United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Orange, CA, Employer
__________________________________________

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

Docket No. 13-79
Issued: April 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 12, 2012 appellant filed a timely appeal from a June 22, 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 this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On December 30, 2011 appellant, then a 62-year-old city carrier, filed a traumatic injury
claim alleging that on December 27 and 28, 2011 visiting postmasters harassed him on his route.
He stopped work on December 29, 2011.
1

5 U.S.C. § 8101 et seq.

By letter dated January 11, 2012, OWCP requested that appellant submit additional
factual and medical information.
In a statement dated February 8, 2012, appellant related that he believed that the
employing establishment discriminated against him due to his age. He asserted that on
December 21, 2011 two postmasters told him that they had been observing him and questioned
why he took more than the expected time at two locations. Appellant explained that both
locations had a lot of certified mail. On December 27, 2011 two postmasters again went with
him on his route. One told appellant that he should not take more than 10 seconds before
delivering mail. He tried to explain his system to the postmasters but neither would listen and
told him to stop wasting time. Appellant stated:
“This questioning/ridicule happened at every deliver point. ‘[Appellant] just go,
you are too slow.’ They stuck to me like a shadow, giving me orders. When I
followed orders, they continually repeated ‘no, you are too slow.’ At times, I told
them they were confusing me and that [I] was under stress. I told them that if
they keep doing this, I can have [an] accident and that my safety would be in
jeopardy.”
Appellant related that he felt like “a horse being jockeyed with [a] stick.” On
December 28, 2011 his supervisor told him that he needed to take an extra hour loop, Route
6705, because his route was under time and that two postmasters would accompany him on his
deliveries. Appellant received a map of the new route “which did not show streets, numbers and
was generally unreadable.” He delivered his last three loops first as instructed by the
postmasters. Appellant then began to deliver to Route 6705. He could not find one of the streets
on the map so had to call his supervisor, which took extra time. Appellant had to repeatedly call
the employing establishment to find the locations of streets that were not on the map. One
postmaster kept telling him that he was wasting time. The postmasters got frustrated and told
appellant to stop delivering Route 6705 and deliver his own route by 4:00 p.m. even though he
did not begin his route until 12:15 p.m. Appellant called the employing establishment and told
his supervisor that he could not finish his route before 6:00 p.m. and that he had not had lunch or
his scheduled break. The postmaster was angry that appellant could not finish his route by
4:00 p.m. and constantly criticized him. Both postmasters repeatedly “changed their statements
and instructions.” Appellant stated, “At one time, [one postmaster] took a handful of mail from
each of the three trays, in order to demonstrate how to do fast fingering while delivering mail.
The postmaster was so flustered that he put the mail in wrong trays, causing the entire sequence
to be messed up.” The postmasters threatened to rewrite appellant’s route description to make it
a walking route.
By decision dated June 22, 2012, OWCP denied appellant’s claim after finding that he
had not established any compensable employment factors. It determined that he had not
established that the postmasters harassed him or committed error in an administrative action.
On appeal, appellant contends that the supervising officials belittled him and created such
a stressful work environment that he was fearful for his safety and well being. He related that
the postmasters gave confusing orders, shouted and were “rude and offensive.” Appellant
further stated, “I was forced to carry one hour of extra work and ordered to finish my route in the

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same amount of time, despite my opposition and concern.” He noted that OWCP should accept
that his statement as it was not challenged in any significant way by the employing
establishment. Appellant related that he experienced stress because “supervisory officials took
mail out of the locations I placed, and then returned that mail to places I could not
understand….” He maintained that the officials were abusive.
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 or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.3
OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of
employment must identify those conditions. The [claims examiner] must
carefully develop and analyze the identified employment incidents to determine
whether or not they in fact occurred and if they occurred whether they constitute
factors of the employment. When an incident or incidents are the alleged cause of
disability, the [claims examiner] must obtain from the claimant, agency personnel
and others, such as witnesses to the incident, a statement relating in detail exactly
what was said and done. If any of the statements are vague or lacking detail, the
responsible person should be requested to submit a supplemental statement
clarifying the meaning or correcting the omission.”4
ANALYSIS
Appellant has not alleged that his emotional condition was due to his regular assigned
duties. Rather, he alleged that he sustained an emotional condition primarily from harassment
and abuse by postmasters accompanying him on his route on December 27 and 28, 2011. While

2

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

3

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

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, 2.804.17(j) (July 1997).

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appellant filed a traumatic injury claim, as he attributed his condition to events occurring over
more than one duty shift, OWCP properly considered his claim as an occupational disease.5
On January 11, 2012 OWCP requested that appellant submit factual and medical
information in support of his claim. Appellant submitted a detailed statement dated February 8,
2012 describing the events to which he attributed his condition. He alleged that he experienced
stress due to harassment and abuse by postmasters accompanying him on his route. Appellant
further maintained that they gave him conflicting instructions and required him to deliver a route
with a map that was illegible. Even though many of the incidents described by him related to
administrative actions of the employer, he contended that the actions were abusive and,
therefore, were compensable work factors. OWCP did not obtain a statement from the
employing establishment addressing appellant’s allegations. Its procedures require that, in
development of an emotional condition claim, it must obtain statements from witnesses,
coworkers and supervisors, among others, before it makes a determination of whether the
incidents alleged by a claimant occurred and whether such incidents or factors constitute
compensable factors of employment.6 OWCP’s procedures further provide, “In certain types of
claims, such as a stress claim, a statement from the employer is imperative to properly develop
and adjudicate the claim.”7
Although it is a claimant’s burden to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source. It shares responsibility to see that justice is done.8
OWCP’s regulations provide that an employer who has reason to disagree with an aspect of the
claimant’s allegation should submit a statement that specifically describes the factual argument
with which it disagrees and provide evidence or argument to support that position.9 If the
employer does not submit a written explanation to support its disagreement, OWCP may accept
the claimant’s report of injury as established.10
The case will, consequently, be remanded to OWCP to further develop the factual
evidence and, thereafter, to make appropriate findings on appellant’s allegations. OWCP shall
request that the employing establishment address the assertions set forth in appellant’s

5

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
6

See supra note 14; see also Sandra Price, Docket No. 95-3012 (issued January 15, 1998).

7

Federal (FECA) Procedure Manual, supra note 4, Initial Development of Claims, Chapter 2.800.5(d)(1)
(June 2011).
8

See S.P., Docket No. 11-1271 (issued April 19, 2012).

9

20 C.F.R. § 10.117(a).

10

Id.; see Alice F. Harrell, 53 ECAB 713 (2002).

