overpayment as he had accepted payments that he knew or should have known were incorrect.
She explained that appellant should have been reasonably aware that he was not entitled to
receive compensation from both OWCP and OPM for the same time period.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.3 While an employee is receiving
compensation, the employee may not receive salary, pay, or remuneration of any type from the
United States, except in limited specified instances.4 Thus, a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity. The beneficiary
must elect the benefit that he wishes to receive and any election, once made, is revocable.5
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.6
ANALYSIS -- ISSUE 1
A review of the record establishes that appellant received wage-loss compensation
commencing February 1 through March 9, 2013 covering the same period for which he would
also receive federal retirement benefits. Appellant retired from the employing establishment
effective January 31, 2013. OPM advised OWCP that appellant’s federal retirement benefits
became effective February 1, 2013. As noted, an employee cannot receive compensation under
FECA and retirement pay from OPM for the same period.7 Therefore, an overpayment of
compensation was created from February 1 to March 9, 2013.
3

Supra note 1 at § 8102(a).

4

Id. at § 8116(a). See Edward W. Spohr, 57 ECAB 287 (2005).

5

20 C.F.R. § 10.421(a). See Sharon Handy, 57 ECAB 446 (2006).

6

5 U.S.C. § 8129(a).

7

Supra note 5.

3

OWCP calculated that appellant was paid $3,366.84 in wage-loss compensation from
February 1 to March 9, 2013. On February 9, 2013 appellant received $818.96 for the period
February 1 to 9, 2013 and on March 9, 2013 he received $2,547.88 for the period February 10 to
March 9, 2013, resulting in an overpayment of $3,366.84. The Board finds that an overpayment
of compensation in the amount of $3,366.84 was created for the period February 1 to
March 9, 2013.
On appeal appellant argues that his OPM monthly checks did not start until August 1,
2013 so that he had not actually received prohibited dual benefits from OPM and FECA for the
same period. OPM informed OWCP in its July 17, 2013 letter that appellant’s retirement
benefits became effective on February 1, 2013. The relevant date is the effective date, not the
receipt date. OPM retirement benefits became effective February 1, 2013 despite appellant’s
argument that he did not actually receive payment for that period until August 1, 2013. The
Board must therefore find his retirement benefits from OPM commenced February 1, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA8 provides: Adjustment or recovery 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 FECA or would be against equity and
good conscience.9
OWCP may consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she received from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in reporting events, which may affect entitlement to or the amount of
benefits. A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment: (1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) Failed to provide information which he or
she knew or should have known to be material; or (3) Accepted a payment which he or she knew
or should have known to be incorrect (this provision applies only to the overpaid individual).10
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.11

8

Supra note 1 at § 8129(b).

9

J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55
ECAB 245 (2004).
10

20 C.F.R. § 10.433(a).

11

Id. at § 10.433(b).

4

ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment under the third
standard, namely that he accepted a payment to which he knew or should have known to be
incorrect. The Board finds appellant at fault for accepting wage-loss compensation for a period
already covered by his election to receive retirement benefits effective February 1, 2013.
Appellant had been advised that a person who receives compensation benefits under FECA is not
permitted to receive retirement benefits concurrently with FECA payments.
Notwithstanding this notice, appellant made an election to receive retirement benefits
retroactively to February 1, 2013. He had already received FECA benefits for a period after the
date of election. On February 9, 2013 appellant received $818.96 for the period February 1 to 9,
2013 and on March 9, 2013 he received $2,547.88 for the period February 10 to March 9, 2013,
resulting in the overpayment of $3,366.84. He was clearly aware that he could not receive
compensation for wage loss and OPM benefits for the same period.
Appellant informed OWCP that he was retiring effective January 31, 2013 and OWCP
noted by letter to OPM dated March 5, 2013 that appellant had elected OPM benefits. Although
an actual copy of appellant’s signed election form indicating the date he elected OPM benefits is
not in the record, OPM has verified that retirement benefits were effective February 1, 2013.
Appellant made an election, when he elected to receive retirement benefits, to receive a
prohibited dual benefit under 5 U.S.C. § 8116. His election created an overpayment of
compensation, and as of the effective date of the commencement of his retirement benefits, he
knew or should have known that he was not permitted to receive both FECA disability benefits
and OPM annuity benefits for the same period.12
The Board accordingly affirms OWCP’s decision on the issue of fault. OWCP may
consider waiving recovery of an overpayment only if the individual to whom it was made was
not at fault in accepting or creating the overpayment.13 As appellant was at fault in creating the
overpayment, he is not eligible for waiver. OWCP must therefore recover the debt.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment where OWCP decreases later payments of compensation.14 As appellant is no longer
receiving compensation benefit payments, the Board lacks jurisdiction to review the issue of
recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $3,366.84
because appellant received wage-loss compensation concurrently with OPM retirement benefits
for the period February 1 through March 9, 2013. The Board further finds that appellant was at
12

See B.G., Docket No. 14-2002 (issued August 13, 2015); N.P., Docket No. 15-1799 (issued January 11, 2016).

13

Supra note 10.

14

Supra note 1 at 8129; Levon H. Knight, 40 ECAB 658 (1989).

