United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
El Cajon, CA, Employer
__________________________________________

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

Docket No. 19-1598
Issued: April 17, 2020

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 July 11, 2019 appellant filed a timely appeal from a June 3, 2019 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. 2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $25,443.87, for which he was not at fault, as he concurrently
received Social Security Administration (SSA) age-related retirement benefits while receiving
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 3, 2019 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.

FECA wage-loss compensation benefits for the period January 1, 2010 through March 30, 2019;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $180.00 every 28 days from
appellant’s continuing compensation payments.
FACTUAL HISTORY
On August 25, 1992 appellant, then a 47-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he sustained a left shoulder sprain when
loosening lug nuts on a vehicle while in the performance of duty. He did not initially stop work.
OWCP accepted the claim for left shoulder strain/sprain. It paid wage-loss compensation on the
periodic rolls effective January 23, 1995 based upon appellant’s loss of wage-earning capacity.
On March 7, 2019 OWCP received from SSA a July 24, 2018 Federal Employees
Retirement System (FERS)/(SSA) dual benefits calculation form which indicated that appellant
had been in receipt of SSA age-related retirement benefits since January 1, 2010. The form
showed SSA benefit rates with and without a FERS offset. Beginning January 1, 2010, appellant’s
SSA rate with FERS was $1,663.60 and without FERS was $1,414.70; beginning January 1, 2011,
appellant’s SSA rate with FERS was $1,663.60 and without FERS was $1,425.10; beginning
December 1, 2011, appellant’s SSA rate with FERS was $1,723.40 and without FERS was
$1,476.40; beginning January 1, 2012, appellant’s SSA rate with FERS was $1,723.40 and without
FERS was $1,486.10; beginning December 1, 2012, appellant’s SSA rate with FERS was
$1,752.70 and without FERS was $1,511.40; beginning January 1, 2013, appellant’s SSA rate with
FERS was $1,752.70 and without FERS was $1,519.80; beginning December 1, 2013, appellant’s
SSA rate with FERS was $1,779.00 and without FERS was $1,542.50; beginning January 1, 2014,
appellant’s SSA rate with FERS was $1,785.00 and without FERS was $1,560.80; beginning
December 1, 2014, appellant’s SSA rate with FERS was $1,815.30 and without FERS was
$1,587.20; beginning January 1, 2015, appellant’s SSA rate with FERS was $1,829.10 and without
FERS was $1,612.20; beginning December 1, 2016, appellant’s SSA rate with FERS was
$1,834.50 and without FERS was $1,617.00; beginning December 1, 2017, appellant’s SSA rate
with FERS was $1,871.20 and without FERS was $1,649.30; and beginning December 1, 2018,
appellant’s SSA rate with FERS was $1,923.50 and without FERS was $1,695.40.
In a letter dated April 9, 2019, OWCP advised appellant that he had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of his SSA benefits
were attributed to his years of federal service as an employee under the FERS retirement program
and that portion required an offset of his FECA compensation benefits. OWCP indicated that the
adjustment of appellant’s FECA benefits to account for his SSA offset would begin on April 26,
2019, and would reflect a new net compensation amount of $1,224.01.
On April 26, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $25,443.87, because he concurrently received
FECA wage-loss compensation benefits and SSA age-related retirement benefits for the period
January 1, 2010 through March 30, 2019. It explained that it had calculated the overpayment of
compensation by determining the difference between appellant’s SSA benefit rate with and
without FERS for each period, and then multiplying that amount by the number of days in each
period.
2

The FERS offset calculation worksheet indicated that OWCP utilized a 28-day FERS offset
amount of $2,740.64 for the 334 days from January 1 to November 30, 2010; $254.37 for the 31
days from December 1 to 31, 2010; $2,626.12 for the 334 days from January 1 to November 30,
2011; $252.43 for the 31 days from December 1 to 31, 2011; $2,620.73 for the 335 days from
January 1 to November 30, 2012; $246.60 for the 31 days from December 1 to 31, 2012; $2,564.46
for the 334 days from January 1 to November 30, 2013; $241.70 for the 31 days from December 1
to 31, 2013; $2,468.66 for the 334 days from January 1 to November 30, 2014; $233.11 for the 31
days from December 1 to 31, 2014; $2,388.28 for the 334 days from January 1 to November 30,
2015; $2,617.10 for the 366 days from December 1, 2015 to November 30, 2016; $2,617,17 for
the 365 days from December 1, 2016 to November 30, 2017; $2,670.12 for the 365 days from
December 1, 2017 to November 30, 2018; and $902.37 for the 120 days from December 1, 2018
to March 30, 2019.
Using these figures, OWCP calculated that the total overpayment amount was $25,443.87.
It further found that appellant was without fault in the creation of the overpayment, as he was not
aware, nor could he reasonably have been aware, that OWCP had paid compensation incorrectly.
OWCP requested that he complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. Additionally, it notified appellant that
within 30 days of the date of the letter, he could request a final decision based on the written record
or a prerecoupment hearing.
Appellant submitted a completed Form OWCP-20 on May 16, 2019. His income totaled
$4,889.74, including FECA compensation benefits of $1,224.01, SSA benefits of $2,580.00,3 and
other income.
Appellant reported that his monthly expenses totaled $5,831.09, which included $1,300.00
for rent or mortgage, $600.00 for food, $100.00 for clothing, $1,316.00 for utilities, $1,600.00 of
miscellaneous expenses, and monthly payments to creditors of $915.09. Appellant indicated that
he had available assets of $11,457.83 in an Individual Retirement Account (IRA) money market
funds, $300.00 in cash on hand, $1,165.71 in a checking account, and $60.92 in a savings account.
He indicated that he was unaware of the overpayments. OWCP also received supporting financial
documentation from appellant.
On May 16, 2019 appellant requested that OWCP make a decision based on the written
record regarding possible waiver of recovery of the overpayment.
By decision dated June 3, 2019, OWCP finalized the preliminary determination that
appellant had received an overpayment of compensation in the amount of $25,443.87 for the period
January 1, 2010 through March 30, 2019, as he had received FECA wage-loss compensation
benefits without an appropriate offset for SSA age-related retirement benefits attributable to FERS.
It denied waiver of recovery of the overpayment, finding that he currently had assets of $11,457.83,
which exceeded the set amount of $10,300.00 for an individual with a spouse. OWCP required

3

Appellant listed his SSA income as $1,788.00 and his wife’s SSA income as $792.00.