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statements. Following this and such further development as OWCP deems necessary, it should
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this opinion of the Board.
Issued: April 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


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

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

Docket No. 08-993
Issued: September 11, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 21, 2007 and January 18, 2008 that denied her
claim for a schedule award. 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 met her burden of proof to establish that she sustained
impairment caused by her accepted employment injuries that would entitle her to a schedule
award.
FACTUAL HISTORY
On June 19, 2002 appellant, then a 44-year-old letter carrier, slipped and fell on steps
while delivering mail. She began working modified duty. On October 7, 2002 the Office
accepted that appellant sustained right forearm abrasions and contusions, a strain of the right
upper arm, and a contusion of the right chest wall. On July 11, 2003 appellant filed a schedule

award claim. The Office referred her to Dr. Timothy J. Nice, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In reports dated October 16, 2003 and April 2 and
June 25, 2004, Dr. Nice advised that, while appellant’s right upper extremity symptoms had
resolved with no impairment, she continued to have complaints regarding the right ribs and
recommended a bone scan. He reported the bone scan results with positive findings on the left,
and concluded that maximum medical improvement had not been reached. On August 5, 2004
the Office accepted abrasions of the right elbow and wrist, right shoulder strain, and right hip and
thigh contusion. It informed appellant that, as she had not reached maximum medical
improvement, she was not eligible for a schedule award. On November 1, 2004 the Office also
accepted neuralgia of the right chest wall.
Appellant filed a schedule award claim on August 30, 2005. On October 25, 2005 the
Office referred her to Dr. Sheldon Kaffen, Board-certified in orthopedic surgery, for a second
opinion evaluation. In a November 14, 2005 work capacity evaluation, Dr. Kaffen advised that
appellant could return to full duty with no restrictions in two weeks.1 In a November 21, 2005
report, he noted the history of injury, a review of the medical record, and appellant’s report that
she no longer had right upper extremity pain but continued to have lower rib pain. Examination
of the right upper extremity was unremarkable with full range of motion. Examination of the
right rib cage demonstrated slight tenderness over the lower ribs. Dr. Kaffen opined that
appellant no longer had residuals of the June 19, 2002 employment injury, finding only
subjective tenderness of the right chest wall. He concluded that no further medical treatment was
needed.
By letter dated December 22, 2005, the Office asked that Dr. Jeff Kirschman, an
attending physician Board-certified in family and occupational medicine, review Dr. Kaffen’s
report.2 On March 8, 2006 Dr. Kirschman responded that he had returned appellant to full duty
and that beginning April 17, 2006 she could work overtime.
Appellant submitted a May 25, 2006 report in which Dr. Timothy Morley, an osteopath,
noted the history of injury and appellant’s complaint of right shoulder pain. Dr. Morley advised
that appellant had restricted range of motion on the right of the shoulder, elbow and wrist. He
concluded that, in accordance with the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 she had a 17 percent
right upper extremity impairment. In a July 13, 2006 report, Dr. Lutul D. Farrow, an Office
medical adviser agreed with Dr. Morley that appellant had a 17 percent impairment of the right
upper extremity. On October 24, 2006 Dr. Morley reported that appellant had work-related
residuals.
The Office determined that a conflict in medical evidence arose between the opinions of
Dr. Kaffen, who found no impairment or employment-related residuals, and Dr. Morley who
1

At that time appellant was working modified duty, carrying mail only four hours daily.

2

Appellant submitted numerous form reports from Dr. Kirschman who described findings and treatment
recommendations. Dr. Kirschman, however, did not provide medical evidence that could be extrapolated for an
impairment rating.
3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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advised that appellant had a 17 percent impairment of the right upper extremity. On April 16,
2007 the Office referred appellant to Dr. Kenneth W. Chapman, a Board-certified orthopedic
surgeon, for an impartial evaluation. In a May 3, 2007 report, Dr. Chapman noted the history of
injury, his review of the medical record and statement of accepted facts. He stated that appellant
reported that she had no problems whatsoever with her right upper extremity but continued to
have tenderness over the right chest wall. Dr. Chapman advised that on physical examination his
findings were similar to those of Dr. Kaffen, finding no limitation of motion or pain in the right
shoulder, elbow, wrist or hand. He stated that appellant had no residuals of her work injury with
only minimal subjective tenderness beneath the costal margin on the right but nothing objective
to document this. Dr. Chapman concluded that maximum medical improvement was reached in
2004, that she had no impairment, and that no further medical treatment was warranted. In an
attached work capacity evaluation, he advised that appellant could work eight hours a day
without restrictions. In a June 10, 2007 report, Dr. Jason David Eubanks, an Office medical
adviser, agreed that appellant had no permanent impairment related to her accepted conditions.
By decision dated June 21, 2007, the Office found that, based on the opinion of
Dr. Chapman, appellant was not entitled to a schedule award.
Appellant, through her attorney, requested a hearing that was held on October 29, 2007.
At the hearing, counsel contended that the Office exceeded its authority in finding a conflict in
medical evidence and should have accepted Dr. Morley’s impairment rating as reviewed by
Dr. Farrow.
In a January 18, 2008 decision, an Office hearing representative found that a conflict in
medical evidence arose between Dr. Kaffen and Dr. Morley and appellant was properly referred
to Dr. Chapman. The June 21, 2007 decision was affirmed.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act4 and section
10.404 of the implementing federal regulation,5 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides6 has been adopted by the Office, and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.7

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 3.

7

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).

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It is well established that the period covered by the schedule award commences on the
date that the employee reaches maximum medical improvement from the residuals of the
accepted employment injury. The Board has explained that maximum medical improvement
means that the physical condition of the injured member of the body has stabilized and will not
improve further. The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record, and is usually considered to the
date of the evaluation by the attending physician which is accepted as definitive by the Office.8
No schedule award is payable for permanent loss of, or loss of use of, anatomical members or
functions or organs of the body not specified in the Act or in the implementing regulation.9
Section 8123(a) of the Act provides that, 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.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
The Board finds that appellant has not established that she sustained permanent
impairment due to her accepted conditions. Appellant contended that the Office exceeded its
authority in finding a conflict in medical evidence after an Office medical adviser agreed with
Dr. Morley’s assessment that appellant had a 17 percent right upper extremity impairment. The
Board notes that the Act provides that, 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.12 In this case, both Dr. Kaffen and Dr. Morley
provided findings following physical examination and reached differing opinions. The Board
finds that the Office did not abuse its discretion in finding a conflict in their medical opinions or
in referring appellant to Dr. Chapman for an impartial evaluation.13
The Board also notes that no schedule award is payable for a member, function or organ
of the body not specified in the Act or Office regulations.14 Neither the Act nor implementing
regulations specify the ribs as being members of the body for which a schedule award may be
payable.15 Appellant is not entitled to a schedule award for her rib injury. Regarding her right
8

Mark A. Holloway, 55 ECAB 321 (2004).

9

5 U.S.C. § 8107 et seq.; 20 C.F.R. § 10.404; Anna V. Burke, 57 ECAB 521 (2006).

10

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

11

Manuel Gill, 52 ECAB 282 (2001).

12

5 U.S.C. § 8123(a).

13

Id.; see C.N., 57 ECAB 730 (2006); see also 20 C.F.R. § 10.321.

14

Supra note 10.

15

See Terry E. Mills, 47 ECAB 309 (1996).

