United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
PERSONNEL OPERATIONS TEAM,
Jamaica, NY, Employer
__________________________________________

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

Docket No. 13-160
Issued: March 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2012 appellant filed a timely appeal from a June 14, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The record also contains an
October 4, 2012 nonmerit decision. 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.2
ISSUES
The issues are: (1) whether appellant has established an injury in the performance of
duty on April 23, 2012; and (2) whether OWCP properly denied appellant’s application for
reconsideration without reviewing the merits of her claim for compensation.
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new medical evidence. The Board’s review of a case is limited to evidence that
was before OWCP at the time of the final decision on appeal. The Board cannot consider new evidence on appeal.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 26, 2012 appellant, then a 48-year-old telephone service representative, filed a
traumatic injury claim (Form CA-1) alleging that on April 23, 2012 she sustained an injury when
she pushed on a door that was opening slowly. Appellant stated that she felt a pull under her left
breast and felt pain. The reverse side of the claim form indicated that appellant stopped working
on April 24, 2012.
Appellant submitted a Form CA-16 (authorization for treatment), with the physician’s
portion of the form dated April 24, 2012 and completed by Dr. Suresh Patel, a Board-certified
internist, who reported a history of injury that appellant hurt the left side of the chest wall trying
to open a bathroom door on April 23, 2012. Dr. Patel diagnosed atypical chest pain and checked
a box “yes” that the condition was caused or aggravated by employment. He submitted notes
dated April 24, May 4 and 18 and June 8, 2012 indicating that appellant remained off work due
to chest pain.
By letter dated May 14, 2012, OWCP advised appellant of the need to submit a complete
medical report that included a physician’s opinion supported by medical explanation, as to how
the work incident caused or aggravated a medical condition. In a CA-20 (attending physician’s
report) dated June 8, 2012, Dr. Patel provided a history that appellant hurt her chest while trying
to open a bathroom door and diagnosed chest pain.3 He again checked a box “yes” on causal
relationship with employment.
By decision dated June 14, 2012, OWCP denied the claim for compensation. It found the
incident occurred as alleged, but the medical evidence was insufficient to establish the claim.
On July 6, 2012 appellant requested reconsideration of the claim. She stated that she had
pulled a muscle that was still painful. As to medical evidence, appellant submitted narrative
reports dated April 24, May 4 and 18, June 8 and 22, 2012. The April 24, 2012 report stated that
appellant’s chief complaint was that she hurt the left side of the anterior lower chest while trying
to open a bathroom door at work. Dr. Patel provided results on examination and diagnosed
atypical chest pain. In the June 22, 2012 report, Dr. Patel also diagnosed crush injury of the left
chest wall.
In a decision dated October 4, 2012, OWCP found that the application for reconsideration
was insufficient to warrant merit review of the claim for compensation.
LEGAL PRECEDENT -- ISSUE 1
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
3

The report is difficult to read with respect to the diagnosis. The ICD-9 (international classification of diseases,
ninth revision) code provided was 786.59, which is “other chest pain.”
4

5 U.S.C. § 8102(a).

2

commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.7
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
Rationalized medical opinion evidence is medical evidence that includes a physician’s
opinion that is based on a complete factual and medical background, of reasonable medical
certainty and supported by medical rationale explaining the nature of the relationship between
the diagnosed condition and the specific employment factors identified by the claimant. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.10
ANALYSIS -- ISSUE 1
In the present case OWCP accepted that an incident occurred as alleged on
April 23, 2012, but the issue is whether the medical evidence is sufficient to establish causal
relationship between a diagnosed condition and the employment incident. To constitute
rationalized medical evidence, there must be a complete background, a firm diagnosis and an
opinion on causal relationship that is supported by medical rationale. Dr. Patel provides only a
brief history in form reports that appellant was trying to open a door, without providing any

5

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

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (July 2000).

9

Id.

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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additional detail.11 The diagnosis was atypical chest pain, without further explanation. In
addition, the opinion on causal relationship consisted of checking a box “yes” as to causal
relationship with employment.
The Board has held that when a physician’s opinion consists of only the checking of a
box, without further explanation or detail, it is of diminished probative value.12 Dr. Patel did not
provide any medical rationale to support his opinion on causal relationship. He continued to
submit notes indicating that appellant was disabled, but he did not provide a rationalized medical
opinion, based on a complete background, on causal relationship between a diagnosed condition
and the April 23, 2012 employment incident.
It is appellant’s burden of proof to submit the necessary medical evidence to establish the
claim. She was advised of the need to submit probative medical evidence in the May 14, 2012
OWCP letter. For the reasons noted above, appellant did not meet her burden in this case.
On appeal, appellant asserts that she did suffer a painful injury at work. The issue,
however, is a medical issue and an employment injury must be established by probative medical
evidence. The evidence of record is not sufficient to establish an employment injury. Appellant
may submit new evidence or argument with a written application 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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”14 Section
10.608(b) states that any application for review that does not meet at least one of the

11

The Board notes that where an employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003). The period for
which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP. See 20 C.F.R. § 10.300(c). The record is silent as to whether OWCP paid for the cost of
appellant’s examination or treatment for the period noted on the form.
12

M.F., Docket No. 12-1501 (issued December 11, 2012); Gary J. Watling, 52 ECAB 278 (2001).

13

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
14

20 C.F.R. § 10.606(b)(2).

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requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.15
ANALYSIS -- ISSUE 2
Appellant requested reconsideration and stated that she was still in pain and had pulled a
muscle at work. The application for reconsideration did not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP.
The underlying issue in the case was a medical issue as to causal relationship between a
medical condition and the April 23, 2012 employment incident. While appellant does not have
to meet her burden of proof to require OWCP to reopen the claim, she must submit relevant and
pertinent evidence not previously considered by OWCP. The narrative reports from Dr. Patel
were not previously considered, but they do not provide any new and relevant evidence on the
medical issue presented. Dr. Patel did not provide any additional history of injury or provide any
new evidence on causal relationship. The June 22, 2012 report contained a new diagnosis of a
crush injury, but without any additional explanation as to its relationship with the April 23, 2012
employment incident, it is not new and relevant evidence.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered by OWCP.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
April 23, 2012. The Board further finds that OWCP properly denied appellant’s application for
reconsideration with merit review of the claim for compensation.

15

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 4 and June 14, 2012 are affirmed.
Issued: March 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BUREAU OF CUSTOMS & BORDER
PROTECTION, El Paso, TX, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-141
Issued: August 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 20, 2008 appellant, through counsel, filed a timely appeal from a
February 13, 2008 decision of the Office of Workers’ Compensation Programs and a
September 23, 2008 decision of an Office hearing representative denying his hearing loss claim.
Pursuant to 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 established that he sustained hearing loss on June 22, 2004
in the performance of duty as alleged. On appeal, appellant’s counsel contends that the medical
reports of the second opinion physician and the impartial medical examiner’s report should be
excluded because he, counsel, was not properly notified of the examinations.