3

recovery of the overpayment by deducting $180.00 every 28 days from appellant’s continuing
compensation payments until the debt was paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled. 6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $25,443.87, as he received SSA age-related retirement benefits
while concurrently receiving FECA wage-loss compensation benefits for the period January 1,
2010 through March 30, 2019.
In its June 3, 2019 decision, OWCP found that an overpayment of compensation was
created for the period January 1, 2010 through March 30, 2019. The overpayment was based on
the evidence received from SSA with respect to age-related retirement benefits paid to appellant.
A claimant cannot receive both FECA compensation for wage loss and SSA age-related retirement
benefits attributable to federal service for the same period. 9 The information provided by SSA
indicated that appellant received SSA age-related retirement benefits that were attributable to
federal service during the period January 1, 2010 through March 30, 2019.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997).

9
5 U.S.C. § 8116(d)(2); see C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).

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To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated.
OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. The SSA provided their rate with and without
FERS for specific periods commencing January 1, 2010 through March 30, 2019. OWCP
provided its calculations for each relevant period based on a FERS offset calculation worksheet
and in its April 26, 2019 preliminary overpayment determination. No contrary evidence was
received.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period January 1, 2010 through March 30, 2019 and finds that an overpayment of compensation
in the amount of $25,443.87 was created. 10
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] 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.”11
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 13 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 14 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 15

10

See C.M., id.; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
13

Id. at Chapter 6.400.4.a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
14

See supra note 12 at Chapter 6.400.4.a(2) (September 2018).

15

Id. at Chapter 6.400.4.b(3).

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Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.16
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18 OWCP considered
appellant’s financial information to determine if recovery of the overpayment would defeat the
purpose of FECA. Appellant provided his current monthly income and expenses in Form OWCP20 on May 16, 2019, as well as a summary of his liquid assets. OWCP properly determined that
appellant listed available assets of $11,457.83, which exceeds the base asset amount of $10,300.00
for individuals with a spouse or dependent.19 It was therefore unnecessary for OWCP to consider
whether his monthly income exceeds his monthly ordinary and necessary expenses by more than
$50.00.20
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience. He has not submitted evidence to substantiate that he would
experience severe financial hardship in attempting to repay the debt, or that in reliance on the
overpayment he gave up a valuable right or changed his position for the worse. Therefore, OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA or be
against equity and good conscience. 21

16

Id. at § 10.437(a)(b).

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

Id. at § 10.436.

19

Supra note 12.

20

Id.

21

See supra note 16.

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LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship. 22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$180.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $180.00 every 28 days, OWCP explained that the factors set
forth at 20 C.F.R. § 10.441(a) had been considered to minimize hardship, while liquidating the
debt, as appellant had financial resources sufficient for more than ordinary needs. 23 As noted,
appellant submitted a Form OWCP-20 on May 16, 2019 showing that he had assets of $11,457.83.
Thus, OWCP did not abuse its discretion in setting the rate of recovery. 24 The Board therefore
finds that OWCP properly required recovery of the overpayment from appellant’s continuing
compensation payments at the rate of $180.00 every 28 days.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $25,443.87 for which he was not at fault, as he concurrently
received SSA age-related retirement benefits while receiving FECA wage-loss compensation
benefits for the period January 1, 2010 through March 30, 2019. The Board finds that OWCP
properly denied waiver of recovery of the overpayment and properly required recovery of the
overpayment by deducting $180.00 every 28 days from appellant’s continuing compensation
payments.

22

20 C.F.R. § 10.441(a); see C.M., supra note 9.

23

See D.S., Docket No. 18-1447 (issued July 22, 2019).

24

See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 17, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

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

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 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.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his burden of proof.
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.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

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LEGAL PRECEDENT -- ISSUE 2
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. 14
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.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 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. 18
ANALYSIS -- ISSUE 2
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).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see 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).
16

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. Supra note 11 at 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 2.1602.4b.
17

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

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, SOUTHWEST
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0262
Issued: November 22, 2019

Case Submitted on the Record

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

On March 15, 2017 appellant filed a timely appeal from a December 5, 2016 merit decision
and February 2, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.
On June 21, 2005 appellant, then a 42-year-old mail carrier, filed an occupational disease
claim (Form CA-2), which OWCP accepted under File No. xxxxxx333 for bilateral shoulder
calcifying tendinitis, right shoulder region other affections, bilateral chondromalacia patella, and
bilateral flat foot. He also had a prior claim under File No. xxxxxx006, which OWCP accepted
for left shoulder strain. OWCP administratively combined File Nos. xxxxxx333 and xxxxxx006,
with the latter serving as the master file. It granted appellant schedule award compensation as
follows: 19 percent permanent impairment of the right upper extremity; a total of 16 percent
permanent impairment of the left upper extremity;1 a total of 26 percent permanent impairment of

1
For the left upper extremity, OWCP initially granted appellant a schedule award for 3 percent permanent
impairment, and then issued an additional schedule award for 13 percent permanent impairment.

