United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 21-1278
Issued: March 29, 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 August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

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 OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

3

described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and the accepted September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

4

that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

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OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

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regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1554
Issued: December 14, 2012

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 July 12, 2012, through her attorney, appellant filed a timely appeal of a July 9, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease 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 her burden of proof to establish that she sustained
bilateral carpal tunnel syndrome in the performance of duty.
On appeal, counsel asserts that the report of an attending physician is sufficient to
establish causal relationship of the claimed condition to work factors. Alternatively, he asserts
that the physician’s opinion is of sufficient probative quality to warrant a second opinion referral.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 23, 2011 appellant, then a 52-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that, on or before March 16, 2011, she
sustained bilateral carpal tunnel syndrome due to lifting trays of mail and repetitive hand motion
at work. She noted a prior occupational right arm injury diagnosed as tendinitis.2
In an April 11, 2011 report, Dr. Barry Kenneally, Board-certified in family practice and
sports medicine, diagnosed bilateral carpal tunnel syndrome and right-sided cervical
radiculopathy.3 In an April 21, 2011 report, Dr. Donald Fox, an attending internist, noted
treating appellant since March 22, 2011 for bilateral carpal tunnel syndrome, cervical
radiculopathy and pinched nerves. He held her off work from March 21 to April 29, 2011.
In a May 9, 2011 letter, OWCP advised appellant of the evidence needed to establish her
claim, including a narrative report from her attending physician explaining how and why factors
of her federal employment would cause the claimed bilateral carpal tunnel syndrome. Appellant
was afforded 30 days to submit such evidence.
In response, appellant submitted a statement describing her duties beginning in
January 1994, including sorting mail, operating sorting equipment and placing mail in trays or
bins. She provided a November 22, 2011 note from Dr. Fox, who diagnosed carpal tunnel
syndrome and limited her lifting to 10 pounds. Appellant also submitted medical reports related
to prior compensation claims.4
By decision dated June 24, 2011, OWCP denied the claim finding that causal relationship
was not established. It found that appellant submitted insufficient medical evidence to establish
that her bilateral carpal tunnel syndrome was causally related to work factors of sorting and
processing mail.
In a June 10, 2012 letter appellant, through counsel, requested reconsideration. He
submitted a detailed description of her job duties sorting mail and loading equipment, which
entailed repetitive grasping and reaching with both arms, twisting and turning both wrists and
lifting sacks of mail weighing 70 pounds. Appellant noted that an August 1994 traumatic injury
was accepted under File No. xxxxxx858 for tendinitis of the right wrist, a May 3, 1999 lumbar
strain accepted under File No. xxxxxx619, bilateral epicondylitis accepted under File
2

In a May 2, 2011 letter, appellant posited that the claimed condition developed concurrently with a prior neck
injury under File No. xxxxxx004. She submitted November 2008 and July 2009 reports regarding tendinitis of the
neck and right shoulder. File No. xxxxxx004 is not before the Board on the present appeal.
3

A March 28, 2011 electromyogram (EMG) and nerve conduction velocity (NCV) studies showed bilateral C5,
C7 and C8 radiculopathy and mild bilateral carpal tunnel syndrome, right greater than left, with no evidence of ulnar
nerve entrapment.
4

In a December 15, 1994 report, Dr. Donald Parks, an attending family practitioner, diagnosed right wrist
tendinitis necessitating work restrictions. A November 5, 2009 neck x-ray showed degenerative changes at C5-6
unchanged from prior studies. In a September 14, 2010 note, Dr. Azad Khan, an attending internist, held appellant
off work due to a neck injury. An April 14, 2011 magnetic resonance imaging (MRI) scan showed mild disc
bulging and central spinal stenosis at C4-5, C5-6 spondylosis with right neural foraminal encroachment and a
suspected central disc herniation and disc generation at T1.

2

No. xxxxxx314 sustained on or before February 10, 2001 and a November 2007 traumatic neck
injury accepted under File No. xxxxxx004.5 Appellant was placed in a modified job under the
National Reassessment Process in 2011.6
In a May 21, 2012 report, Dr. Richard I. Zamarin, a Board-certified orthopedic surgeon to
whom appellant was referred by counsel, reviewed the medical evidence of record. He provided
a detailed account of appellant’s duties as a mail sorter. On examination, Dr. Zamarin noted
tenderness to palpation of the cervical spine, 5/5 strength in all muscle groups of the upper
extremities, intact sensation in both hands, negative Phalen’s and Tinel’s signs bilaterally,
limited lumbar motion and bilaterally positive patellofemoral grind tests. Based on his
examination and review of the record, he diagnosed chronic neck pain with aggravation of
underlying degenerative disc disease and “more likely than not, a herniated disc at C5-6,
paresthesias in both arms “more likely than not secondary to radiculopathy and/or carpal tunnel
syndrome,” chronic back pain and bilateral patellofemoral pain syndrome. Dr. Zamarin opined
that appellant’s work duties, consisting of walking on concrete floors, reaching, bending, lifting
trays, and pushing and pulling heavy equipment had resulted over the years in these conditions.
He recommended that appellant seek a rheumatologic evaluation for the possibility of the
diagnosis of fibromyalgia.
By decision dated July 9, 2012, OWCP denied modification of the June 24, 2011 decision
on the grounds that the evidence submitted in support of appellant’s request was insufficient to
establish her burden of proof. It found that Dr. Zamarin did not explain how and why the
identified work factors caused the claimed bilateral carpal tunnel syndrome.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8