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shoulder, in a comprehensive report, Dr. Chapman advised that she reported that she had no
problems with her right upper extremity. On physical examination of the right upper extremity,
he found no positive physical findings and recorded a normal range of motion of the shoulder,
elbow, wrist and hand. Dr. Chapman concluded that appellant had no employment-related
residuals and could work eight hours a day without restrictions.
Dr. Chapman provided examination findings and rationale for his opinions and
conclusions. The Board finds that his report is entitled to the special weight accorded an
impartial examiner and constitutes the weight of the medical evidence.16 Appellant therefore did
not establish that she sustained permanent impairment to a scheduled member related to her
accepted injury.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award for her accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2008 be affirmed.
Issued: September 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

See Sharyn D. Bannick, 54 ECAB 537 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fort Lauderdale, FL, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-942
Issued: April 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 4, 2011 appellant, through his attorney, filed a timely appeal from the
October 5, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that he forfeited monetary compensation benefits.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant forfeited his right to compensation for the period May 29,
2002 to August 29, 2003 because he knowingly failed to report earnings from self-employment.

1

OWCP also found that an overpayment was created due to the forfeiture for which appellant was at fault,
thereby precluding waiver of the recovery. On appeal, counsel noted that the only issue being contested is the
forfeiture finding for the period May 29, 2002 through August 29, 2003 in the amount of $82,320.23. See 20 C.F.R.
§ 501.3(c)(5).
2

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP erred in its forfeiture determination when it
found that appellant failed to report employment activities with Alhi Sales, Inc. (Alhi), the
family business, for the period in question. He contends that OWCP regulations do not require
reporting investment income or passive ownership in a business and that OWCP should have
requested clarification from appellant regarding his ownership in the family business.
FACTUAL HISTORY
On April 15, 1993 appellant, then a 37-year-old criminal investigator, filed a traumatic
injury claim alleging that on April 8, 1993 he injured his right arm and right shoulder blade while
participating in a health improvement program.3 OWCP accepted the claim for right shoulder
tendinitis, cervical strain, right elbow tendinitis, right shoulder adhesive capsulitis, intervertebral
disc disorder with myelopathy and herniated disc at C5-6 placed him on the periodic rolls for
temporary total disability.4
On February 10, 1994 appellant filed an occupational disease claim alleging that his posttraumatic stress disorder and depression with anxiety were aggravated by his employment
injury.5 OWCP accepted the claim for temporary aggravation of adjustment disorder with
depression. On December 11, 1995 it placed appellant on the periodic rolls in receipt of wageloss compensation for temporary total disability.
As a benefit receipt, OWCP periodically required appellant to submit updated
information (Form EN1032) regarding his employment, volunteer work, dependents, other
federal benefits or payments received and any third-party settlements. The reports required that
appellant provide information covering the 15-month period preceding the date of the request.
The reports contain a clear warning advising him that a false or evasive answer to any question
or the omission of an answer may be grounds for forfeiting his compensation benefits. The
record contains EN1032 forms signed by appellant on September 17, 2002, August 29, 2003,
September 10, 2004, December 1, 2005 and August 21, 2006. In forms dated August 29, 2003,
September 10, 2004, December 1, 2005, he wrote an “X” next to the question “were you selfemployed or involved in any business enterprise in the past 15 months? A. Yes or No: __” and
wrote “No __ see attached.” Appellant signed and dated the form relevant to this appeal on
August 29, 2003. In an attachment, he noted that he helped his mother with whatever he could,
was not employed, did not receive any wages, income or salary from any business activity and, if
further information was required, that he would be happy to provide additional information. For
the attachments associated with EN1032 forms signed and dated September 10, 2004 and
December 1, 2005, appellant wrote that he was involved with the family business based on
advice from his physician. He assisted his family within his physical limitations and was not
involved in management decisions or the running of the business. Appellant was only a
shareholder in the family business and held no director or officer position with the corporation.

3

This was assigned claim number xxxxxx773.

4

On March 3, 1998 OWCP granted appellant a schedule award for a 34 percent permanent impairment of his
right arm.
5

This was assigned claim number xxxxxx572. OWCP combined claim number xxxxxx572 with claim number
xxxxxx773, with the latter number as the master file number.

2

On the EN1032 form signed August 21, 2006 he circled “no” in response to the question of
whether he was self-employed or involved in any business activity within the past 15 months.
The record contains an August 17, 2009 investigative report from the Department of
Labor, Office of the Inspector General. The report provided information received from various
family members and employees of Alhi that were interviewed. It was found there was sufficient
evidence to establish that appellant failed to properly report income from Alhi, as required. The
report found that he had been significantly involved in the operation of Alhi from 2002 to 2006,
which had not been properly reported on the EN1032 forms he submitted. The investigation was
initiated based on a complaint from appellant’s brother. The report contained details of the
investigation, a summary of witness statements and a recommendation that OWCP determine
whether an overpayment had occurred. The report was not accompanied by any witness
statements or signed affidavits from those individuals questioned.
On October 20, 2009 OWCP issued a preliminary finding of an overpayment in the
amount of $284,696.94. Appellant was found to have failed to report income and other business
activities that affected the benefits received from May 29, 2002 through August 21, 2006. He
was found at fault in the creation of the overpayment by knowingly misrepresenting his business
activity and employment status during the periods covered by the EN1032 forms signed
September 17, 2002, August 29, 2003, September 10, 2004 and December 1, 2005. OWCP
concluded that appellant had forfeited his right to compensation for the period May 29, 2002
through August 21, 2006. It provided a calculation of the overpayment, based on compensation
received by him May 29, 2002 to March 22, 2003 in the amount of $49,956.08; March 22, 2003
to March 20, 2004 in the amount of $66,423.57; March 21, 2004 to March 19, 2005 in the
amount of $67,550.43; March 20 to 18, 2006 in the amount of $69,839.86 and March 19 to
August 21, 2006 in the amount of $30,927.00, for a total overpayment of $284,696.94. OWCP
informed appellant that he had 30 days to request a prerecoupment hearing on the issues of fault
and a possible waiver.
On October 31, 2009 appellant requested a prerecoupment hearing before an OWCP
hearing representative. He also submitted an overpayment recovery questionnaire.
A hearing was held on February 24, 2009 at which appellant testified and was
represented by counsel. Testimony was given regarding the incorporation of the family business
in approximately 1970. Appellant related that he became a shareholder based on his investment
in the company and was given 10 shares. He worked at Alhi until he went to work for the
employing establishment. Following his federal employment, appellant continued to be involved
with sales, accounting and finance for Alhi; but following his work injury in 1993, he reduced
the time worked for the business. Following his father’s death in December 2001, he received
additional shares resulting in a total of 13 shares. Appellant spent three to five hours a week at
Alhi where he provided financial advice to his mother to make sure things were done efficiently.
He recommended a company credit card for employees to use instead of petty cash and a change
in accountants. Appellant testified that his statement attached to the EN1032 form noted that he
was helping his mother.
Following the hearing, appellant submitted affidavits from several family members and
employees supporting his contention that he was not active in the running Alhi, but merely
provided support to his mother following the death of his father in December 2001.
3