the right lower extremity;2 and a total of 26 percent permanent impairment of the left lower
extremity.3
On July 9, 2016 appellant filed a claim for an additional schedule award (Form CA-7) due
to increased permanent impairment of the upper and lower extremities.
By development letter dated July 26, 2016, OWCP requested that appellant submit a report
from his attending physician containing an impairment rating in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4
In response, OWCP received an August 9, 2016 letter from Paul S. Pepich, a physical
therapist, who conducted an impairment evaluation of appellant’s bilateral knee and shoulder
conditions utilizing the diagnosis-based impairment (DBI) method under the sixth edition of the
A.M.A., Guides. Mr. Pepich found four percent permanent impairment of each lower extremity
and four percent permanent impairment of each upper extremity. He concluded that appellant had
reached maximum medical improvement (MMI). Subsequently, in an October 18, 2016 letter,
Mr. Pepich, utilizing the range of motion (ROM) method under the sixth edition of the A.M.A.,
Guides for rating appellant’s bilateral feet conditions, found 9 percent permanent impairment of
the right foot and 13 percent permanent impairment of the left foot.
Dr. Arthur S. Harris, an OWCP medical adviser and Board-certified orthopedic surgeon,
reviewed Mr. Pepich’s findings and, after applying the DBI methodology, concluded that appellant
had no additional permanent impairment of either the upper or lower extremities. He noted that
Mr. Pepich was a physical therapist and that, since his impairment ratings had not been verified by
a physician, they were invalid. Consequently, OWCP, by a December 5, 2016 decision, denied
appellant’s claim for an increased schedule award compensation for additional permanent
impairment of his bilateral upper and lower extremities. Appellant subsequently requested a
review of the written record. By February 2, 2017 nonmerit decision, a representative of OWCP’s
Branch of Hearings and Review denied appellant’s request for a review of the written record, as
untimely filed.
To support a claim for a schedule award, an employee must submit an impairment rating
from a qualified physician that is in accordance with the A.M.A., Guides.5
Pursuant to OWCP’s procedures, if a claimant does not provide an impairment evaluation
from his/her physician when requested, and there is an indication of permanent impairment in the
medical evidence of file, the claims examiner should refer the claim for a second opinion
2

For the right lower extremity, OWCP initially granted appellant a schedule award for 3 percent permanent
impairment, and then issued an additional schedule award for 23 percent permanent impairment.
3

For the left lower extremity, OWCP initially granted appellant a schedule award for 4 percent permanent
impairment, and then issued an additional schedule award for 22 percent permanent impairment.
4

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

5
L.W., Docket No. 16-1317 (issued June 21, 2017); E.O., Docket No. 12-0517 (issued July 6, 2012); James
Robinson, Jr., 53 ECAB 417 (2002).

2

evaluation. The claims examiner may also refer the case to the district medical adviser prior to
scheduling a second opinion examination to determine if the evidence in the file is sufficient for
the district medical adviser to provide an impairment rating.6
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.7 Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.8
The Board concludes that Mr. Pepich, in his August 9 and October 18, 2016 reports,
indicated that appellant had reached MMI, and had an increased impairment. OWCP’s medical
adviser then determined that Mr. Pepich’s findings were insufficient to determine the nature and
extent of any increased impairment as he is a physical therapist and his reports were not
countersigned by a physician. Thus, the medical adviser opined that Mr. Pepich’s examination
was invalid. As there is an indication of permanent impairment in the medical evidence of file,
OWCP should, therefore, have obtained an opinion from a second opinion physician with regard
to appellant’s permanent impairment of his bilateral upper and lower extremities.9
On remand OWCP shall refer appellant to an appropriate specialist for a medical opinion
on the degree of appellant’s additional permanent impairment due to his bilateral upper and lower
extremity conditions. After this and other such further development of the case record as OWCP
deems necessary, it shall issue a de novo decision.10 Accordingly,

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(d) (March 2017).
7

See Richard E. Simpson, 55 ECAB 490 (2004).

8

See M.E., Docket No. 16-0770 (issued July 26, 2016).

9

Supra note 9.

10
In light of the Board’s disposition regarding the schedule award issue, the issue regarding the denial of the request
for review of the written record as untimely filed is rendered moot.

3

IT IS HEREBY ORDERED THAT the February 2, 2017 and December 5, 2016
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further proceedings consistent with this order of the Board.
Issued: November 22, 2019
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, ONTARIO
INTERNATIONAL AIRPORT, Ontario, CA,
Employer
__________________________________________

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

Docket No. 09-1136
Issued: January 13, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed an appeal from a January 23, 2009 decision of the
Office of Workers’ Compensation Programs. 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 the Office properly denied authorization for back surgery. On
appeal appellant, through her attorney, argues that the decision is contrary to fact and law.
FACTUAL HISTORY
On January 26, 2005 appellant, then a 35-year-old supervisory transportation security
screener, filed a Form CA-1, traumatic injury claim, alleging that she hurt her lower back that
day loading luggage onto an x-ray machine. On April 18, 2005 the Office accepted that she

sustained employment-related lumbar sprain/strain.1 Appellant did not stop work but missed
intermittent periods for doctor’s appointments and physical therapy. An August 23, 2004
magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated a small herniation at
L3-4. An April 27, 2005 lumbar spine MRI scan demonstrated a disc protrusion at L3-4 with
probable left L3 nerve impingement, and a July 15, 2005 discogram was negative at L2 through
L4 and positive at L5-S1.2 The accepted condition was later expanded to include displacement
of lumbar intervertebral disc without myelopathy.
On September 29, 2006 appellant filed a Form CA-2a, notice of recurrence, stating that
she stopped work on September 21, 2006 based on her doctor’s recommendation. She stated that
she was trying to adhere to her restrictions but that it was impossible and her condition
worsened. In an October 24, 2006 report, Dr. G. Sunny Uppal, an attending physician, noted
appellant’s complaint of back and leg pain, physical findings of lower back spasms, decreased
range of motion, and a positive straight leg raising examination, and recommended anterior
posterior decompression and fusion at L5-S1 surgery. He advised that appellant was totally
disabled. The Office accepted the recurrence and paid appropriate wage-loss compensation.3
Dr. Uppal continued to submit reports reiterating his findings and conclusions.
On January 26, 2007 the Office referred appellant to Dr. Paul Bouz for a second opinion
evaluation. In a February 23, 2007 report, Dr. Bouz noted the history of injury, his review of the
medical record including MRI scan and discogram studies and appellant’s complaints of low
back pain radiating into both legs, more on the left. He provided examination findings and
diagnosed a protruded disc at L5-S1. Dr. Bouz advised that, although appellant could continue
to have back pain, she had reached maximum medical improvement, that she should be restricted
from heavy lifting and repetitive bending and stooping at work, and that, under Table 15-3 of the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, she had a five percent whole person impairment. He concluded that, based on his
physical examination and objective studies, appellant should be able to live with her symptoms,
and opined that she did not need to undergo the fusion surgery because it would not guarantee
elimination of her symptoms.
On April 13, 2007 appellant accepted a modified supervisory position as an exit lane
monitor with physical requirements that she could intermittently stand or sit and that a chair
would be provided. She was to complete on-line computerized training. Appellant returned to
work but stopped on April 17, 2007, stating that she could not work within the restrictions of the
1