FACTUAL HISTORY
On July 18, 2004 appellant, then a 49-year-old immigration inspector, filed a traumatic
injury claim (Form CA-1) claiming that he experienced buzzing in both ears and diminished
hearing during a weapons qualification course on June 22, 2004. He stated that he notified his
instructor after the first practice training course and requested replacement of his hearing
protection. Appellant continued the course in order to qualify.1
On July 29, 2004 the Office notified appellant of the deficiencies in his claim and
requested that he provide additional information.
By decision dated September 2, 2004, the Office denied the claim. It found that the work
event occurred as alleged but that appellant did not submit medical evidence containing a
causally related diagnosis.
By signed letter dated February 15, 2005, appellant authorized counsel to represent him.
On August 31, 2005 appellant, through counsel, filed a request for reconsideration. He
submitted medical reports dated July 6 and August 11, 2005 from Dr. Gary Nañez, a Boardcertified otolaryngologist, who diagnosed mild sensorineural hearing loss and opined that the
hearing loss was very likely a result of acoustic trauma following an event on the firing range.
By decision dated November 17, 2005, the Office found that appellant submitted
sufficient medical evidence to require further development including a second opinion
evaluation.
In a December 6, 2005 letter, appellant’s counsel requested that the Office provide him
with details regarding appellant’s second opinion examination.
On December 22, 2005 the Office referred appellant along with a statement of accepted
facts to Dr. Twana L. Sparks, a Board-certified otolaryngologist, for a second opinion evaluation.
Dr. Sparks reviewed appellant’s history and opined that his noise exposure was not sufficient to
cause the loss exhibited by pure tone. She diagnosed functional hearing loss but indicated that
the loss was not due to noise exposure encountered during appellant’s federal civilian
employment. Dr. Sparks also stated that the audiological results were unreliable and, while they
suggested a functional hearing loss, calculations could not be based on the results.
The Office subsequently referred appellant to Matthew H. Lyon, an audiologist, for
additional testing. On February 6, 2006 Mr. Lyon performed auditory brainstem response and
otoacoustic emission tests. He stated that both otoacoustic emissions and brainstem auditory
responses were present and within normal limits. Mr. Lyon opined that the test results indicated
normal auditory function and that appellant’s hearing was within normal limits bilaterally.

1

The Board notes that appellant also filed a traumatic injury claim alleging hearing loss on October 17, 2003
during a separate weapons qualification. This claim is not at issue in the present case.

2

In a February 20, 2006 medical report, Jonni McClure, an audiologist, stated that the
audiological results performed on December 22, 2005 showed pure tone averages that were
inconsistent with speech recognition thresholds and speech audiometry showing hearing within
normal limits. Appellant gave half spondee responses, which suggested functional loss. Due to
the inconsistencies, Ms. McClure recommended the February 6, 2006 auditory brainstem
response and otoacoustic emission testing, which showed hearing within normal limits
bilaterally. She opined that, with the inconsistent evidence, it was impossible to determine the
extent of appellant’s hearing. However, Ms. McClure stated that the objective evidence points to
hearing within normal limits and there was no evidence of damage due to acoustic injury.
The Office determined that a conflict of medical opinion existed and referred appellant
along with a statement of accepted facts to Dr. Marc T. Taylor, a Board-certified
otolaryngologist, on July 19, 2007 for an impartial medical examination.2
In a letter dated June 1, 2007, appellant’s counsel stated that he was notified by an Office
e-mail dated May 31, 2006 that appellant was referred for a second opinion evaluation and
requested copies of the statement of accepted facts, questions posted to the physician and any
Office medical adviser reviews of the December 22, 2005 and February 6, 2006 evaluations.
In a July 19, 2007 medical report, Dr. Taylor reported that audiometric testing was
performed demonstrating a hearing level of 30 to 40 decibels at all frequencies. A copy of the
audiological evaluation was not included. Dr. Taylor noted that there were some inconsistencies
but the reliability of the tests was fair. Physical examination did not reveal any abnormalities of
the head and neck. Tympanic membranes were intact bilaterally and appellant was capable of
carrying on the examination while he spoke in a normal tone. Dr. Taylor opined that there was
no objective evidence of any hearing loss as a result of the June 22, 2004 reported event at the
firing range. He stated that appellant’s reported history was significantly different than the
documented history in his medical records. Appellant denied any prior problems or treatment for
hearing even though records documented an otolaryngology evaluation on October 24, 2003.
Further, Dr. Taylor stated the historical test results were inconsistent and varied from one test to
another on the same date. He opined that the objective tests performed February 6, 2006
documented normal hearing results that were compatible with the results of the speech reception
threshold testing in all of the audiological evaluations.
By letter dated July 31, 2007, appellant’s counsel stated that it was his understanding that
appellant attended a referee evaluation on July 19, 2007 with Dr. Taylor and requested a copy of
the medical report, a revised statement of accepted facts and any questions posed to the doctor.
The Office referred appellant’s case to Dr. R. Meador, an Office medical adviser. In a
December 1, 2007 report, Dr. Meador referred to Dr. Taylor’s medical report finding that there
was no probative evidence of hearing loss related to appellant’s federal employment.

2

The Board notes that in determining the existence of a conflict of medical evidence, the Office stated that the
conflict existed between Dr. Sparks and Dr. Lyon. As Mr. Lyon is not a physician, it appears as though the Office
intended to find a conflict of medical opinion between Dr. Sparks and Dr. Nañez.

3

By decision dated February 13, 2008, the Office denied the claim based on Dr. Taylor’s
and Dr. Meador’s findings that there was no objective evidence of hearing loss related to noise
exposure during appellant’s employment.
On March 14, 2008 appellant, through counsel, filed a request for an oral hearing before
an Office hearing representative. A telephonic hearing took place on July 8, 2008.
In a July 9, 2008 letter, appellant’s counsel contended that the Office should be precluded
from considering the second opinion and impartial medical examiner’s reports because he was
not notified of these evaluations. Along with this letter, he submitted a copy of the change of
address notification dated July 21, 2005.3
By decision dated September 23, 2008, the Office hearing representative affirmed the
February 13, 2008 decision on the grounds that the weight of the medical evidence rested with
Dr. Taylor, who performed a thorough examination, obtained certified audiological testing and
determined that appellant did not have any evidence of hearing loss related to the alleged
exposure. The hearing representative also deemed the fact that the results and notices of the
second opinion and impartial medical examinations were mailed to counsel’s former address was
harmless error because the record contained multiple written correspondences from counsel
indicating that he was aware of these examinations.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act4
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,5 including that he is an “employee” within the meaning of
the Act6 and that he filed his claim within the applicable time limitation.7 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
3