In a January 24, 2010 affidavit, appellant’s mother stated that he was available four to
five hours a week at Alhi without pay during the 1990’s and that during the period 2002 to 2005
he would help depending on his health and as needed. She indicated that appellant had no
business position within Alhi as he was not a business manager, comptroller or sales manager
and had no authorization to sign any checks. The only involvement by appellant was to provide
financial experience and advice. Appellant’s mother stated that appellant was never paid any
wages or salary for the assistance he provided the family business. In 2002, she requested him to
accompany a salesperson on her behalf since he was already on vacation in Dallas, Texas.
Appellant’s mother stated that appellant secured credit cards for the business in his name and
that of his brother. The credit cards were used for business expenses and by employees of the
company.
Appellant’s sister related in a March 4, 2010 affidavit that, after 2002, appellant would
occasionally offer financial and business advice. She also stated that appellant had no authority
to sign checks or any signature authority at the bank.
In a March 15, 2010 affidavit, appellant’s son stated that after 2002 appellant would
occasionally help by providing business and financial advice. He noted that he was aware that
the credit card issued in appellant’s name for Alhi was used to pay business expenses and was
used by various company employees. Appellant’s son related that appellant had no signature
authority at the bank and checks were signed by other family members.
On February 23, 2010 Randy Kane, a former employee of Alhi, stated that appellant was
one of the three owners of Alhi. On the occasions that appellant traveled with him, Mr. Kane
stated that it was because appellant provided advice on company matters, negotiations and was
looking out for Alhi’s business interest.
By decision dated October 5, 2010, OWCP’s hearing representative modified the
forfeiture period to May 29, 2002 to August 29, 2003, which resulted in an overpayment of
compensation in the amount of $82,320.23. Appellant was found at fault in the creation of the
overpayment and waiver of recovery was not warranted.
LEGAL PRECEDENT
Section 8106(b) of FECA provides that an employee who fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.6
OWCP has the burden of proof to establish that appellant did, either with knowledge,
consciously, willfully or intentionally, fail to report earnings from self-employment. To meet
this burden of proof, it is required to closely examine appellant’s activities and statements in
reporting employment earnings.7
OWCP may meet this burden by appellant’s own subsequent admission to OWCP that he
failed to report employment or earnings, which he knew he should report. It may meet this
6

5 U.S.C. § 8106(b)(1) and (2)

7

See Michael D. Mathews, 51 ECAB 247 (1999).

4

standard without an admission by appellant, if he failed to fully and truthfully complete the
EN1032 forms and the circumstances of the case establish that he failed to fully and truthfully
reveal the full extent of his employment activities and earnings. OWCP may also meet this
burden if it establishes through the totality of the factual circumstances that his certification in
the EN1032 forms that he was not employed or self-employed, was false.8
Income on profits from business are not generally held to be the fruits of wage-earning
capacity but of the investment, the management and business acumen of the owner and the return
on the investment of an employee’s capital, even though augmented by his personal attention in
looking after the business in which it is invested, cannot be considered as if it were wages.
Where, however, the source of income can be differentiated, i.e., as representing either profit and
return on capital, or the product of the employee’s work, any portion of the income directly
traceable to such work may be considered as if it were “wages.”9
The Board has distinguished between income received from investment and earnings
received by performing work. The former is not considered to be evidence of a claimant’s
ability to work and earn wages but rather is considered to be a return on investment. The latter is
considered to be wages if the source of income can be established to be the product of the
claimant’s work.10 In the case of Gregg B. Manston,11 the Board found that, while passive land
investment can be considered an investment, activity such as property management can be
considered employment from which a claimant derives earnings as the product of his work.
Management activities may be considered self-employment activities if someone else could be
hired to perform such activities, if the employee was not performing them. The distinction to be
made is between passive business investment profit and active work resulting in earnings.
Before OWCP can declare a forfeiture of compensation, it must establish that appellant received
earnings from self-employment, not from passive investment in business ventures.12
ANALYSIS
OWCP found that appellant forfeited his right to compensation for the period May 29,
2002 to August 29, 2003 because he knowingly failed to report employment activities related to
his work with a family business, Alhi, on the Form EN1032 dated August 29, 2003. The amount
of compensation found forfeited by OWCP’s hearing representative was $82,320.23 for which
appellant was at fault.
On appeal, counsel argued that OWCP failed to support its forfeiture determination as
there was no evidence establishing that appellant knowingly failed to report self-employment or
earnings on the EN1032 form signed on August 29, 2003. In support of this argument, he
contends that appellant was not required to report his activities at Alhi as he had no active role in
the business and the work he performed three to five hours per week had no value in the open
8

See Donald L. Overstreet, 54 ECAB 678 (2003). See also Terry A. Geer, 51 ECAB 168 (1999).

9

Vernon Booth, 7 ECAB 209 (1954).

10

Anthony V. Knox, 50 ECAB 402 (1999); Burnett Terry, 46 ECAB 457 (1995).

11

45 ECAB 344 (1994).

12

See Anthony V. Knox, supra note 10.

5

labor market. In addition appellant contends that OWCP failed to consider all the circumstances
showing that he failed to comply with the reporting requirement in 2003. In support of his
argument, appellant’s counsel cites to the sections of FECA Procedure Manual at 2.402.5 and
2.812.10(c) and 11(c) and 20 C.F.R. § 10.5(g) which address the reporting requirements of selfemployment, unreported earnings and investment income or ownership of a business. He also
cited Jack Sipe,13 Vernon Booth;14 and Anthony A. Nobile15 to support his contention that
appellant was not required to report his ownership interest in or work activities for Alhi as there
was no evidence the three to five hours per week he work had “considerable value on the open
labor market” and there was no evidence that appellant’s involvement or work activities with
Alhi could be construed as an integral to the operation of the family business.
Appellant testified that, following his father’s death in December 2001, he was given an
additional three shares and worked three to five hours per week giving business advice and
helping his mother. The Board has distinguished between income received from investment and
earnings received by performing work noting that the former is considered to be a passive return
on investment rather than evidence of a claimant’s ability to work and earn wages. The ability to
work and earn wages is considered wages only if the source of income can be established to be
the products of the claimant’s work.16 Appellant’s testimony and the affidavits from his mother,
son, sister and Mr. Kane all support his contention that his involvement with Alhi was limited to
providing business advice occasionally. The affidavits from Ms. Trimas, Mr. Jimmy Gonzalez
and Mrs. Gonzalez relate that appellant occasionally worked at Alhi from three to five hours per
week providing his mother, Mrs. Gonzalez, with financial and business advice. Mr. Kane stated
that, when appellant traveled with him, he provided advice and looked out for Alhi’s business
interest, but did not participate in negotiations. There is no evidence that appellant’s work for
Alhi was anything but de minimis as he worked no more than three to five hours per week, he did
not hold any office in the business, and there is no evidence that the capacity in which appellant
served could be found on the open labor market. The Board finds that in the absence of
sufficient credible evidence showing that appellant engaged in the active management of Alhi,
that he worked more hours than three to five hours per week or that the work he performed had
“considerable value on the open market,” his involvement with Alhi must be seen as
participation in a passive investment and not active work resulting in wages or earnings.
Because OWCP did not show that appellant had employment or earnings that had to be
reported on the EN1032 form he completed, it did not meet its burden of proof to show that he
forfeited his right to compensation for the period May 29, 2002 to August 29, 2003.

13

43 ECAB 773 (1992). The Board found that the income derived from the sale of cattle sold from the farm the
employee owned was not the product of work activity. He only served as a farm owner who paid attention to the
enterprise.
14

See supra note 9. The Board found that income received as an owner of a tavern was a return on the
employee’s business investment and not earnings or wages. Appellant engaged in such activities as providing
advice, inspecting the books and “just observing” when he was physically capable.
15

44 ECAB 268 (1992). The Board held that the test of what constitutes reportable earnings is not whether
appellant received a salary but what it would have cost to have someone else do the work.
16

Anthony V. Knox, supra note 10; Burnett Terry supra note 10.