The record indicates that appellant previously injured her back on May 18, 2004 that was also accepted for
lumbar sprain and is in closed status.
2

On April 20, 2006 appellant rejected a modified supervisory position job offer dated April 19, 2006. The
physical requirements were no pushing, no pulling, and no lifting beyond 25 pounds on an intermittent basis and
very little bending. The record does not indicate that she stopped work.
3

On November 27, 2006 the Office requested that an Office medical adviser provide an assessment of the
requested surgery. The record does not indicate that the Office medical adviser responded. By decision dated
February 6, 2007, the Office found that appellant was not at fault in the creation of an overpayment in compensation
in the amount of $1,147.74 and denied waiver. Appellant repaid the overpayment. A second overpayment of
$201.53 was administratively terminated.

2

second-opinion doctor. She thereafter filed CA-7 forms, claims for compensation, beginning on
April 17, 2007. In reports dated April 17 and May 2, 2007, Dr. Uppal again recommended
surgery and advised that appellant was totally disabled, noting that he had reviewed Dr. Bouz’s
report and disagreed with his findings and conclusions.
On May 22, 2007 the Office referred appellant to Dr. William C. Boeck, Jr. for a second
opinion evaluation regarding whether she had residuals of the January 25, 2005 work injury and
regarding the requested surgery.4 By report dated June 11, 2007, Dr. Boeck noted the history of
injury, his review of the medical record, and appellant’s complaints of radiating back pain with
numbness and tingling of the foot and hypersensitivity of the legs. He provided examination
findings and diagnosed lumbosacral disc protrusion with left-sided radiculitis as a residual of the
January 25, 2005 employment injury. Dr. Boeck opined that appellant’s prognosis was guarded
but that he did not feel there was a sufficient indication that she should have the proposed
surgery. In an attached work capacity evaluation, he advised that appellant could not perform
her usual job due to persistent low back pain with radiculopathy and provided restrictions of one
hour walking, standing, bending, stooping, pushing, pulling and lifting with a 10-pound weight
restriction and no restrictions on sitting, reaching, reaching above shoulder, twisting, operating a
motor vehicle, repetitive wrist movements, squatting, kneeling or climbing.
By letter dated June 20, 2007, the Office informed appellant that a conflict in medical
evidence had been created between the opinions of Drs. Uppal and Boeck regarding the need for
surgery and whether she could perform the April 12, 2007 limited-duty position that required no
lifting. In a supplemental report dated July 12, 2007, Dr. Boeck advised that appellant could
perform the limited-duty position. Dr. Uppal continued to submit reports in which he reiterated
his findings and conclusions, and an operative report dated September 17, 2007, indicated that he
performed internal fixation, decompression and fusion surgery at L5-S1.
A second
September 17, 2007 operative report indicated that appellant had decompression and fusion
surgery at L4-5.
On February 6, 2008 the Office referred appellant to Dr. Anthony Fenison, for an
impartial evaluation regarding whether appellant was capable of performing the light-duty
position described in the April 12, 2007 job description and regarding the necessity for the low
back surgery.5 In a March 17, 2008 report, Dr. Fenison noted the history of injury, his review of
the medical record, and appellant’s complaint of low back and buttocks pain radiating down her
legs with back stiffness and leg numbness and weakness and that her condition was about the
same despite the surgery. Findings on physical examination of the lumbar spine included
tenderness across the lower back and surgical site with no acute muscle spasm noted. Straight
leg raising was negative in both sitting and supine positions and Laseque sign was negative.
Motor examination was grossly intact and sensation was intact to soft touch. Upper and lower
extremity measurements were symmetrical. Dr. Fenison diagnosed status post L5-S1 fusion in
September 2007, and opined that it was difficult for him to make any final recommendations
regarding her current status because she was still in rehabilitation following the surgery. He
4

The Office found that a conflict in medical evidence had been created between the opinions of Drs. Uppal and
Bouz. Its letter notifying appellant of the appointment, however, did not inform her that a conflict had been found.
5

Drs. Uppal, Bouz, Boeck and Fenison are Board-certified in orthopedic surgery.

3

noted that appellant brought some preoperative x-rays that revealed some mild degenerative
changes and that postoperative x-rays from December 2007 and films taken by him revealed
postsurgical changes. Dr. Fenison opined that appellant’s diagnostic studies did not appear to
correlate with the ultimate surgical procedure, noting that the MRI scans of August 2004 and
April 2005 demonstrated a disc herniation at L3-4 and that no comments were made regarding
the L5-S1 level, and that a September 2007 x-ray of the lumbar spine was normal, which again
made it difficult to explain why she had disc pathology at L5-S1. He also noted that the record
contained two operative reports, with one stating that she had surgery at the L4-5 level and
another at the L5-S1 level, opining that this must be a typographical error. Regarding the need
for surgery, Dr. Fenison agreed with the comments made by Dr. Bouz and Dr. Boeck that the
initial injury did not correlate with appellant’s subjective complaints and, more importantly, that
the radiographic evidence did not document the need for such aggressive surgical intervention.
He concluded that appellant’s condition was not yet permanent and stationary but that she could
return to some form of modified duty. In an attached work capacity evaluation, Dr. Fenison
advised that appellant could work eight hours daily with restrictions for three to four months of
six hours sitting, operating a motor vehicle, twisting and kneeling, two hours walking, three
hours standing, bending and stooping, four hours lifting 10 pounds, squatting and climbing and
eight hours of repetitive wrist and elbow movements, pushing and pulling 50 pounds. He
advised that she should have a 10-minute break every 45 minutes.
By report dated June 4, 2008, Dr. Uppal noted his review of and disagreement with
Dr. Fenison’s conclusions. He advised that mention of surgery at L4-5 was a clerical error and
that appellant’s condition had improved. Physical examination included a negative straight leg
raising and Faber’s test. Dr. Uppal diagnosed L5-S1 decompression and fusion and advised that
appellant could return to work on August 4, 2008 with limitations of no heavy lifting, bending or
stooping. In a July 2, 2008 decision, the Office denied appellant’s claim for disability
compensation for the period April 17, 2007 to August 3, 2008 and continuing and that the Office
properly denied authorization for the September 17, 2007 lumbar spine surgery. On July 9, 2008
appellant, through counsel, requested a hearing. In a September 9, 2008 report, Dr. Uppal
advised that appellant had returned to work and was doing remarkably well with a negative
straight-leg raising examination.
At the hearing, held telephonically on November 3, 2008, appellant described the
employment injury and testified that when she returned to work in April 2007 she was not
working as an exit lane monitor but was sitting for eight hours a day at a computer terminal,
catching up on her online learning, and that, after two days, her back pain became too severe to
continue. She stated that she did not return to work until August 4, 2008 when she began
administrative duties and that she had a good result from her September 17, 2007 surgery. On
November 10, 2008 appellant filed a schedule award claim,6 and on November 10, 2008
accepted a light-duty assignment with no heavy lifting, bending or stooping. In a November 13,
2008 work capacity evaluation, Dr. Uppal advised that these were permanent restrictions and
also provided a 25-pound lifting restriction.