The record reveals that the notices of examinations were sent to the address initially provided by appellant’s
counsel and not to the address listed in the July 21, 2005 letter.
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
6

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
7

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
8

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.9 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.10
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.12
The Office procedure manual provides that, once it has been determined that an impartial
medical examination is necessary in order to resolve a conflict, the Office’s medical management
assistant will contact the physician directly and make the appointment for examination, then
notify the claimant and his representative of the existence of a conflict; the name and address of
the physician; any request(s) to forward x-rays, electrocardiograms, etc. to the specialist; copies
of Forms SF-1012, SF-1012A and instructional Form CA-77 to claim travel expenses; and a
warning that benefits may be suspended for a failure to report for examination.13
Office regulations provide that a properly appointed representative who is recognized by
the Office may make a request or give direction to the Office regarding the claims process,
including a hearing. This authority includes presenting or eliciting evidence, making arguments
on the facts or the law and obtaining information from the case file, to the same extent as the
claimant.14 Any notice requirement contained in the regulations or the Act is fully satisfied if
served on the representative and has the same force and effect as if sent to the claimant.15 The
Board has held that decisions under the Act are not deemed to have been properly issued unless
both appellant and the authorized representative have been sent copies of the decision.16

9

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

10

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064 (1989).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(d) (May 2003).

14

20 C.F.R. § 10.700(c).

15

Id. See also Sara K. Pearce, 51 ECAB 517 (2000).

16

See Travis L. Chambers, 55 ECAB 138 (2003). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Communications, Chapter 2.300.4(e) (February 2000).

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ANALYSIS
The issue is whether appellant established that he sustained hearing loss on June 22, 2004
due to noise exposure during his weapons qualification course. The Board finds this case is not
in posture for decision.
The Office determined that a conflict of medical opinion existed between Dr. Nañez, the
treating physician, and the second opinion physician, Dr. Sparks, regarding whether appellant
sustained employment-related hearing loss. It referred appellant to an impartial medical
examiner, Dr. Taylor, a Board-certified otolaryngologist, for a resolution of the conflict.17
In a July 19, 2007 medical report, Dr. Taylor opined that there was no objective evidence
of any hearing loss related to the June 22, 2004 work incident at the firing range. He cited to the
February 6, 2006 documented normal hearing results, which he stated were compatible with the
results of the speech reception threshold testing in all of the audiological evaluations. Dr. Taylor
also stated that audiometric testing was performed demonstrating a hearing level of 30 to 40
decibels at all frequencies, but, failed to include the audiometric results.
On appeal, appellant’s counsel contends that he did not receive notice of Dr. Sparks’
second opinion evaluation or Dr. Taylor’s impartial medical examination.18 Counsel alleges that
he notified the Office of a change of address on July 21, 2005. He resubmitted a copy of this
notification with his July 9, 2008 letter. Although the July 21, 2005 change of address letter
notification was not previously contained in the record, by virtue of the mailbox rule it is
presumed to have been received by the Office.19 The record reveals that all correspondence and
notifications were sent to counsel’s prior address and not the address contained in the July 21,
2005 letter. Therefore, he was not properly notified of the second opinion and impartial medical
examinations.20
However, where a representative had actual knowledge of examinations, the Board has
held that lack of proper notification is harmless error.21 By letter dated December 6 2005,
counsel stated that appellant was notified of a second opinion examination and requested
additional information. This letter demonstrates that counsel had actual knowledge of the
December 22, 2005 medical examination. Further, counsel was apprised of the forthcoming

17

L.R., 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

18

Appellant authorized counsel to act as his representative by letter dated February 15, 2005.

19

In absence of evidence to the contrary, a letter properly addressed and mailed in the due course of business,
such as in the course of appellant’s counsel’s practice, is presumed to have arrived at the mailing address in due
course. The Board has held that the presumption of receipt under the mailbox rule must apply equally to claimants
and the Office alike. Larry L. Hill, 42 ECAB 596 (1991).
20

See Donald J. Knight, 47 ECAB 706 (1996); Henry J. Smith, Jr., 43 ECAB 524 (1992); reaff’d on recon., 43
ECAB 892 (1992).
21

See David Alan Patrick, 46 ECAB 1020 (1995).

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second opinion evaluation in the November 17, 2005 decision.22 Thus, appellant was not denied
the opportunity for counsel’s assistance in exercising his rights under section 10.320.23 The
Board finds that Office’s failure to provide proper notice of the December 22, 2005 second
opinion examination is harmless error.
With respect to the July 19, 2007 impartial medical evaluation by Dr. Taylor, the record
reveals that counsel did not have actual knowledge of the nature of the evaluation, nor was he
provided with the specifics of the conflict or questions posed to the doctor. In a June 1, 2007
letter, counsel stated that he was not notified that appellant was referred for a second opinion
evaluation. He requested that the Office provide copies of the statement of accepted facts and
the questions posed to the doctor. Further, in a July 31, 2007 letter, counsel again requested a
copy of the questions posed to Dr. Taylor. These letters show that he was not actually aware of
the nature of the July 19, 2007 examination as an impartial medical examination, nor did he have
access to the details regarding the conflict or the questions posed to the doctor.
In the case of Henry J. Smith,24 the Board held that when the Office does not notify a
claimant of a physician’s status as an impartial medical examiner, that physician may not serve
as the impartial medical examiner in that case. These procedures are intended to assure a
claimant’s knowledge that a physician is an impartial medical examiner so that he may then
choose to exercise the procedural right to participate in the selection of the doctor.25 The Board
finds that, in the instant case, counsel was not properly notified of the July 19, 2007 impartial
medical examination; nor did he have actual knowledge of the nature of the impartial medical
examination or the existing conflict. The Board notes that it is of no relevance that appellant was
properly notified of the impartial medical examination because the failure to notify counsel
denied appellant the opportunity for assistance in pursuing his procedural rights.26 Therefore, the
Board finds that Dr. Taylor’s report cannot be given the special weight afforded an impartial
medical examiner and is insufficient to resolve the conflict of medical opinion.27
The Board notes counsel’s contention that Dr. Taylor’s medical report should be
excluded from the record. However, lack of proper notification is not a reason for exclusion of
report. Exclusion of a medical report obtained from an impartial medical specialist is required
only under specific circumstances. Board precedent distinguishes situations in which the Office
22

See id. (Where the Board held that actual knowledge of an impartial medical examination was evidence from
the Office’s prior decision finding a conflict of medical opinion).
23

Section 10.320 provides that an employee may have a qualified physician, paid by him or her, present at a
second opinion examination. 20 C.F.R. § 10.320.
24

Supra note 20.