6

CONCLUSION
The Board finds that OWCP improperly determined that appellant forfeited his right to
compensation for the period May 29, 2002 to August 29, 2003 in the amount of $82,320.23.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 5, 2010 is reversed.
Issued: April 4, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

7

Groom, M., Alternate Judge, concurring:
I join in the finding of the majority that the evidence of record is insufficient to establish
that appellant forfeited his right to compensation from May 29, 2002 to August 29, 2003 based
on his knowing failure to report earnings from self-employment.
In Eugene R. Anderson,1 OWCP found the employee forfeited compensation for a period
of time thus creating an overpayment in the amount of $55,900.04. This finding was premised
on several investigative memorandums that stated that he received salary as president of the
Horizon Manufacturing Corporation and was in receipt of compensation for total disability even
though he had collected more than $1,000,000.00 from investors in various corporations formed
between April 1977 and November 1980. The investigative memorandums provided a summary
of information obtained from various witnesses, including the employee’s brother-in-law, on
which the forfeiture finding was based. The Board noted however that the interviews conducted
were summarized by the special agents; there were no written or signed statements by any of the
interviewees. The Board stated that “investigative reports referring to affidavits signed by
witnesses, but which do not include the affidavits, are insufficient evidence on which to base a
finding of forfeiture.”2 The Board noted that the investigative reports of record did not contain
any signed affidavits by the listed witnesses or even claim that any witnesses had signed
affidavits to substantiate as factual the matters discussed during the interviews.
The August 7, 2009 investigative report of the Office of the Inspector General in this case
is similarly deficient. The case was opened after it received a complaint from appellant’s brother
that he was working for Alhi Sales Inc., the family business, while receiving wage-loss benefits
for total disability. The report provides information obtained from various family members and
individuals who had worked at the business from 2002 to 2005. But as noted by appellant’s
counsel on appeal, there are no witness statements or signed affidavits of record accompanying
the report. There is nothing of record to verify any information contained in the report.
Following submission of the report to the record, counsel presented signed affidavits from
several family members. Appellant’s mother noted that appellant would come and go depending
on his health and helped her with advice on financial matters. She noted that, following the
death of her husband in 2002, she oversaw the business, approved the purchases of products and
conducted the hiring and firing of employees. This evidence is not controverted by any
substantive evidence for the allegations contained in the investigative report are rendered of
diminished probative value.3

1

40 ECAB 452 (1989).

2

Id. at 459. See also Robert R. Holmes, Docket No. 86-415 (issued June 27, 1986).

3

See Queen A. Upton, Docket No. 98-2571 (issued December 1, 2000). See also R.W., Docket No. 08-1607
(issued July 26, 2010). The Board found that investigators provided only summaries of interviews conducted with
the employee and other witnesses. There were no individual signed statements by any of the parties questioned
attesting to the accuracy of the information provided. The Board found this evidence was not sufficient to outweigh
the employee’s testimony that she did not have earnings.

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

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

Docket No. 13-1199
Issued: January 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2013 appellant filed a timely appeal from a February 20, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
On appeal, appellant contends that OWCP’s decision was improper.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 4, 2012 appellant, then a 60-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging an emotional condition in the performance of duty. On
November 23, 2011 Jose L. Sepulveda, a fellow employee, intimidated him with words and
gestures and acted like a supervisor by giving him instructions. Mr. Sepulveda was not
appellant’s supervisor. Appellant submitted hospital reports and a December 8, 2011 note from a
social worker.
By letter dated April 24, 2012, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It requested that he provide additional factual and medical
evidence, including a report from an attending psychiatrist or clinical psychologist within 30
days.
Appellant submitted a narrative statement alleging that he worked in a hostile
environment since May 31, 2011. Mr. Sepulveda stated in a high tone of voice, “This old son of
a b***h bastard don’t do what he is supposed to do and I end up f***ing myself doing it.”
Appellant stated that he was subjected to yelling and cursing by Mr. Sepulveda, in English and
Spanish, on several different occasions. Mr. Sepulveda was suspended several times but would
return to work and continue his behavior after each suspension. Appellant was previously
treated for anxiety due to active service. He submitted a June 2, 2011 narrative statement
reiterating the May 31, 2011 incident.
In a November 28, 2011 statement, appellant alleged that on November 23, 2011
Mr. Sepulveda complained about the manner in which he performed assigned duties. He stated
that Mr. Sepulveda was always giving instructions and calling people on the telephone to show
up for work as if he were a supervisor.
Appellant submitted a copy of the employing establishment’s zero tolerance policy of
violence in the workplace and documentation dated January 30 through February 10, 2012
regarding an Occupational Safety and Health Administration (OSHA) complaint. On
January 30, 2012 he submitted a report of alleged hazardous working conditions, including:
“separate two incidents, May and November 2011, [when] a coworker showed hostilities and
aggression towards supervisors and coworkers by yelling and cursing during regular working
hours. Employees are concerned about their safety and information and training not provided to
them related to agency’s procedures related to violence in the workplace incidents.” OSHA
advised that it would not conduct an inspection; however, it instructed the employing
establishment to perform an investigation since allegations had been made.
By letter dated February 9, 2012, the employing establishment stated that appellant’s
safety violation allegations were investigated on December 19, 2011. The alleged harasser,
Mr. Sepulveda, was informed of the seriousness of inappropriate conduct on the premises and
offered a referral to the Employee Assistance Program (EAP). As a preventative measure he
would report to another position that was not located at the platform area where appellant
worked. Visual aids were made available on the workroom floor at the employee bulletin boards
as to violence in the workplace.

2

In a February 10, 2012 letter, OSHA noted that the employing establishment had
investigated appellant’s complaint and taken steps to achieve compliance and avoid possible
future violations. OSHA closed the case on the grounds that the hazardous conditions had been
corrected. It notified appellant that if he did not agree that the hazards had been satisfactorily
abated, he must contact OSHA by February 17, 2012.
On February 15, 2012 appellant contended that Mr. Sepulveda was at his work site on
February 11, 2012 even though he was instructed not to be at the platform. He went to the
platform crew break area during the whole working shift. Appellant stated that he did not feel
safe around Mr. Sepulveda as he disturbed the peace with his loud talking and harassment.
On May 5, 2012 Dr. Sylvia Berrios, a Board-certified psychiatrist, advised that appellant
was hospitalized from December 5 to 20, 2011 and received psychiatric treatment for symptoms
including: severe anxiety, irritability, poor impulse control, lack of sleep and frequent
nightmares. She stated that his symptoms arose in association with problems concerning another
coworker. Dr. Berrios diagnosed hypertension, gastroesophageal reflux disease and problems in
work environment.
By decision dated October 11, 2012, OWCP denied appellant’s claim. It found that he
did not establish a compensable factor of employment.
On November 26, 2012 appellant requested reconsideration. He submitted a narrative
statement and an August 28, 2012 report from Dr. Luis Escabi, a psychiatrist, who diagnosed
major depressive disorder. Dr. Escabi indicated that appellant had no previous history of
emotional conditions and that his depressive disorder was severe, had remained severe and was
not expected to improve significantly. A mental status examination revealed depression,
anhedonia, insomnia, isolation, crying spells, anxiety, loss of memory, irritability and suicidal
ideas. Dr. Escabi opined that appellant was totally disabled and restricted from going to work
due to the severity of his emotional condition.
By decision dated February 20, 2013, OWCP denied modification of its October 11, 2012
decision.
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 or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction-