6

The record does not indicate that a schedule award decision has been issued.

4

By decision dated January 23, 2009, an Office hearing representative reversed the finding
that appellant was not entitled to wage-loss compensation for the period April 17, 2007 to
August 3, 2008 on the grounds that the medical evidence failed to support that she could perform
the limited-duty job at the time the offer was made.7 The hearing representative affirmed the
July 2, 2008 Office decision with regard to the necessity for the lumbar spine surgery.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act8 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances, and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.9 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.10
In interpreting this section of the Act, the Board has recognized that the Office has broad
discretion in approving services provided under section 8103, with the only limitation on the
Office’s authority being that of reasonableness.11 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.12 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.13 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for the Office to authorize payment.14
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
7

Appellant subsequently received retroactive wage-loss compensation.

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8103; see L.D., 59 ECAB ___ (Docket No. 08-966, issued July 17, 2008).

10

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

11

See D.K., 59 ECAB ____ (Docket No. 07-1441, issued October 22, 2007).

12

Minnie B. Lewis, 53 ECAB 606 (2002).

13

M.B., 58 ECAB 588 (2007).

14

R.C., 58 ECAB 238 (2006).

5

shall appoint a third physician who shall make an examination.15 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an Office medical adviser, the Office
shall appoint a third physician to make an examination. This is called a referee examination, and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.16 When there exist opposing medical reports of virtually equal
weight and rationale and 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
upon a proper factual background, must be given special weight.17
ANALYSIS
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Fenison who opined that the surgery at L5-S1 was not medically warranted. In order for a
surgical procedure to be authorized, a claimant must submit evidence to show that the surgery is
for a condition causally related to an employment injury and that it is medically warranted. Both
of these criteria must be met in order for the Office to authorize payment.18 Dr. Fenison
provided a comprehensive report dated March 17, 2008 in which he noted his review of the
record and provided examination findings. Regarding the need for surgery, he stated that the
August 2004 and April 2005 MRI scans demonstrated a disc herniation at L3-4 but made no
mention of a condition at the L5-S1 level, and that a September 2007 x-ray was essentially
normal. Dr. Fenison advised that he agreed with the comments made by Drs. Bouz and Boeck
regarding the need for surgery and opined that the employment injury did not correlate with
appellant’s subjective complaints and, more importantly, that the radiographic evidence did not
document the need for such aggressive surgical intervention. Dr. Bouz advised that appellant did
not need to undergo fusion surgery because it would not guarantee elimination of her symptoms,
and Dr. Boeck opined that he did not feel there was a sufficient indication that appellant should
have the proposed surgery.
As noted above, a reasoned opinion from a referee examiner is entitled to special
weight.19 The Board finds that Dr. Fenison provided a well-rationalized opinion based on a
complete background, his review of the accepted facts and the medical record including the
August 2004 and April 2005 MRI scans and his examination findings. Dr. Fenison’s opinion
that the surgery at L5-S1 was not medically warranted is entitled to special weight and represents
the weight of the evidence.20

15

5 U.S.C. § 8123(a); see Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

16

20 C.F.R. § 10.321.

17

V.G., 59 ECAB ____ (Docket No. 07-2179, issued July 14, 2008).

18

R.C., supra note 14.

19

V.G, supra note 17.

20

Id.

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Appellant subsequently submitted reports dated June 4 and September 9, 2008 in which
Dr. Uppal noted his disagreement with the Dr. Fenison’s conclusion regarding the need for
surgery and reiterated his findings and conclusions. Dr. Uppal, however, was on one side of the
conflict in medical evidence resolved by Dr. Fenison, and the Board has long held that an
additional report from a claimant’s physician, which essentially repeats earlier findings and
conclusions, is insufficient to overcome the weight accorded to an impartial medical specialist’s
report.21 The Board therefore finds that Dr. Uppal’s reports are insufficient to overcome or to
create a new conflict with the well-rationalized opinion of Dr. Fenison. The evidence of record
thus does not establish that the surgery at L5-S1 was medically necessary.22
CONCLUSION
The Board finds that the Office properly denied authorization for the recommended
surgical procedure to appellant’s lumbar spine.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2009 be affirmed.
Issued: January 13, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

21

M.S., 58 ECAB 328 (2007).