25

See David Alan Patrick, supra note 21.

26

See Sara K. Pearce, supra note 15. See also J.L., Docket No. 08-811 (issued August 21, 2008) (where the
Board held that, although appellant was notified on an impartial medical examination, appellant’s counsel was not
properly notified of the examination and, therefore, appellant was denied an opportunity to participate in the
selection process).
27

See Henry J. Smith, supra note 20.

7

or the employing establishment may have influenced the opinion of the impartial medical
specialist from circumstances in which the evidence establishes that the medical report is
defective for other procedural reasons.28 Because the instant case involves the procedural issue
of notification and there is no indication of any undue influence by the Office or the employing
establishment, Dr. Taylor’s medical report should not be excluded from the record. The Board
further notes that although lack of proper notification is not sufficient to exclude Dr. Taylor’s
report from the record, the report is of diminished probative value because the doctor failed to
include the required certified audiogram with the report, as provided by Office procedures and
adopted by this Board via precedent.29
The Board finds that appellant’s counsel was not properly notified of Dr. Taylor’s
July 19, 2007 impartial medical examination, thereby rending the corresponding medical report
insufficient to resolve the conflict of medical opinion. On remand, the Office should refer
appellant for another impartial medical examination to resolve the existing conflict of medical
evidence.
CONCLUSION
The Board finds this case is not in posture for decision regarding whether appellant
sustained hearing loss due on June 22, 2004 in the performance of duty.

28

See Terrance R. Stath, 45 ECAB 412 (1994).

29

Office procedures set forth requirements for the type of medical evidence used in evaluating hearing loss.
These include that the employee undergo both audiometric and otologic examination; that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately certified
audiologist; that the otologic examination be performed by an otolaryngologist certified or eligible for certification
by the American Academy of Otolarynology; that the audiometric and otologic examination be performed by
different individuals as a method of evaluating the reliability of the findings; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the American Speech
and Hearing Association; that the audiometric test results include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores; and that the otolaryngologist’s report
include: date and hour of examination, date and hour of employee’s last exposure to loud noise, a rationalized
medical opinion regarding the relation of the hearing loss to the employment-related noise exposure and a statement
of the reliability of the tests. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical
Reports, Chapter 3.600.8(a) (September 1995); Louis M. Villanueva, 54 ECAB 666 (2003). See also J.H., Docket
No. 06-2081 (issued April 17, 2007) (where the Board held a medical report was of diminished probative value
because it did not include a certified audiogram and was not signed).

8

ORDER
IT IS HEREBY ORDERED THAT the September 23 and February 13, 2008 decisions
of the Office of Workers’ Compensations Programs are set aside and the case is remanded for
further proceedings not inconsistent with this decision.
Issued: August 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN ANTONIO MILITARY MEDICAL
CENTER, Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 21-0816
Issued: January 12, 2022

Case Submitted on the Record

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

JURISDICTION
On May 6, 2021 appellant filed a timely appeal from a March 23, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision dated October 27, 2020 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 23, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 24, 2014 appellant, then a 46-year-old miscellaneous administrative and
program worker, filed a traumatic injury claim (Form CA-1) alleging that on November 21, 2014
she sustained tail bone and buttock injuries when she slipped and fell on a wet surface while
walking down an exit ramp in the performance of duty. She stopped work on November 24, 2014.
OWCP accepted the claim for lumbar sprain, and subsequently expanded the acceptance of the
claim to include lumbar spondylolysis, other lumbar spondylosis with radiculopathy, and
sacroiliitis.
On May 15, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a report dated June 22, 2017, Dr. Daniel C. Valdez, a Board-certified orthopedic
surgeon, related that appellant had three percent permanent impairment of the right lower
extremity and three percent permanent impairment of the left lower extremity due to sensory deficit
of the L5 peripheral nerve.
In a report dated September 1, 2017, Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon, acting as OWCP’s district medical adviser (DMA) concurred with Dr. Valdez’ rating of
appellant’s permanent impairment of the lower extremities.
The record reflects that OWCP granted appellant a schedule award on December 8, 2017
for three percent permanent impairment of the right lower extremity, and three percent permanent
impairment of the left lower extremity. The period of the award ran from June 23 through
October 21, 2017.
On May 22, 2019 appellant filed a Form CA-7 requesting an additional schedule award.
In a May 23, 2019 report, Dr. Eric B. Hintz, a neurosurgeon, indicated that appellant’s
diagnoses consisted of lumbar ligament sprain and lumbar spondylosis with radiculopathy. The
date of appellant’s maximum medical improvement (MMI) was listed as April 8, 2019. Using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition (July/August 2009)(The Guides Newsletter).3 Dr. Hintz
assigned zero percent permanent impairment for lumbar sprain, two percent permanent impairment
for left L5 spondylosis with radiculopathy, and two percent right lower extremity permanent
impairment for right L5 spondylosis with radiculopathy. Using the Combined Values Chart on
page 604, Dr. Hintz found four percent combined lower extremity permanent impairment for L5
spondylosis with radiculopathy left greater than right.