5

Appellant’s prior claims are not before the Board on the present appeal.

6

Appellant also submitted diagnostic studies. November 11, 2009 EMG and NCV studies showed bilateral
median nerve abnormalities at the level of the carpal tunnel. A September 2, 2011 whole body MRI scan showed
widespread joint degeneration and L5 degenerative changes.
7

Joe D. Cameron, 41 ECAB 153 (1989).

8

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

3

An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.9 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed;
(2) factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
An award of compensation may not be based on appellant’s belief of causal
relationship.11 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.12
ANALYSIS
Appellant claimed that she sustained bilateral carpal tunnel syndrome due to repetitive
hand motions at work. OWCP requested that she provide medical evidence supporting a causal
relationship between those work factors and the claimed condition. Appellant provided two
reports from Dr. Fox, an attending internist, diagnosing bilateral carpal tunnel syndrome. OWCP
denied the claim on June 24, 2011 as the medical evidence did not establish a causal relationship
between repetitive hand motions and lifting at work and bilateral carpal tunnel syndrome.
On reconsideration, appellant submitted a May 21, 2012 report from Dr. Zamarin, a
Board-certified orthopedic surgeon, who examined her at counsel’s request. Dr. Zamarin stated
that the paresthesias appellant experienced in her arms and hands were “more likely than not
9

20 C.F.R. § 10.5(q).

10

Solomon Polen, 51 ECAB 341 (2000).

11

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Id.

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secondary to radiculopathy and/or carpal tunnel syndrome” but that fibromyalgia should also be
considered. His diagnosis of carpal tunnel syndrome is thus equivocal, as Dr. Zamarin offered
several possible causes for appellant’s symptoms. The indefinite, speculative nature of
Dr. Zamarin’s opinion greatly diminishes its probative value.13 Also, he did not explain the
pathophysiologic interplay between the previously accepted upper extremity conditions and the
present claim. Although Dr. Zamarin opined that walking, reaching, bending, pulling and
pushing at work caused a variety of musculoskeletal conditions, he did not explain how and why
any of these activities would cause or contribute to the claimed carpal tunnel syndrome.
Therefore, his opinion contains insufficient medical rationale to establish causal relationship.14
The Board notes that appellant was advised by May 9, 2011 letter of the necessity of
submitting medical evidence explaining how and why work factors would cause or contribute to
the claimed carpal tunnel syndrome. Appellant did not submit such evidence. Therefore, she
failed to meet her burden of proof in establishing causal relationship.
On appeal, counsel asserts that Dr. Zamarin’s opinion is sufficient to establish causal
relationship. Alternatively, he contends that Dr. Zamarin’s report is of sufficient probative value
to warrant a second opinion referral. As stated, Dr. Zamarin did not provide sufficient medical
rationale to establish appellant’s claim. Also, his opinion is too speculative to warrant additional
development.
CONCLUSION
The Board finds that appellant has not established that she sustained bilateral carpal
tunnel syndrome in the performance of duty.

13

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006) (a medical report is of limited probative value on the issue
of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
14

Deborah L. Beatty, 54 ECAB 340 (2003) (medical reports not containing rationale on causal relationship are
entitled to little probative value).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2012 is affirmed.
Issued: December 14, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGMENT COMMAND,
East Hartford, CT, Employer
__________________________________________

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

Docket No. 18-1763
Issued: October 10, 2019

Case Submitted on the Record

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

JURISDICTION
On September 20, 2018 appellant filed a timely appeal from a March 27, 2018 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 to consider the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $15,483.59 for the period April 1, 2013 through
December 9, 2017; (2) whether it properly determined that appellant was at fault in the creation of
the overpayment, thereby precluding waiver of recovery of the overpayment; and (3) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