22

R.C., supra note 14.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cape May, NJ, Employer
__________________________________________

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

Docket No. 08-1364
Issued: November 12, 2008

Case Submitted on the Record

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

JURISDICTION
On April 8, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 16, 2007 regarding her 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 has more than a two percent right upper extremity
impairment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By order dated August 6, 2007, the
Board set aside a September 1, 2006 Office decision and remanded the case.1 The Board noted
that the Office had received a supplemental report from Dr. George Glenn, Jr., a Board-certified
orthopedic surgeon selected as a referee examiner, prior to the September 1, 2006 decision, but
1

Docket No. 07-953 (issued August 6, 2007).

did not consider the evidence. The case was remanded for proper consideration of the evidence
of record.
With respect to the development of the case prior to the Board’s August 6, 2007 order,
the Office had found a conflict in the medical evidence under 5 U.S.C. § 8123(a) regarding the
degree of permanent impairment in the right arm.2 The Office accepted right lateral
epicondylitis and right cubital tunnel syndrome causally related to appellant’s work as a letter
carrier. An attending physician, Dr. David Weiss, an osteopath, opined in a November 18, 2003
report that appellant had a 39 percent right arm impairment, based on sensory and motor deficits,
loss of grip strength and pain. An Office medical adviser opined in a September 28, 2004 report
that appellant had a 13 percent right arm permanent impairment.
Dr. Glenn was selected as the referee physician and submitted a report dated
May 26, 2005. He provided a history, results on examination and reviewed the medical
evidence. Dr. Glenn provided range of motion results, noted normal grip strength and found no
motor weakness or sensory deficit in the ulnar nerve. He stated that he agreed with the Office
medical adviser that any reported strength deficit involving the biceps or triceps was not related
to an ulnar nerve problem. Dr. Glenn stated that while he found no objective evidence of
sensory deficits, appellant did report subjective complaints. He identified Table 16-15 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.) and
found the maximum impairment for the sensory deficit/pain was seven percent. The maximum
was graded at 25 percent under Table 16-10 for a 2 percent right arm impairment. An Office
medical adviser concurred in a June 19, 2005 report that appellant had a two percent right arm
permanent impairment.
By decision dated October 5, 2005, the Office issued a schedule award for a two percent
right upper extremity impairment commencing May 26, 2005. In a decision dated May 31, 2006,
an Office hearing representative affirmed the October 5, 2005 decision.
On June 19, 2006 appellant submitted a June 6, 2006 report from Dr. Weiss, who stated
that he agreed the ulnar nerve did not enervate the biceps or triceps, but stated these muscles are
involved in flexing the elbow and if the elbow is not properly flexed, it could lead to biceps and
triceps weakness. Dr. Weiss stated that appellant did have reduced grip strength, and reiterated
his opinion that she had a 39 percent right arm impairment.
By letter dated July 12, 2006, the Office requested that Dr. Glenn review Dr. Weiss’
June 6, 2006 report. In a report dated August 17, 2006, Dr. Glenn indicated that he had reviewed
the report but found no reason to change his opinion. He stated that he found no residual
2

The Employees’ Compensation Act provides that, if there is a 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 the examination. 5 U.S.C. § 8123(a). The implementing regulation states that, if a conflict exists
between the medical opinion of the employee’s physician and the medical opinion of either a second opinion
physician or an Office medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).

2

weakness in the upper extremity on his examination, no atrophy and no lack of grip strength.
Dr. Glenn also indicated that he did not find a biceps or triceps deficit. In a report dated
August 30, 2007, an Office medical adviser opined that Dr. Glenn did address the concerns of
Dr. Weiss and the Office could accept the opinion of Dr. Glenn that appellant had a two percent
arm impairment.
By decision dated November 16, 2007, the Office reviewed the medical evidence and
found that appellant was not entitled to more than a two percent permanent impairment to the
right arm.
LEGAL PRECEDENT
Section 8107 of the Act provides that, if there is permanent disability involving the loss
or loss of use of a member or function of the body, the claimant is entitled to a schedule award
for the permanent impairment of the scheduled member or function.3 Neither the Act nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4
It is well established that, when a case is referred to a referee physician for the purpose of
resolving a conflict under 5 U.S.C. § 8123(a), the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual and medical background, must be given special
weight.5
ANALYSIS
There was a conflict in the medical evidence between Dr. Weiss and an Office medical
adviser regarding the degree of permanent impairment to the right arm as a result of the
employment-related conditions. The referee physician, Dr. Glenn, provided a rationalized
medical opinion based on a complete background. He provided a detailed report and explained
that his physical examination did not establish any motor weakness or loss of strength resulting
in a permanent impairment. As to sensory deficit, Dr. Glenn properly identified Table 16-15,
which provides for a maximum of a seven percent permanent impairment for sensory deficit/pain
in the ulnar nerve above the midforearm.6 The impairment is then graded under Table 16-10
based on the severity of the impairment.7 Dr. Glenn graded the impairment as a Grade 4

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

6

A.M.A., Guides 492, Table 16-15.

7

Id. at 482, Table 16-10.

3

impairment,8 or 25 percent of the maximum 7 percent. An Office medical adviser concurred
with the opinion of Dr. Glenn. In his August 17, 2006 report, Dr. Glenn reiterated that his
findings did not establish any additional impairment. He noted the issues raised by Dr. Weiss in
the June 6, 2006 report, and explained why his examination findings did not result in an
additional impairment.
The Board finds that Dr. Glenn’s opinion represents the weight of the evidence.
Dr. Glenn provided a rationalized opinion based on his examination, medical records and the
appropriate tables of the A.M.A., Guides. Dr. Glenn’s report is entitled to special weight in this
case. There is no probative evidence of a greater impairment of the right arm.
CONCLUSION
The weight of the medical evidence was represented by the referee physician Dr. Glenn
and did not establish more than a two percent right upper extremity permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2007 is affirmed.
Issued: November 12, 2008
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

8

Grade 4 is described as “distorted superficial tactile sensibility (diminished light touch), with or without
minimal abnormal sensations or pain, that is forgotten during activity.” Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Pomona, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-807
Issued: September 7, 2007

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 1, 2007 appellant filed a timely appeal from an October 30, 2006 decision of
the Office of Workers’ Compensation Programs, denying her claim for an emotional condition.
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’s claimed emotional condition is causally related to a
compensable factor of her employment.
FACTUAL HISTORY
On March 12, 2004 appellant, then a 37-year-old letter carrier, filed an emotional
condition claim alleging that she developed anxiety, depression and an adjustment disorder
caused by harassment at work. She alleged that on May 30, 2000 Jesse Dominguez, a
supervisor, told Carrier Sandy Chaffin that she must work additional overtime because of people
that “can’t even do their jobs” and pointed toward appellant. Appellant shouted and cursed at