2

Id.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

in-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.3
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular
duties, these could constitute employment factors.4 However, for harassment to give rise to a
compensable disability under FECA there must be evidence that harassment did, in fact, occur.
Mere perceptions of harassment are not compensable under FECA.5
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.6 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.7
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.8
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions, which believes caused or adversely affected
a condition for which compensation is claimed and a rationalized medical opinion relating the
claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, 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
3

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

4

See David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

5

See Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

See Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

See Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

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

4

employment, OWCP 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, OWCP 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 employment
incidents and conditions in his employment as a mail handler. OWCP denied his emotional
condition claim on the grounds that he did not establish a compensable employment factor. The
Board must, thus, initially review whether these alleged incidents and conditions of employment
are covered employment factors under the terms of FECA. The Board notes that appellant’s
allegations do not pertain to his regular or specially assigned duties under Cutler.13 Rather,
appellant has alleged harassment on the part of a coworker.
For harassment to give rise to compensability under FECA there must be evidence that
harassment did, in fact, occur. Mere perceptions of harassment are not compensable under
FECA.14 The Board has recognized the compensability of verbal altercations or abuse when
sufficiently detailed by the claimant and supported by the record. This does not imply, however,
that every statement uttered in the workplace will give rise to compensability.15 In the present
case, OWCP found that the evidence did not substantiate his allegations. Specifically, there is no
evidence substantiating any derogatory remarks made by Mr. Sepulveda to appellant. The record
contains no witness statement corroborating appellant’s description of the alleged incidents. The
evidence of record does not establish that any of the incidents rose to the level of verbal abuse or
otherwise constituted a compensable work factor.16 The Board finds no evidence substantiating
appellant’s contention that he was harassed by Mr. Sepulveda.
The record contains appellant’s OSHA complaint regarding harassment by
Mr. Sepulveda and the results of an investigation by the employing establishment. Appellant
submitted a January 30, 2012 OSHA report of alleged hazardous working conditions and of the
employing establishment’s zero tolerance policy of violence in the workplace. OSHA did not
conduct any inspection. In a February 9, 2012 letter, the employing establishment noted that
appellant’s allegations were investigated on December 19, 2011. It stated that Mr. Sepulveda
was spoken to and informed of the seriousness of inappropriate conduct on the premises and
offered EAP.
The employing establishment noted that, as a preventative measure,
Mr. Sepulveda would report to another position that was not located at the platform area where
12

Id.

13

See Lillian Cutler, supra note 2.

14

See supra note 5.

15

See David C. Lindsey, 56 ECAB 263 (2005). The mere fact that a supervisor or employee may raise his or her
voice during the course of an argument does not warrant a finding of verbal abuse. Joe M. Hagewood, 56 ECAB
479 (2005).
16

See J.J., Docket No. 07-2014 (issued January 24, 2008).

5

appellant worked. Subsequently, appellant alleged that Mr. Sepulveda was at his work site on
February 11, 2012, but he failed to submit sufficient evidence to establish this allegation as
factual.
The Board has long held that grievances and Equal Employment Opportunity complaints
by themselves do not establish that workplace harassment or unfair treatment occurred.17 The
Board finds that the employing establishment’s report of investigation and its recommendation
that Mr. Sepulveda be relocated as a preventative measure is not a finding of harassment nor is
the fact that Mr. Sepulveda was spoken to and informed of the seriousness of possible
inappropriate conduct on the premises a finding of harassment. The evidence of record on
appeal is insufficient to substantiate appellant’s allegations of harassment by the coworker.
Because appellant has not presented sufficient evidence that he was harassed by his
coworker, Mr. Sepulveda, he has failed to establish a compensable work factor.18 Appellant has
not met his burden of proof to establish a claim.19
On appeal, appellant contends that OWCP’s decision was improper. For the reasons
stated above, the Board finds his argument is not substantiated.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

17

See Parley A. Clement, 48 ECAB 302 (1997).

18

See H.C., Docket No. 12-457 (issued October 19, 2012).

19

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2013 Office of Workers’
Compensation Programs decision is affirmed.
Issued: January 2, 2014
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 14-1895
Issued: March 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 25, 2014 appellant filed a timely appeal from a June 19, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP) and a July 28, 2014 nonmerit decision
denying reconsideration. 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 established that he sustained greater than a 34
percent impairment of the left upper extremity, for which he received schedule awards; and
(2) whether OWCP properly denied his request for reconsideration.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 29, 1979 appellant, then a 31-year-old nurse,
dislocated his right shoulder when struck by a sliding door. Appellant initially underwent a
September 4, 1980 anterior reconstruction of the right shoulder with removal of loose bodies.
Following 1980 and 1983 arthroscopies, appellant underwent a total arthroplasty of the right
shoulder on January 12, 1999. He required open subscapularis repairs on April 2, 1999 and
April 11, 2000, and a revision hemiarthroplasty performed on July 30, 2003. By decision dated
January 24, 2002, appellant received schedule awards totaling 65 percent impairment of the right
upper extremity.
In a September 19, 2003 report, Dr. Surendrapal Singh Mac, an attending orthopedic
surgeon, noted appellant’s complaints of pain and stiffness in his left shoulder due to
overcompensation for the dysfunction of his right arm. On examination, he observed crepitus
with range of motion, a positive impingement test, mild restriction of motion due to pain, and
tenderness over the anterior aspect. Dr. Mac diagnosed subacromial bursitis with impingement
syndrome of the left shoulder. In reports through January 2005, he provided the following
ranges of motion for the left shoulder: forward elevation at 85 degrees; back ward elevation at
40 degrees; 90 degrees abduction; 30 degrees adduction; 25 degrees internal rotation; 25 degrees
external rotation.
On March 28, 2005 appellant claimed an additional schedule award. In a January 25,
2006 report, an OWCP medical adviser reviewed Dr. Mac’s reports. He opined that according to
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, “A.M.A., Guides”) then in effect, the limitations of motion equaled a
total 18 percent impairment of the left upper extremity.
By decision dated February 7, 2006, OWCP granted appellant a schedule award for 18
percent impairment of the left arm and an additional 53 percent impairment of the right arm, for
a total 100 percent impairment of the right arm. In July 2008, it expanded the claim to include a
left rotator cuff sprain with impingement syndrome.
On August 5, 2009 Dr. Mac completed an upper extremity impairment worksheet
excerpted from the sixth edition of the A.M.A., Guides, based on the rating methodology of
Table 15-34.2 He opined that appellant reached maximum medical improvement. Dr. Mac
obtained the following ranges of motion for the left shoulder on July 24, 2009: 80 degrees
flexion equaling 9 percent impairment; 20 degrees extension equaling 2 percent impairment; 80
degrees abduction equaling 16 percent impairment; 30 degrees adduction equaling 2 percent
impairment; 40 degrees internal rotation equaling 4 percent impairment; 30 degrees external
rotation equaling 2 percent impairment. Dr. Mac added these percentages to equal 23 percent
impairment of the left upper extremity. In a November 11, 2009 report, an OWCP medical
adviser concurred with Dr. Mac’s calculation of a 23 percent impairment of the left arm
according to Table 15-34.