3

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

2

OWCP referred appellant’s medical record to Dr. Harris, OWCP’s DMA. In a report dated
June 10, 2019, Dr. Harris concluded that appellant had zero percent right lower extremity
permanent impairment and two percent left lower extremity permanent impairment.
On July 5, 2019 Dr. Glass reviewed and concurred with the DMA’s June 10, 2019
impairment rating. On September 19, 2019 OWCP received an undated acknowledgement from
Dr. Hintz noting that he had reviewed and concurred with the DMA’s June 10, 2019 impairment
rating.
On July 29, 2020 OWCP referred appellant to Dr. Charles W. Kennedy Jr., a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine appellant’s entitlement
to an additional schedule award. In a report dated August 24, 2020, Dr. Kennedy related that,
pursuant to The Guides Newsletter, appellant had zero percent permanent impairment of the lower
extremities as she had no motor or sensory deficits from her accepted lumbar conditions.
On October 9, 2020 OWCP referred appellant’s medical record to the DMA, Dr. Harris,
for review of the medical evidence regarding appellant’s additional schedule award claim. In a
report dated October 14, 2020, Dr. Harris noted that appellant underwent posterior lumbar
interbody L5-S1 fusion on November 19, 2019. The DMA noted that Dr. Kennedy, in his
August 24, 2020 evaluation, observed no lower extremity neurologic deficits consistent with
lumbar radiculopathy. Using Table 16-11 on page 33 of the A.M.A., Guides, and Table 2 in The
Guides Newsletter, to calculate appellant’s permanent impairment, he found zero percent
permanent impairment due to the lack of neurologic deficits in the lower extremities consistent
with lumbar radiculopathy. The DMA further noted that the range of motion methodology was
not applicable and indicated that appellant had reached MMI on November 24, 2020. Dr. Harris
concurred with Dr. Kennedy’s assessment of no lower extremity deficits consistent with lumbar
radiculopathy, resulting in a zero percent permanent impairment rating.
By decision dated October 27, 2020, OWCP denied appellant’s increased schedule award
claim, finding that appellant had zero percent bilateral lower extremity permanent impairment with
an August 24, 2020 date of (MMI).
On February 9, 2021 appellant requested reconsideration. OWCP subsequently received a
January 9, 2020 lumbar x-ray and March 19, 2020 computerized tomography (CT) scan.
In reports dated January 9, February 10, and September 14, 2020, Dr. Hintz summarized
examination findings and diagnosed lumbosacral spondylolisthesis. On examination he reported
a lumbosacral incision, healing well, and intact sensation to light touch from the knee to foot
bilaterally. In his September 14, 2020 report, Dr. Hintz related slightly reduced pinprick sensation
relative to contralateral in the skin overlying her right medial shin and medial malleolus.
In a September 17, 2020 report, Dr. John Patrick McCallin, a Board-certified physiatrist,
diagnosed sacroiliitis, chronic post-procedural pain, lumbosacral radiculopathy, and sacroccygeal
disorders.
On October 14, 2020 Dr. Hintz requested an electromyogram/nerve conduction velocity
(EMG/NCV) study for a provisional diagnosis of L5 radiculopathy.
By decision dated March 23, 2021, OWCP denied appellant’s request for reconsideration.
3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
In her February 9, 2021 request for reconsideration, appellant did not contend that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument not
previously considered by OWCP. Thus, she was not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 9
The underlying issue in this case is whether appellant has lower extremity sensory or motor
deficit, due to her accepted lumbar conditions, which is ratable under The Guides Newsletter. In
4

5 U.S.C. § 8128(a); see A.M., Docket No. 20-1417 (issued July 30, 2021); J.D., Docket No. 19-1757 (issued
April 15, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see A.M., id.; J.D., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3,
2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4(b).
7

Id. at § 10.608(a); see also A.M., supra note 4; M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b).

9

See D.C., Docket No. 20-0916 (issued September 14, 2021); C.S., Docket No. 19-0851 (issued November 18,
2019); J.B., Docket No. 17-0628 (issued June 28, 2017).

4

support of her reconsideration request, appellant submitted a January 9, 2020 lumbar x-ray,
March 19, 2020 CT scan, and medical reports dated January 9, February 10, September 14, and
October 14, 2020 from Dr. Hintz, and a September 17, 2020 report by Dr. McCallin. Dr. Hintz,
in his January 9, February 10, September 14 and October 14, 2020 reports, did not relate
examination findings of any lower extremity deficits due to motor weakness or sensory loss, which
he indicated would be ratable under The Guides Newsletter. In his September 14, 2020 report,
Dr. Hintz related slightly reduced pinprick sensation relative to contralateral in the skin overlying
her right medial shin and medial malleolus. He did not, however, indicate that this reduced
sensation was caused by the accepted conditions, and was ratable under The Guides Newsletter.
In his September 17, 2020 report, Dr. McCallin provided no physical examination findings. The
new evidence submitted is not relevant and pertinent to the underlying issue of appellant’s claim,
as it does not contain new evidence addressing the current extent of her employment-related
permanent impairment.10 Thus, appellant was not entitled to a review of the merits of her claim
based on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the three requirements
under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

D.C., id; see L.S., Docket No. 19-0592 (issued September 6, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sulphur, LA, Employer
__________________________________________

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

Docket No. 07-1673
Issued: January 3, 2008

Case Submitted on the Record

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

JURISDICTION
On June 5, 2007 appellant filed a timely appeal from a May 16, 2007 merit decision of
the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and that she was at fault in its creation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $2,138.82 for the
period February 2 to March 17, 2007 because she returned to a full-time position with the
employing establishment but continued to receive compensation for partial disability; and
(2) whether the Office properly found that she was at fault in the creation of the overpayment.
FACTUAL HISTORY
On April 4, 2006 appellant, then a 44-year-old clerk, filed a claim alleging that she
sustained an injury to her right back and right leg on April 3, 2006 while closing a gate. The
Office accepted her claim for a sprain of the lower back. Appellant stopped work on April 4,

2006 and returned to part-time limited-duty employment on August 28, 2006. By letter dated
September 18, 2006, the Office notified her that it was reducing her compensation based on her
actual earnings as a part-time clerk effective September 3, 2006. The Office requested that she
informed it if she received an increase in pay to avoid an overpayment of compensation.
Dr. James D. Perry, a Board-certified orthopedic surgeon and appellant’s attending
physician, released her to resume her regular full-time employment on December 4, 2006. She
did not return to work. Appellant informed the Office on December 5, 2006 that she was unable
to work due to a nonemployment-related illness and had filed for medical retirement.
On February 2, 2007 appellant accepted a full-time limited-duty position as a
distribution/window clerk with the employing establishment at the same grade and step as her
date-of-injury position. A time analysis form from the employing establishment indicated that
after February 2, 2007 appellant used a combination of work hours, annual leave and leave
without pay. In a telephone call on March 15, 2007, appellant informed a claims examiner that
she signed the February 2, 2007 job offer and clocked in to work but did not work due to a
nonemployment-related medical condition. She applied for disability retirement. Appellant
saved every compensation check she received from the Office after January 2007.
In an electronic mail message dated March 15, 2007, the employing establishment related
that appellant came in to work on certain days to provide assistance until her retirement. She did
not work over four hours when she came to work.
The Office paid appellant compensation for partial disability in the amount of $2,138.82
for the period February 2 to March 17, 2007. On April 16, 2007 the Office notified her of its
preliminary determination that she received an overpayment of compensation in the amount of
$2,138.82 because she returned to a full-time position with the employing establishment on
February 2, 2007 but continued to receive compensation from the Office for the period
February 2 to March 17, 2007. The Office explained that it calculated the overpayment by
dividing her compensation every four weeks for partial disability by 28 days to determine the
amount it paid her per day and then multiplying this amount by the 44 days from February 2 to
March 17, 2007. The Office further informed appellant of its preliminary determination that she
was at fault in the creation of the overpayment because she accepted a payment that she knew or
reasonably should have known was incorrect. The Office additionally advised her that, within
30 days of the letter, she could request a telephone conference, a final decision based on the
written evidence or a prerecoupment hearing. The Office requested that appellant submit an
overpayment recovery questionnaire and supporting financial information.
On April 26, 2007 appellant maintained that her physician released her to return to
full-time employment with restrictions on November 30, 2006. Due to a personal illness, she
was unable to work beginning December 4, 2006. Appellant stated:
“It was suggested that I file for temporary disability retirement due to this illness.
I brought all the documentation, duty status reports and [doctor’s] excuses to my
supervisor and talked with them explaining the entire situation.