Mr. Dominguez. She received a letter of warning that was subsequently reduced to an official
discussion following Equal Employment Opportunity (EEO) mediation.1 Management did not
offer appellant a light-duty assignment between June 8 and July 3, 2003 due to her medical
condition2 although she was medically released to return to work.3 On July 31, 2003 Postmaster
Jerry Salas called a general meeting. He glanced at appellant and said, “I know we have a lot of
light-duty carriers in this office, but for those employees that are working hard to get the mail out
I would like to show my appreciation by serving you breakfast burritos.”4 Mr. Dominguez
assigned appellant to work inside or sent her home when there was work available outside that
was being assigned to part-time flexible and casual employees. On several occasions
management assigned overtime work to other employees that appellant felt should be provided to
her as part of her light-duty work.5 Appellant was sent home from work in April 2003 to obtain
medical evidence clarifying her ability to work inside. Mr. Salas told her that the only personal
matters that should cause her stress would be a death or sudden financial problems and that he
would terminate her if her work did not improve. On one occasion, when appellant returned
from medical leave, Mr. Salas and Mr. Dominguez laughed and made comments while looking
in appellant’s direction. She alleged that she was given work which exceeded her medical
restrictions. Appellant submitted medical evidence in support of her claim.
On April 22, 2004 the Office asked appellant to provide additional evidence regarding
her allegations of harassment, including dates, locations, names of individuals involved and what
occurred.
In a November 3, 2004 statement regarding an EEO complaint filed by appellant,
Mr. Dominguez stated that in May 2003 he understood that appellant’s medical restrictions
included driving in a Long Life Vehicle (LLV) for up to two hours a day. There were no LLV’s
available to assign to her because they had been assigned to other routes where the vehicles were
needed for five hours or more. It would have been inefficient to require a carrier to loan an LLV
to appellant for two hours and then complete his or her route when appellant was finished with
1

A July 28, 2000 mediation settlement agreement reduced the letter of warning to an official discussion. There
was no finding of wrongdoing or discrimination by the employing establishment.
2

Appellant developed work-related foot conditions, bilateral plantar fasciitis, bilateral plantar tendinitis and
overuse syndrome in 1997. Dr. William C. Landrey, her attending podiatrist, provided work restrictions from 1997
to 2006. He advised in January 2006 that appellant stay off work pending foot surgery because she had experienced
pain and swelling in her feet with previous returns to work, even part time. Dr. Landrey reviewed a modified job
offer provided by the Office on January 26, 2006 and opined that appellant could perform this job.
3

An August 19, 2003 decision of an employing establishment Dispute Resolution Team found that management
violated the union contract by delaying appellant’s return to work between June 5 and July 3, 2003. However, the
Team noted that there are conflicting medical reports as to whether she was able to return to work on June 5, 2003.
4

An October 15, 2003 decision of the Dispute Resolution Team found the comments of Mr. Salas to be
inappropriate but did not rise to the level of a violation of the Joint Statement on Violence and Behavior in the
Workplace.
5

An August 25, 2003 decision of the Dispute Resolution Team declared an impasse because the case contained
no interpretative issue under the union contract which was of general application. However, appellant and the union
were advised of their right to appeal the grievance through arbitration.

2

the vehicle. When delivery work was not available to appellant, she was given the option of
completing her shift by casing mail.
Don Ballard, a union steward, stated that on March 4, 2004 he witnessed a dispute
between appellant and Supervisor Jaime Abner concerning her route assignment. Appellant
complained that she was treated unfairly and was advised by Mr. Ballard to discuss the matter
with Supervisor Renee Sarpee, who subsequently assigned appellant to the route she had
requested. Mr. Ballard stated that he attended a July 8, 2004 meeting with Postmaster Art
Cardenas, Ms. Sarpee and appellant. Appellant was upset that Mr. Dominguez “illegally”
changed her assignment for the day.6 She requested a transfer from Mr. Dominguez’ section,
where she worked one day a week. Appellant alleged that Mr. Dominguez sought to retaliate
against her because she had filed an EEO claim against him and a compensation claim that
involved him. Mr. Ballard indicated that appellant provided accounts of incidents of
mistreatment by Mr. Dominguez.7 Mr. Cardenas denied her request to stop working for
Mr. Dominguez.
By decision dated January 24, 2005, the Office denied appellant’s claim on the grounds
that the evidence did not establish that her emotional condition was causally related to a
compensable factor of employment.
By letter postmarked February 25, 2005, appellant requested an oral hearing. On May 3,
2005 the Office denied her request for a hearing on the grounds that it was not timely submitted
within 30 days of the January 24, 2005 decision. The Office exercised its discretion and
determined that the issue in the case could be addressed equally well through a reconsideration
request and the submission of additional evidence.
Appellant requested reconsideration. By decision dated November 7, 2005, the Office
denied modification of the May 3, 2005 decision.
Appellant requested reconsideration. In a January 10, 2006 report, James F. Skalicky,
Ph.D., a licensed clinical psychologist, diagnosed an acute anxiety disorder caused by her
employment. He stated that appellant had experienced difficulty performing her work duties
because of her accepted foot conditions which caused chronic pain and emotional distress.
Dr. Skalicky found her to be totally disabled. By decision dated October 30, 2006, the Office
denied modification of the November 7, 2005 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 employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
6

No details were provided regarding this allegation.

7

Mr. Ballard did not provide details of these incidents.

3

reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.8 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.9
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.10
Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.11 The fact that a claimant has
established compensable factors of employment does not establish entitlement to compensation.
The employee must also submit rationalized medical opinion evidence establishing that he or she
has an emotional condition that is causally related to the compensable employment factor.12 The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific compensable
employment factors identified by the claimant.13
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship and which are not deemed compensable factors
of employment and may not be considered.14 When a claimant fails to implicate a compensable
factor of employment, the Office should make a specific finding in that regard. If a claimant
does implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.15 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.16 As a rule, allegations
8

5 U.S.C. §§ 8101-8193.

9

Lillian Cutler, 28 ECAB 125 (1976).

10

Michael Thomas Plante, 44 ECAB 510 (1993).

11

Joel Parker, Sr., 43 ECAB 220 (1991).

12

James W. Griffin, 45 ECAB 774 (1994).

13

Donna Faye Cardwell, 41 ECAB 730 (1990).

14

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

15

Margaret S. Krzycki, 43 ECAB 496 (1992).