5

fault in the creation of the overpayment and thus ineligible for consideration of waiver of
recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 5, 2015 is affirmed.
Issued: June 6, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Princeton, NJ, Employer
_________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-398
Issued: May 6, 2013

Case Submitted on the Record

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

JURISDICTION
On December 10, 2012 appellant, through his attorney, filed a timely appeal of the
September 14, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 26, 2011,
the Board affirmed OWCP’s decision dated September 23, 2010. The Board found that appellant
did not meet his burden of proof to establish that his claimed conditions were causally related to
1

5 U.S.C. §§ 8101-8193.

his employment.2 The facts and circumstances of the case up to that point are set forth in the
Board’s prior decision and incorporated herein by reference.3
There was prior medical evidence which is relevant to the current appeal. Appellant was
treated by Dr. Daniel J. Fletcher, a Board-certified orthopedic surgeon, on June 1, 2009 who
noted that electrodiagnostic studies revealed mild right carpal tunnel syndrome and moderate left
carpal tunnel syndrome with mild-to-moderate left ulnar nerve neuropathy at the elbow.
Dr. Fletcher diagnosed bilateral carpal tunnel syndrome and left cubital tunnel syndrome. On
July 13, 2009 he noted that appellant was a mail carrier. Dr. Fletcher stated that the diagnosed
carpal tunnel syndrome was not directly related to appellant’s work due to the fact that he was
right-hand dominant and the left side was mainly affected.
Appellant was treated by Dr. Laura E. Ross, an osteopath, on March 15, 2010, who
diagnosed bilateral carpal tunnel syndrome that was worse on the right. In a June 14, 2010
report, Dr. Ross opined that appellant had permanent injuries to his wrist and knees due to
working as a letter carrier for 28 years. She noted that he was required to stand on tiles and a
concrete floor, twist, turn and bend while sorting mail, lift trays of mail weighing 25 to 35
pounds and walk five to eight hours a day while carrying a mailbag weighing 15 to 30 pounds.
Dr. Ross opined that all of these activities caused him to have issues regarding his knees and
bilateral carpal tunnel syndrome.
On July 20, 2012 appellant requested reconsideration and submitted additional medical
evidence. He submitted a July 10, 2012 report from Dr. Ross, who noted that he had permanent
injuries to his wrist and knees as a result of working as a letter carrier for 28 years. Dr. Ross
advised that in February 2009 appellant had a reaggravation of his bilateral carpal tunnel
syndrome due to the repetitive nature of his work, including casing mail, carrying a mailbag and
lifting trays of mail weighing 25 to 35 pounds which were loaded onto trucks two to three hours
a day. She noted that the mail parcels and mailbag weighed up to 15 to 30 pounds and were
carried on a regular basis. Dr. Ross noted that all of these repetitive traumas resulted in an
exacerbation of appellant’s carpal tunnel syndrome in both wrists.
In a decision dated September 14, 2012, OWCP denied appellant’s claim for
compensation on the grounds that the medical evidence was insufficient to establish that his
carpal tunnel syndrome was causally related to his job duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she 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
2

On March 26, 2009 appellant, then a 60-year-old mail carrier, filed an occupational disease claim, alleging that
he experienced swelling and numbness in his left wrist from performing repetitive duties such as sorting letters and
flats. He became aware of his condition on February 14, 2009. Appellant did not stop work.
3

Docket No. 11-470 (issued September 26, 2011).

2

manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
It is not disputed that appellant’s duties as a letter carrier included performing repetitive
duties such as sorting mail, lifting and carrying mail bundles and prolonged walking. It is also
not disputed that he has been diagnosed with bilateral carpal tunnel syndrome, left cubital
syndrome and degenerative joint disease of the left thumb. However, appellant has not
submitted sufficient medical evidence to establish that his diagnosed bilateral carpal tunnel
syndrome, left cubital syndrome and degenerative joint disease of the left thumb were causally
related to specific employment factors or conditions. He did not submit a rationalized medical
report from a physician addressing how specific employment factors may have caused or
aggravated his claimed conditions.
In support of his claim, appellant submitted a July 10, 2012 report from Dr. Ross, who
opined that he had permanent injuries to his wrist and knees as a result of working as a letter
carrier for 28 years. Dr. Ross advised that in February 2009 he had a reaggravation of his
bilateral carpal tunnel syndrome due to the repetitive nature of his work, including casing mail,
carrying a mailbag weighing 25 to 35 pounds and lifting trays of mail weighing 25 to 35 pounds
which was loaded onto trucks two to three hours a day. She noted that all of these repetitive
traumas exacerbated appellant’s bilateral carpal tunnel syndrome. The Board finds that, although
Dr. Ross supported causal relationship, she did not provide medical rationale explaining the basis
of her conclusory opinion regarding the causal relationship between appellant’s bilateral carpal
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
5

Solomon Polen, 51 ECAB 341 (2000).

3

tunnel syndrome and the factors of employment.6 Dr. Ross did not explain the process by which
casing mail, carrying a mailbag and lifting trays of mail would cause or aggravate the diagnosed
condition. The need for rationale is particularly important in view of the opinion of another
treating physician, Dr. Fletcher, questioned if appellant’s carpal tunnel syndrome was work
related.
The Board finds that the medical evidence does not establish that appellant has a bilateral
carpal tunnel syndrome, left cubital syndrome and degenerative joint disease of the left thumb
causally related to his employment. An award of compensation may not be based on surmise,
conjecture or speculation. Neither the fact that appellant’s condition became apparent during a
period of employment nor the belief that his condition was caused, precipitated or aggravated by
his employment is sufficient to establish causal relationship.7 Causal relationships must be
established by rationalized medical opinion evidence. As noted the medical evidence is
insufficient to establish appellant’s claim. Consequently, OWCP therefore properly found that
he did not meet his burden of proof in establishing his claim.
On appeal, appellant asserts that he submitted sufficient evidence to support that the
diagnosed bilateral carpal tunnel syndrome is work related and referenced Dr. Ross’s report. As
noted above, although Dr. Ross provided some support for relationship, she did not provide
medical rationale explaining how his bilateral carpal tunnel syndrome, left cubital syndrome and
degenerative joint disease of the left thumb were causally related to particular employment
factors.
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 did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment.

6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

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

4

ORDER
IT IS HEREBY ORDERED THAT the September 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5