2

“On December 28, 2006 I received another workers’ compensation check. I knew
I should hold on to this check, as the [Office] would realize an error was made.
On January 20, 2007 I received another workers’ compensation check. Again, I
held on to the check.”
Appellant notified the employing establishment that she continued to receive checks from
the Office and “informed them that they needed to get me off of workers[‘] compensation
because I was off work on [leave without pay].” The employing establishment requested that she
sign a job offer so that she could get off of workers’ compensation. Appellant signed the job
offer but noted that she could not return to work because she had filed for disability retirement.
She stated: “When I informed my [u]nion [s]teward about the workers’ compensation checks I
had been receiving, he told me not to worry about them and that I was entitled to keep them as
management failed to properly follow through with their responsibility and that I did all that was
required of me.”
Appellant received another workers’ compensation check on
February 17, 2007. She notified her supervisor. On March 15, 2007 an Office claims examiner
told appellant on the telephone that she would receive another workers’ compensation check
shortly. The claims examiner informed her that she could keep the check as the employing
establishment “did not follow through with their procedures.” Appellant told the claims
examiner that she still had the checks in her possession. On April 3, 2007 her son required
emergency medical treatment, some of which was not covered by insurance. Appellant related
that she had kept the checks she received from the Office until the claims examiner told her she
could keep them. She maintained that it would cause extreme hardship if she had to repay the
overpayment. Appellant submitted a copy of medical bills relevant to her son’s medical
treatment.
On May 5, 2007 appellant requested waiver of the overpayment and a decision based on
the written evidence. She did not challenge fact or amount of the overpayment. Appellant
submitted a completed overpayment recovery questionnaire without any supporting financial
documentation. By decision dated May 16, 2007, the Office finalized its finding that she
received an overpayment of $2,138.82 for the period February 2 to March 17, 2007 because she
received compensation for partial disability after she returned to work full time. The Office
further finalized its finding that she was at fault in the creation of the overpayment and thus not
entitled to waiver. The Office requested that she repay the overpayment by forwarding a check
for the full amount.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act1 defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.2 The Office’s regulations state in pertinent part:
“compensation for wage loss due to disability is available only for any periods during which an

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8116(a).

3

employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.”3
ANALYSIS -- ISSUE 1
Appellant sustained low back strain on April 4, 2006. She returned to part-time limitedduty employment on August 28, 2006. On December 4, 2006 Dr. Perry released appellant to
resume full-time employment with restrictions. She did not resume full-time work, however, due
to a personal illness. On February 2, 2007 appellant accepted a full-time position with the
employing establishment at the same grade and step as her date-of-injury position. She worked
only occasionally after accepting the position due to her nonemployment-related condition.
Appellant used a combination of work hours, leave and leave without pay during this period.
The Office paid her compensation for partial disability in the amount of $2,138.82 from
February 2 to March 17, 2007. As appellant had accepted and returned to a full-time position at
the employing establishment, she was not entitled to compensation for partial disability.
Accordingly, she received an overpayment of compensation. The Office calculated the amount it
paid appellant from February 2, to March 17, 2007 by dividing the compensation she received
for partial disability every 28 days by 44, the number of days during the period, to find an
overpayment of $2,138.82. Appellant has not challenged either the fact or amount of the
overpayment. The Board finds that appellant received an overpayment of $2,138.82 for the
period February 2 to March 17, 2007.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act4 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations5
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(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.”

3

20 C.F.R. § 10.500.

4

5 U.S.C. § 8129(b).

5

20 C.F.R. § 10.433.

4

ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted payments which she knew or should have known were incorrect. The Office must
thus establish that, at the time she received the compensation checks in question, she knew or
should have know that the payment was incorrect. Appellant informed the Office on March 15,
2007 that she had accepted a full-time job with the employing establishment on
February 2, 2007. She “clocked in” to work on February 2, 2007 but did not work full time due
to a nonemployment-related condition. Appellant related in correspondence to the Office dated
April 26, 2007 that she continued to receive workers’ compensation checks which she knew she
should hold on to “as the [Office] would realize an error was made.” She saved every workers’
compensation check that she received after January 2007. Appellant wanted to stop receiving
workers’ compensation so she signed the February 2, 2007 job offer; however, she received
another workers’ compensation check on February 17, 2007. On March 15, 2007 a claims
examiner informed her that she would receive another check shortly. Appellant thus
acknowledged that she knew when she received the workers’ compensation check covering the
period February 2 to March 17, 2007 that she was not entitled to wage-loss compensation for that
period. Thus, she is not without fault in the creation of the overpayment and waiver of the
overpayment is not possible.
Appellant asserted that her union steward and an Office claims examiner told her that she
could keep the check because it was the employing establishment’s mistake. The finding of
fault, however, is based on appellant’s acceptance of payments that she knew or should have
known to be incorrect. The fact that the Office was negligent in issuing payments to her does not
relieve her of fault in accepting the incorrect payments.6
On appeal, appellant argues that she is unable to repay the overpayment due to
unexpected medical expenses. As discussed above, however, waiver of the overpayment is
precluded as she is at fault in the creation of the overpayment.7 Additionally, the Board notes
that it does not have jurisdiction to review the Office’s recovery of the overpayment. The
Board’s jurisdiction is limited to review those cases where the Office seeks recovery from
continuing compensation under the Act.8
CONCLUSION
The Board finds that appellant received an overpayment of $2,138.82 for the period
February 2 to March 17, 2007 because she returned to a full-time position with the employing
establishment but continued to receive compensation for partial disability. The Board further
finds that she was at fault in the creation of the overpayment.

6

See Williams E. McCarty, 54 ECAB 525 (2003).

7

See 5 U.S.C. § 8129(b).