16

See Charles D. Edwards, 55 ECAB 259 (2004).

4

alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.17
ANALYSIS
The Board finds that appellant has not established a compensable factor of employment
under the Act.
Several allegations made by appellant concern personnel or administrative matters. The
Board has held that an administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.18 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.19 Appellant
alleged that on May 30, 2000 Mr. Dominguez told Ms. Chaffin that she must work additional
overtime because of people that “can’t even do their jobs” and pointed toward appellant. She
responded by shouting and cursing at Mr. Dominguez. Appellant received a letter of warning
that was subsequently reduced to an official discussion in a mediation settlement agreement.
There was no finding of wrongdoing or discrimination by employing establishment personnel in
the settlement agreement. The mere fact that personnel actions were later modified or rescinded
does not, in and of itself, establish error or abuse.20 There is insufficient evidence of error or
abuse in the handling of the letter of warning. Therefore, this allegation is not deemed a
compensable factor of employment.
Appellant alleged that management did not offer her a light-duty assignment between
June 8 and July 3, 2003 although she was medically released to return to work. The Dispute
Resolution Team’s August 19, 2003 decision found that management was at fault in delaying
appellant’s return to work and she was retroactively reimbursed for time lost from work.
However, the decision noted that there were conflicting medical documents regarding appellant’s
ability to work. The evidence did not establish that appellant could return to work safely or that
management refused to allow her to return to work once she was medically released for duty. As
appellant had medical conditions requiring work limitations and there were conflicting medical
documents regarding her capacity for work, management did not act unreasonably in waiting to
return appellant to work until her medical situation was clarified. Therefore, this allegation is
not deemed a compensable factor of employment.
Appellant alleged that Mr. Dominguez assigned her to work inside or sent her home
when there was work available outside that was being assigned to other employees.
Mr. Dominguez stated that appellant’s medical restrictions included driving no more than two
hours a day in an LLV. None of these vehicles was available for her to use because they had
17

See Charles E. McAndrews, 55 ECAB 711 (2004).

18

Charles D. Edwards, supra note 16.

19

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

20

Michael Thomas Plante, supra note 10.

5

been assigned to other routes where the vehicles were needed for five hours or more. It was
deemed inefficient to require a carrier to loan his or her vehicle to appellant for two hours and
then complete his or her route when appellant was done with the vehicle. When delivery work
was not available to appellant she was given the option of completing her shift by casing mail.
The assignment of work is an administrative function of a supervisor. There is insufficient
evidence that Mr. Dominguez acted abusively in making work assignments. The Board finds
that appellant has not submitted sufficient evidence to show that the employing establishment
committed error or abuse with respect to this administrative matter. Thus, appellant has not
established a compensable employment factor under the Act in this regard.
Appellant alleged that Ms. Abner treated her unfairly regarding a route assignment.
Mr. Ballard stated that he witnessed this dispute. He advised her to discuss the matter with
Ms. Sarpee who subsequently assigned appellant to the route she had requested. Appellant’s
complaint regarding her route assignment was resolved in her favor. However, the fact that two
supervisors disagreed over a route assignment does not establish abuse. Therefore, this
allegation is not deemed a compensable employment factor.
Appellant alleged that she was unfairly denied a transfer from Mr. Dominguez’ section
where she worked one day a week. However, the assignment of work locations is an
administrative function of management. Mr. Ballard stated that appellant provided accounts of
incidents of mistreatment by Mr. Dominguez. However, he did not provide any specific details
of these alleged incidents of abuse. There is insufficient evidence of error or abuse in
management’s denial of appellant’s request for a transfer. Therefore, this allegation is not
deemed a compensable employment factor.
Appellant alleged that on July 31, 2003 Mr. Salas harassed her regarding her light-duty
status. To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute a compensable employment
factor.21 Mr. Salas called a meeting, glanced at appellant and announced, “I know we have a lot
of light-duty carriers in this office, but for those employees that are working hard to get the mail
out I would like to show my appreciation by serving you breakfast burritos.” The Dispute
Resolution Team’s decision found this remark to be inappropriate. However, Mr. Salas did not
single out appellant by name. The evidence is insufficient to establish that Mr. Salas’ comment
was abusive. Mere perceptions of harassment or discrimination are not compensable under the
Act. Appellant’s burden of proof is not discharged with allegations alone. She must support her
charges with probative and reliable evidence.22 There is insufficient evidence to establish that
Mr. Salas’ remark rose to the level of abuse. Therefore, this allegation is not deemed a
compensable employment factor.
The Board finds that certain allegations made by appellant are not established as factual.
Appellant alleged that she was sent home from work in April 2003 to obtain medical evidence
clarifying her ability to work inside. She submitted insufficient evidence to establish that this
21

Id.

22

Cyndia R. Harrill, 55 ECAB 522 (2004).

6

occurred. Even if this allegation was established to be factual, it would be an administrative
matter requiring evidence of error or abuse to be a compensable factor. Appellant alleged that
Mr. Salas told her that the only personal matters that should cause her stress would be a death or
sudden financial problems and that he would terminate her if her work did not improve. She
provided no evidence to support this allegation. Therefore, it cannot be deemed a compensable
employment factor. Appellant alleged that on one occasion, when she returned from medical
leave, Mr. Salas and Mr. Dominguez laughed and made comments while looking in appellant’s
direction. Even if this allegation was established as factual, she did not indicate what comments
were made and how they were abusive.
Appellant alleged that she was given work which exceeded her medical restrictions. The
Board has held that being required to work beyond one’s physical limitations may constitute a
compensable employment factor if such activity was substantiated by the record.23 The record
indicates that management assigned appellant to appropriate light-duty work due to her foot
conditions. There is insufficient evidence that the employing establishment required appellant to
perform work that was beyond her physical limitations. Therefore, this allegation is not deemed
a compensable factor of employment.
For the foregoing reasons, appellant has not established a compensable employment
factor under the Act. Therefore, she has not met his burden of proof in establishing that she
sustained an emotional condition in the performance of duty.24
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to compensable
factors of employment.

23

Diane C. Bernard, 45 ECAB 223 (1993).

24

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2006 is affirmed.
Issued: September 7, 2007
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

8