OWCP properly directed recovery of the overpayment by deducting $200.00 every 28 days from
appellant’s continuing compensation.
FACTUAL HISTORY
On August 1, 1994 appellant, then a 43-year-old supply clerk, filed a traumatic injury claim
(Form CA-1) alleging that on July 22, 1994 he injured his back when putting together a box while
in the performance of duty. He stopped work on September 1, 1994. OWCP accepted the claim
for lumbago and degeneration of a lumbar or lumbosacral intervertebral disc. (ICD) It initially
paid appellant wage-loss compensation on the supplemental rolls. OWCP placed him on the
periodic rolls as of January 6, 1998.
In a letter dated March 1, 2013, OWCP notified appellant that he was approaching his 62nd
birthday, the minimum age at which he was eligible to receive Social Security Administration
(SSA) retirement benefits. It notified him that his continuing FECA compensation benefits must
be reduced if he were to begin receiving SSA retirement benefits based upon his age and federal
service. OWCP further advised that failure to report receipt of such retirement benefits to OWCP
could result in an overpayment of compensation, which could be subject to recovery.
In a memorandum of telephone call (Form CA-110) dated March 6, 2013, appellant
indicated that he would start receiving monthly SSA age-based benefits of $600.00 beginning
March 23, 2013.
On October 19, 2017 the SSA advised OWCP that appellant had concurrently received
FECA benefits and SSA retirement benefits through the Federal Employees Retirement System
(FERS) beginning April 2013. It provided the amount that he had received in retirement benefits,
including the amount earned through FERS, and the hypothetical amount that he would have
received without FERS. Including FERS, appellant was entitled to a monthly SSA rate of :
$635.00, effective April 2013; $645.00 effective December 2013, $655.90, effective
December 2014; $655.90, effective December 2015; $657.90, effective December 2016; and
$671.00, effective December 2017.
SSA further advised that without FERS, appellant would have been entitled to a monthly
SSA rate of: $292.20, effective April 2013; $296.90 effective December 2013, $301.80, effective
December 2014; $301.80, effective December 2015, $302.70 effective December 2016; and
$308.80, effective December 2017.
By letter dated December 13, 2017, OWCP advised appellant that it had adjusted his
compensation benefits to offset the portion of his SSA retirement benefits attributable to his federal
service. It informed him that he would receive net compensation of $1,761.66 every 28 days.
OWCP completed a FERS offset calculation form on December 13, 2017. It determined
the 28-day FERS offset amount for the days in each period and computed a total overpayment of
$15,483.59.
In a preliminary determination dated January 18, 2018, OWCP notified appellant that he
had received an overpayment of compensation in the amount of $15,483.59, because it had failed
to reduce his wage-loss compensation benefits for the period April 1, 2013 through December 9,
2

2017 by the portion of his SSA benefits that were attributable to his federal service. It calculated
the overpayment amount by determining the difference between his SSA amount with and without
FERS for each period and adding these amounts to find a total overpayment of $15,483.59.
OWCP further advised appellant of its preliminary determination that he was at fault in the
creation of the overpayment because he accepted a payment that he knew, or reasonably should
have known, was incorrect. It explained that if he was unable to pay the full overpayment amount,
he should complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documentation, so that OWCP could determine a fair repayment
method. Additionally, OWCP notified appellant that, within 30 days of the date of the letter, he
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
By letter dated January 23, 2018, appellant responded to the preliminary determination.
He denied that he was aware of the overpayment issue, and explained that he would have corrected
the matter had he been aware. Appellant completed the overpayment recovery questionnaire
(Form OWCP-20) and advised that he had monthly income of $2,810.00, and monthly expenses
of approximately $1724.00. He did not provide evidence documenting his expenses.3
By decision dated March 27, 2018, OWCP found that appellant had received an
overpayment of wage-loss compensation in the amount of $15,483.59, for the period April 1, 2013
through December 9, 2017 because his compensation payments were not offset by the portion of
his SSA age-related benefits attributable to his federal service. It found that he was at fault in the
creation of the overpayment because he accepted wage-loss compensation to which he was not
entitled, and determined that it would recover the overpayment by deducting $200.00 every 28
days from appellant’s continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 However, section 8116 also 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
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.6 FECA Bulletin No. 97-09 states 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
3

Appellant also requested a pre-recoupment hearing. However, he contacted OWCP via telephone on March 26,
2018, and explained that he mistakenly checked the option for a prerecoupment hearing and did not wish to pursue
this option.
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

3

is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit. 7
Section 404.310 of SSA regulations provides that entitlement to SSA age-based benefits
begins at 62 years of age. 8
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision. 9 These
procedures note that, if the claimant is determined to be with fault, a Form CA-2201 (preliminary
finding notice) must be released (along with a Form OWCP-20) within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of fault must be clearly stated. A Form CA-2201 informs the claimant of the right to
submit evidence and the right to a prerecoupment hearing on the issue of: (a) fact and amount of
overpayment; (b) fault; and (c) waiver of recovery of the overpayment. Along with the Form CA2201, OWCP should provide a clearly written statement explaining how the overpayment was
created.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of wage-loss compensation in the amount of $15,483.59, for the period April 1, 2013
through December 9, 2017.
Beginning April 1, 2013, appellant received age-related retirement benefits from SSA,
while he continued to receive FECA wage-loss compensation. As noted, a claimant cannot receive
concurrent compensation for wage loss and SSA retirement benefits attributable to federal service
for the same period. 11
The Board finds however that OWCP failed to follow its own procedures in issuing the
March 27, 2018 overpayment decision.12 As noted, OWCP’s procedures provide that a Form CA2201 (preliminary finding notice) must be released along with an OWCP-20 within 30 days of the
date the overpayment is identified.13