8

20 C.F.R. § 10.441(a); see also Judith A. Cariddo, 55 ECAB 348 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2007 is affirmed.
Issued: January 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, BAY CITY ANNEX,
Manhattan Bench, CA, Employer
__________________________________________

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

Docket No. 11-1429
Issued: January 6, 2012

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 May 23, 20111 appellant filed a timely appeal of a November 26, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her emotional condition
claim. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on November 26, 2010, the 180-day computation begins on November 27, 2010. One hundred
and eighty days from November 27, 2010 was May 25, 2011. Since using June 1, 2011, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is May 23, 2011, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
emotional condition in the performance of duty due to factors of her federal employment.
On appeal, appellant alleged that the evidence of record established that her emotional
condition occurred in the performance of duty.
FACTUAL HISTORY
On October 6, 2003 appellant, then a 46-year-old clerk, filed an occupational disease
claim, alleging that she developed chest pain and heart palpitations due to harassment by
management. She stated that her light-duty assignment was cancelled, that she had to file a
complaint against a coworker, who was harassing her and that management kept adding duties to
her job assignment. In a form report dated October 6, 2003, Dr. Accis Mitchell, a family
practitioner, diagnosed chest pain and palpitation and recommended stress reduction therapy. He
indicated with a checkmark “yes” that this condition was caused or aggravated by an
employment activity.
The employing establishment responded to appellant’s allegations on October 16, 2003.
It noted that she complained that another employee was harassing her by making comments
about the kind of work she was doing. The employing establishment stated that management
immediately reprimanded the coworker. It advised that appellant’s light-duty position was not
revoked. Appellant failed to provide medical evidence of her work restrictions although
disciplinary action was taken against her. She eventually stopped coming to work and entered a
leave without pay status on June 16, 2003.
The employing establishment requested a medical report supporting appellant’s lightduty assignment by letters dated January 24, 2002 and May 9, 2003. On August 28, 2003 the
employing establishment suspended appellant for seven days beginning September 15, 2003 due
to unsatisfactory job performance through failure to follow instructions in providing medical
documentation. Appellant also received disciplinary letters of warning on March 14, 2001,
January 24 and June 30, 2003 for failure to provide medical documentation.
OWCP requested additional factual and medical evidence in a letter dated
November 13, 2003.
By decision dated March 16, 2004, OWCP denied appellant’s claim finding that she
failed to establish a compensable factor of employment.
On March 23, 2004 appellant requested a review of the written record.
In a letter dated June 21, 2004, the employing establishment stated that appellant’s lightduty assignment was not cancelled due to her complaints about harassment; rather she failed to
provide medical documentation as instructed and utilized sick leave instead. Appellant’s
harassment allegation was not dismissed and management dealt with the employee and no other
problems were reported. The employing establishment stated that she had a nonworked-related

2

knee injury. It reiterated that appellant did not submit any medical evidence regarding her
shortness of breath and chest pain on May 19 to July 2003.
The employing establishment issued a notice of 14-day suspension on December 16,
2003 noting that appellant had not reported to work since June 16, 2003 or provided any medical
documentation. On February 23, 2004 it noted receiving her medical documentation for
osteoarthritis of the right knee and varicose veins and a work restriction of no prolonged
standing. The employing establishment requested additional medical evidence and stated that a
light-duty assignment would be available.
Appellant submitted a letter received on July 2, 2004 contending that her claim for
harassment should have been accepted by OWCP. She alleged that her employing establishment
made false statements regarding the disciplinary actions and administrative error in referencing
her nonwork-related injury.
By decision dated August 30, 2004, OWCP’s hearing representative affirmed the
March 16, 2004 decision.
Appellant requested reconsideration on August 28, 2005. She alleged that the employing
establishment erred in disciplinary actions, improperly dismissed her allegation of harassment
and that her male supervisor, Herbert Belt, sexually harassed her and created a hostile work
environment. Appellant alleged several false and misleading statements. She submitted a
response to a proposed removal, stating that she would return to work within her restrictions. On
September 3, 2004 the employing establishment provided appellant with a notice of separation
effective October 4, 2004.
Appellant submitted notes dated August 3 and September 1, 2004 diagnosing chronic
lumbosacral strain with right radiculopathy, right knee degenerative joint disease and anxiety
disorder with depression. Dr. Howard R. Bass, a Board-certified internist, advised that appellant
was totally disabled.
In a December 1, 2005 decision, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions.
Appellant requested reconsideration on November 12, 2006.
She submitted a
witness statement from Vickie Trotter-Peterson, a coworker, dated August 31, 2005.
Ms. Trotter-Peterson stated that Mr. Belt yelled and screamed at appellant all day. Appellant
submitted statements dated February 18 and November 20, 2004 alleging that Mr. Belt solicited
sexual favors from her, tampered with evidence and instituted claims of unsatisfactory work
performance.
On January 15, 2004 the employing establishment responded, noting that appellant had
submitted a letter alleging sexual harassment and retaliation by Mr. Belt. It stated that, as she did
not sign the letter, it was unable to process the complaint.
Appellant submitted a report dated August 31, 2005 from Dr. Arnold P. Nerenbery, a
clinical psychologist, who diagnosed panic disorder, major depression and anxiety disorder.
Dr. Nerenbery alleged that a witness supported her claim for sexual harassment by Mr. Belt.
3

By decision dated March 2, 2007, OWCP reviewed the merits of appellant’s claim and
denied modification of her prior decisions.
Appellant requested reconsideration on February 12, 2008.
wrongdoing on the part of the employing establishment.

She continued to allege

By decision dated January 29, 2010, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions.
Appellant requested reconsideration on August 10, 2010. She alleged error in the
employing establishment disciplinary actions and in her removal from it.
By decision dated November 26, 2010, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decisions.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus disability
is not covered when it results from an employee’s fear of a reduction-in-force, nor is disability
covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.7
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 FECA.8 Where the evidence
3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

6

Cutler, supra note 3.

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

4

demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS
Appellant alleged an emotional condition as a result of error and abuse in administrative
matters and harassment and discrimination on the part of her manager. OWCP denied her
emotional condition claim on the grounds that she did not establish any compensable
employment factors. The Board must review whether the alleged incidents are established as
compensable factors under FECA.
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Cutler.12 Appellant alleged that she developed an emotional condition
resulting in chest pain and heart palpitations due to harassment by her supervisor and coworkers.
She also attributed her condition to cancellation of her light-duty assignment, erroneous
disciplinary actions by the employing establishment and the continuous addition of duties to her
light-duty assignment.
Appellant claimed sexual harassment by her supervisor, Mr. Belt, who allegedly
requested sexual favors. The Board has held that a claimant must establish a factual basis for her
allegations with probative and reliable evidence.13 Appellant has submitted insufficient evidence
to establish sexual harassment. Dr. Nerenbery described the allegations of a witness, but the
witness statement is not of record. The Board may not accord probative value to a statement
without the opportunity to review it. As noted, in order to establish harassment there must be
evidence that the acts alleged or implicated by the employee did in fact occur.14

9

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
10

Roger Williams, 52 ECAB 468 (2001).

11

Alice M. Washington, 46 ECAB 382 (1994).

12

Supra note 3.

13

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

14

C.S., 58 ECAB 137 (2006).