2

A.M.A., Guides 475, Table 15-34, is entitled “Shoulder Range of Motion.”

2

By decision dated January 25, 2010, OWCP issued a schedule award for an additional 5
percent impairment of the left upper extremity, for a total of 23 percent.
In an April 13, 2012 report, Dr. Nady Hamid, an attending orthopedic surgeon, related
appellant’s history of bilateral shoulder conditions and right total shoulder arthroplasty. He
obtained x-rays showing end stage glenohumeral arthritis of the left shoulder. On examination,
Dr. Hamid noted limited left shoulder range of motion.3 On July 5, 2012 he performed a total
left shoulder arthroplasty, approved by OWCP.4 Dr. Hamid released appellant from care on
August 2, 2013, finding that his left shoulder had stabilized.
On June 3, 2014 an OWCP medical adviser reviewed the medical record and provided an
impairment rating. He found that appellant reached maximum medical improvement as of
August 2, 2013. The medical adviser found that, according to Table 15-5,5 appellant had a
class 3 diagnosis-based impairment, Class of Diagnosis (CDX) for a total shoulder arthroplasty
complicated by loss of range of motion. The default, class C, impairment for this condition is 40
percent impairment. The medical adviser found a grade modifier for Functional History
(GMFH) findings of 1 according to Table 15-7,6 and a grade modifier for Physical Examination
(GMPE) of 1 according to Table 15-8.7 He explained that as clinical studies were included in the
CDX, a separate grade modifier for Clinical Studies (GMCS) was not appropriate. The medical
adviser applied the net adjustment formula of (GMFH-CDX) + (GMPE-CDX), resulting in a net
adjustment of -4, reducing the default CDX grade from C to A, equaling a 34 percent impairment
of the left upper extremity.8 In a June 11, 2014 report, he clarified that appellant had an 11
percent impairment of the left arm in addition to the 23 percent previously awarded, for a total of
34 percent.
By decision dated June 19, 2014, OWCP granted appellant a schedule award for an
additional 11 percent impairment of the left upper extremity, for a total of 34 percent.

3

An April 30, 2012 magnetic resonance imaging (MRI) scan of the left shoulder showed advanced glenohumeral
arthritis with subchondral degenerative cyst formation, a partial thickness supraspinatus tendon tear, degenerative
glenoid labrum tear, and moderately advanced acromioclavicular osteoarthritis with narrowing of the
coracoacromial arch.
4

During his treatment with Dr. Hamid, appellant also consulted Dr. Mac. In April 18 and August 19, 2013
reports, Dr. Mac related appellant’s complaints of chronic left shoulder pain. On examination, he found mildly
limited ranges of left shoulder motion without laxity or instability.
5

A.M.A., Guides 401 (sixth edition) Table 15-5 is entitled “Shoulder Regional Grid:
Impairments.”

Upper Extremity

6

A.M.A., Guides 406 (sixth edition) Table 15-7 is entitled “Functional History Adjustment: Upper Extremities”

7

A.M.A., Guides (sixth edition) Table 15-8 is entitled “Physical Examination Adjustment: Upper Extremities.”

8

The Board notes that in his report, the medical adviser calculated a grade modifier of negative six instead of
negative four. This is harmless error, as the application of a grade modifier of negative four or negative six would
result in the same reduction of the impairment class from C downward to A.

3

In a July 18, 2014 letter, appellant requested reconsideration. He asked that OWCP
consider a June 5, 2014 report from Dr. Mac in calculating the schedule award. Appellant did
not submit additional evidence.
By decision dated July 28, 2014, OWCP denied reconsideration on the grounds that
appellant’s July 18, 2014 letter was irrelevant to the claim. It noted that it did not receive the
June 5, 2014 report mentioned by appellant.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body.9 FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.10 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on functional history,
physical examination, and clinical studies.13 Under the sixth edition, the evaluator identifies the
impairment class for the diagnosed condition, which is then adjusted by grade modifiers based
on functional history, physical examination, and clinical studies. The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.14 In some instances, an OWCP’s medical adviser’s
opinion can constitute the weight of the medical evidence. This occurs in schedule award cases
9

5 U.S.C. § 8107.

10

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
13

A.M.A., Guides 494-531 (6th ed. 2008).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No.
12-1857 (issued February 26, 2013).

4

where an attending physician indicates maximum medical improvement has been reached and
described the permanent impairment of the affected member, but does not offer an impairment
rating. In this instance, a detailed opinion by OWCP medical adviser which gives a percentage
based on reported findings and the A.M.A., Guides may constitute the weight of the medical
evidence.15
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained left shoulder conditions as a consequence of a
right shoulder injury and total joint arthroplasty. On February 7, 2006 it granted him a schedule
award for an 18 percent impairment of the left arm. OWCP granted a second schedule award on
January 25, 2010 for an additional five percent impairment of the left arm. Dr. Hamid, an
attending orthopedic surgeon, performed a total arthroplasty of the left shoulder on July 5, 2012,
authorized by OWCP.
An OWCP medical adviser provided an impairment rating on June 3, 2014. He found a
class 3 diagnosis-based impairment according to Table 15-5, a grade modifier for functional
history of 1 according to Table 15-7, and a grade modifier for physical examination findings of 1
according to Table 15-8. There was no applicable modifier for clinical studies. Using the net
adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-3) + (1-3), the
medical adviser calculated a grade modifier of -4, reducing the default CDX grade from C,
equaling 40 percent, to A, equaling 34 percent. On June 19, 2014 OWCP issued a schedule
award for an additional 11 percent impairment of the left upper extremity, for a total of 34
percent.
The Board finds that OWCP properly relied on an OWCP medical adviser’s June 3, 2014
impairment rating. The medical adviser’s opinion was based on the complete record. He
properly applied the appropriate portions of the A.M.A., Guides to Dr. Hamid’s clinical
findings.16 The medical adviser provided detailed explanations and calculations for each rating
element. Therefore, OWCP’s June 19, 2014 decision finding a 34 percent impairment of the left
upper extremity was proper under the facts and circumstances of this case. There is no probative
medical evidence establishing a greater percentage of impairment.
Appellant may request a schedule award or increased schedule award regarding the left
upper extremity at any time, based on evidence of a new exposure, or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(i) (September 2010).
16

See id. at Schedule Awards and Permanent Disability Claims, Chapter 2.810.8(j) (January 2010).