5

Appellant alleged that a coworker made inappropriate comments about her work that
constituted harassment. The employing establishment stated that she complained about
statements made by a coworker and that the coworker was reprimanded. However, neither
appellant nor the employing establishment provided specific information as to the statements
made. She made a general allegation of inappropriate comments without a sufficient description
of matter alleged. The evidence of record is not sufficient to establish a compensable factor of
employment.15
Appellant submitted a statement from Ms. Trotter-Peterson dated August 31, 2005. She
noted generally that Mr. Belt yelled and screamed at appellant regarding her work duties. This
statement, also did not provide any detail as to what was stated. Ms. Trotter-Peterson did not
address appellant’s allegations of sexual harassment. To the extent appellant is alleging that she
was verbally abused, the Board has generally held that being spoken to in a raised or harsh voice
does not of itself constitute verbal abuse or harassment.16 The Board notes that the fact that a
supervisor may have directed her in a raised tone of voice is insufficient, by itself, to warrant a
finding that his actions amounted to verbal abuse as appellant did not show how a possible loud
or raised voice in directing appellant to perform her duties, would rise to the level of verbal
abuse or otherwise fall within the coverage of FECA.
Appellant has also alleged that the employing establishment improperly issued letters of
warning, suspensions and other disciplinary actions. She also stated that it improperly added
duties to her light-duty position and eliminated her limited-duty position. Allegations that the
employing establishment engaged in improper disciplinary actions and improperly assigned
work17 related to administrative and personnel matters, unrelated to regular and specially
assigned work duties and do not fall within the coverage of FECA. These activities are
administrative functions of the employing establishment and not duties of the employee.18
Appellant has the burden to establish error or abuse in these administrative actions in order to
substantiate a compensable factor of employment. She has not submitted any witness
statements, union documentation or other evidence supporting her allegations and arguments that
the employing establishment erred in issuing discipline or in assigning work duties. For this
reason, the Board finds that appellant has not established a compensable factor in this regard.
The Board finds that appellant has not submitted the necessary supportive factual
statements from witnesses or other sources to establish her alleged employment factors of
harassment, verbal abuse or error in disciplinary or work assignments. For these reasons, the
Board finds that she has failed to meet her burden of proof in establishing an emotional condition
arising in the performance of her federal duties.

15

Peter D. Butt, Jr., 56 ECAB 117 (2004).

16

Id.

17

Donney T. Drennon-Gala, 58 ECAB 469 (2005).

18

Butt, supra note 15.

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § § 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing an
emotional condition arising from her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2012
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
CENTER, Romulus, MI, Employer
__________________________________________

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

Docket No. 09-619
Issued: September 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 18, 2008. 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 sustained an injury in the performance of duty on
October 9, 2007.
FACTUAL HISTORY
On October 11, 2007 appellant, then a 60-year-old small parcel bundle sorter (SPBS)
machine operator, filed a traumatic injury claim (Form CA-1) alleging that on October 9, 2007
she sustained an injury in the performance of duty. She described the injury as “fracture on right
side of thorax.” In a narrative statement, appellant indicated that on October 9, 2007 she reached
with her right arm into a cart and felt a sharp pain in her rib cage and right side.

Appellant submitted an October 10, 2007 x-ray of the thoracic spine, an October 24, 2007
computerized tomography (CT) of the thoracic and lumbar spine, and a November 7, 2007
magnetic resonance imaging (MRI) scan of the lumbar spine. The x-ray showed moderate
degenerative changes to the mid thoracic spine and questionable mild anterior wedging of a mid
thoracic vertebral body. In a report dated August 27, 2007, Dr. Richard Dryer, an internist, noted
appellant had lumbar surgery on October 16, 2006.
By decision dated December 18, 2007, the Office denied appellant claim for
compensation. It found that the medical evidence was insufficient to meet the established claim.
Appellant requested a telephonic hearing, which was held on September 11, 2008. In a
report dated August 1, 2008, Dr. Dryer stated that in a letter to him, appellant had reported an
October 9, 2007 incident where she bent over a cart, picked up mail with both hands and felt a
sharp pain on her right side. He stated, “The history in the medical record is different.”
Dr. Dryer referred to an emergency room report stating that appellant was reaching to the floor to
pick up mail and Dr. Saroj Chowdhury, Board-certified in internal medicine, reported that she
was lifting small boxes at work. He stated that his note of April 28, 2008, reported appellant was
sitting on the toilet and turned a certain way, experiencing sharp pain in the left lateral chest that
was felt to be a chest strain. Dr. Dryer further stated:
“In summary, you have chronic degenerative disc disease and arthritis. No
definite surgical treatment was needed and your symptoms were treated
medically. The history as reported in the record is different from what you
reported and that could be problematic for your case. Because of the unclear
history from different physicians and because of different stories in the medical
record there is no direct linkage to a condition which would be severe and
debilitating. It is difficult to state that these symptoms you described caused your
medical condition because of these conflicts.”
By decision dated November 18, 2008, the hearing representative affirmed the
December 18, 2007 decision. She found that the medical evidence was insufficient to establish
the claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of an in the course of employment.”2 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.3 In order to determine whether an employee actually sustained an injury in the
1

5 U.S.C. § 8102(a).

2

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

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.4
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
Appellant filed a traumatic injury claim alleging that on October 9, 2007 she was
reaching into a cart and sustained an injury. The Office has not disputed that an employment
incident occurred on October 9, 2007. Since this is not a clear-cut traumatic injury claim,
appellant must submit rationalized medical evidence establishing causal relationship between a
diagnosed condition and the October 9, 2007 employment incident.
The Board finds that the record does not contain a rationalized medical opinion
supporting causal relationship. An attending physician, Dr. Dryer, indicated that appellant had
not initially reported to him an accurate history of the October 9, 2007 incident.8 The record
contains a January 11, 2008 report from him that refers generally to bending and lifting mail at
work, without discussing an October 9, 2007 incident. On August 1, 2008 Dr. Dryer did not
4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

Dr. Dryer refers to emergency room reports and other evidence not contained in the case record. The record
contains brief notes from Dr. Chowdhury, but these notes do not provide a history of injury.

3

provide an opinion supporting an injury causally related to an October 9, 2007 incident. He
noted an unclear medical history. Dr. Dryer did not address whether appellant’s degenerative
disc disease, arthritis or other diagnosed condition was causally related to an October 9, 2007
incident.
It is appellant’s burden of proof to submit rationalized medical opinion evidence on the
issue of causal relationship between a diagnosed condition and the October 9, 2007 employment
incident. The Board finds that she did not meet her burden of proof in this case.
CONCLUSION
The Board finds appellant did not establish an injury in the performance of duty on
October 9, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 18, 2008 is affirmed.
Issued: September 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4