17

5 U.S.C. § 8128(a).

5

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.18 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.19
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his burden of proof.20 He need only submit
relevant, pertinent evidence not previously considered by OWCP.21 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(2) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.22
ANALYSIS -- ISSUE 2
OWCP issued a schedule award on June 19, 2014. On July 18, 2014 appellant requested
reconsideration. He asked that OWCP consider a June 5, 2014 report from Dr. Mac, an attending
orthopedic surgeon, in calculating the schedule award. Appellant did not submit the June 5,
2014 report or additional medical evidence. By decision dated July 28, 2014, OWCP denied
reconsideration on the grounds that his July 18, 2014 letter was irrelevant to the claim. It noted
that it did not receive the June 5, 2014 report.
The Board finds that OWCP properly denied appellant’s request for reconsideration.
Appellant’s July 18, 2014 letter asking that OWCP consider a medical report not of record is
irrelevant to the schedule award issue. It is not a basis for reopening the case.23
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). A claimant may be entitled to a merit review by submitting new and
relevant evidence, but appellant did not submit any in this case. He 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 constitute relevant and pertinent evidence not previously
considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. Its July 28,
2014 decision denying reconsideration was proper under the law and facts of the case.
On appeal, appellant asserts that OWCP wrongly failed to consider Dr. Mac’s June 5,
2014 report prior to calculating the June 19, 2014 schedule award. As noted, this report was not
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

20

Helen E. Tschantz, 39 ECAB 1382 (1988).

21

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

22

Annette Louise, 54 ECAB 783 (2003).

23

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

6

of record as of June 19, 2014. Therefore, OWCP did not err by failing to consider evidence that
was not of record in the case.
CONCLUSION
The Board finds that OWCP properly found that appellant did not sustained more than a
34 percent impairment of the left upper extremity, for which he received schedule awards. The
Board further finds that OWCP properly denied reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 28 and June 19, 2014 are affirmed.
Issued: March 4, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1155
Issued: November 23, 2011

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant, through his attorney, filed a timely appeal from the
December 22, 2010 and February 14, 2011 merit decisions of the Office of Workers’
Compensation Programs (OWCP) denying his recurrence claim. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 sustained a recurrence of the accepted right knee
condition, requiring further medical treatment.
FACTUAL HISTORY
On March 1, 1989 appellant, then a 33-year-old mechanic’s helper, sustained an injury at
work. His claim was accepted by OWCP for right knee lateral meniscus tear.
1

5 U.S.C. § 8101 et seq.

On August 18, 2010 appellant filed a claim for recurrence of medical condition, alleging
that he required medical treatment of his right knee on May 11, 2010. His supervisor sent him to
dispensary for pain of his right foot, right knee, right hip and right quadriceps. Appellant stated
that his treating physician was no longer practicing medicine. He noted on the claim form that
he did not stop work. Appellant’s employer challenged the claim on August 17, 2010, stating
that appellant had been on light duty, performing only sedentary work since 2008. The employer
noted that appellant had been off work for a lengthy period of time and had returned to light
work in 2008, due to another injury. It was noted that appellant had not sought medical
treatment for his right knee condition since 1994.
On June 28, 2010 OWCP received several medical reports from Dr. J.E. Keever and
Dr. Barry Green, dated October 2, 1989 to September 11, 1991. Appellant submitted a copy of a
schedule award, dated March 7, 1990 for an 18 percent impairment of the right leg. OWCP also
received a May 26, 2010 surgical report, from Dr. James Lillich, a Board-certified orthopedic
surgeon, who advised that appellant had undergone a cheileotomy of the first metatarsal
phalangeal joint.
On November 17, 2010 OWCP advised appellant that the evidence of record was
insufficient to establish his recurrence claim. It requested that he submit a narrative medical
report from his attending physician that included objective findings that his condition had
worsened or that his work duties had changed.
By decision dated December 22, 2010, OWCP denied appellant’s claim for a recurrence
of his right knee condition on the grounds that the factual and medical evidence did not establish
that the need for medical treatment resulted from the accepted work injury.
Appellant disagreed with the decision and requested reconsideration on January 27, 2011.
In a supplemental statement, he explained that, after being disqualified from his mechanic
position due to exacerbation of his feet and knee conditions in 2008, he was assigned work as a
clerk. Appellant asserted that his clerk duties, which included climbing with heavy boxes,
caused further deterioration of his feet and right knee conditions.
In a January 5, 2010 letter, Dr. John David Googe, a Board-certified orthopedic surgeon,
stated that he saw appellant for the first time on December 10, 2010 for right knee pain, which
was the result of a work injury on March 1, 1989. He stated his understanding that appellant’s
compensation claim was closed and that appellant wanted it reopened. Dr. Googe attached a
copy of his December 10, 2010 report that listed a history that appellant initially hurt his right
knee back in 1989. The physical examination revealed that appellant had mild valgus deformity
of the right knee, but good cruciate collateral ligament support. It was also noted that the plain
films showed “bone[-]on[-]bone arthritis of the lateral compartment of the right knee.”
Dr. Googe diagnosed bone-on-bone arthritis and suggested periodic injections as a temporary
treatment measure. He noted the possibility of eventual total knee replacement, but the right
knee was presently not bothering appellant.
By decision dated February 14, 2011, OWCP denied modification of the December 22,
2010 decision on the grounds that appellant failed to submit sufficient medical evidence
supporting a recurrence of his right knee condition.

2

LEGAL PRECEDENT
A recurrence of medical condition is defined by OWCP’s implementing regulations,2 as a
documented need for further medical treatment after a release from treatment for the accepted
condition or injury when there is no accompanying work stoppage. Continuous treatment for the
original condition or injury is not considered a need for further medical treatment after release
from treatment, nor is an examination without treatment.3 When a claim for a recurrence of
medical condition is made more than 90 days after release from medical care, an employee is
responsible for submitting an attending physician’s report which contains a description of the
objective findings and supports causal relationship between the employee’s current condition and
the accepted condition. In order to establish that a claimed recurrence of medical condition was
caused by the accepted injury, medical evidence bridging the symptoms between the present
condition and the accepted injury must support the physician’s conclusion of a causal
relationship.4
ANALYSIS
In this case, appellant has not established a recurrence of his accepted March 1, 1989
right knee condition as of May 11, 2010.
Appellant’s 1989 claim was accepted for right knee lateral meniscus tear. There is no
medical documentation of treatment for this condition after 1991, although the employing
establishment noted medical treatment ceased in 1994. The medical evidence which addresses
appellant’s right knee condition consists of a January 5, 2011 letter and December 10, 2010
report from Dr. Googe who diagnosed appellant with bone-on-bone arthritis in his right knee,
and stated that the condition was “the result [of] a work[-]related injury that occurred on
[March 1, 1989].” Dr. Googe did not support his stated conclusion of causation with sound
medical reasoning or address what factors in appellant’s case prompted him to form such a
conclusion. The opinion of a physician supporting causal relationship must be based on a
complete and accurate medical and factual background, supported with affirmative evidence and
explained by medical rationale.5 Dr. Googe offered no explanation as to how appellant’s
accepted right knee meniscal tear from 1989 recurred in 2010 or caused bone-on-bone arthritis.
The Board has found that vague or unrationalized medical opinions on causal relationship are of
diminished probative value.6 As such, Dr. Googe’s opinion is not sufficient to establish
causation in this claim.

2

20 C.F.R. § 10.5(y).

3

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

4

M.M., Docket No. 10-2197 (issued September 15, 2011).

5

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

6

See Theron J. Barham, 34 ECAB 1070 (1983).

3

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 failed to establish that he sustained a recurrence of his
accepted March 1, 1989 injury.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2011 and December 22, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4