7

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

8

20 C.F.R. § 404.310.

9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).
10

Id.; see also P.H., Docket No. 18-1539 (issued August 2, 2019).

11

See supra note 7; D.M., Docket No. 17-0983 (issued August 3, 2018).

12

P.H., Docket No. 18-1539 (issued August 2, 2019).

13

Supra note 10.

4

OWCP was notified by SSA in a form dated October 19, 2017 that appellant had
concurrently received FECA benefits and SSA age-based benefits with a FERS component since
April 2013. SSA informed OWCP of the amounts of SSA benefits appellant was entitled to receive
with the FERS component, and without, during the period April 1, 2013 through
December 9, 2017. However, OWCP did not issue a preliminary notice regarding the
overpayment until January 18, 2018. This preliminary notice was therefore not issued within 30
days after the overpayment was identified.
The Board concludes that OWCP did not follow its own procedures and did not issue a
preliminary notice of overpayment within 30 days of identifying an overpayment based upon
appellant’s receipt of SSA age-based benefits.14
CONCLUSION
The Board finds that OWCP failed to follow its established procedures in determining that
appellant received an overpayment of compensation in the amount of $15,483.59 during the period
April 1, 2013 through December 9, 2017.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 10, 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

14

Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of fault,
waiver and recovery are moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 08-597
Issued: June 19, 2008

Case Submitted on the Record

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

JURISDICTION
On December 20, 2007 appellant timely appealed the April 11, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied his occupational disease claim. He
also timely appealed the Office’s September 19, 2007 nonmerit decision that found he
abandoned his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty; and
(2) whether appellant abandoned his request for an oral hearing.
FACTUAL HISTORY
Appellant, a 54-year-old letter carrier, filed an occupational disease claim (Form CA-2)
for right ankle pain. He identified December 22, 2006 as the date of injury. Appellant attributed
his condition to “wear and tear” from constant walking up and down steps, streets and sidewalks.
On December 22, 2006 he was treated in the Providence Hospital emergency department and

received a diagnosis of right ankle tendinitis. The reported history of illness was “right ankle
pain, no trauma, started while at work carrying mail.” Physical examination revealed mild fibula
swelling of the right foot. An x-ray demonstrated “no fracture.” Appellant was released later
that evening and advised to follow up with the hospital’s Wellness Institute in two to three days.
When he visited the Wellness Institute on January 3, 2007, he received limited-duty work
restrictions for a five-day period beginning January 4, 2007. Appellant was advised to return for
a follow-up examination on January 8, 2007.
In a decision dated April 11, 2007, the Office denied appellant’s December 22, 2006
claim for a right ankle injury. It found that the evidence did not establish that the claimed
medical condition was employment related.
Additionally, the Office noted that the
December 22, 2006 emergency department treatment records were insufficient to meet
appellant’s burden because they were not signed by a physician.
On May 6, 2007 appellant requested an oral hearing. The Branch of Hearings and
Review acknowledged receipt of appellant’s hearing request by letter dated May 16, 2007. And
on July 25, 2007 the Branch of Hearings and Review issued a notice advising appellant that an
informal hearing was scheduled for September 4, 2007.
Both the May 16, 2007
acknowledgement and the July 25, 2007 hearing notice were sent to appellant’s address of
record, the same address where the Office previously mailed the April 11, 2007 decision.
By decision dated September 19, 2007, the Branch of Hearings and Review found that
appellant abandoned his request for a hearing. The decision noted that a hearing was scheduled
for September 4, 2007 and appellant had been provided a 30-day advance written notice of the
hearing. However, he did not attend the scheduled hearing and did not provide an explanation
for his absence. Based on these factors, the Office concluded that appellant had abandoned his
hearing request.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2

1

5 U.S.C. §§ 8101-8193 (2000).

2

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

2

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.3
ANALYSIS -- ISSUE 1
The Office denied appellant’s claim because the record did not establish that his
diagnosed right ankle tendinitis was employment related. Additionally, it indicated that the
December 22, 2006 emergency department treatment records had not been signed by a physician.
This latter finding is incorrect. While appellant was examined by a physician assistant on
December 22, 2006, the examination results and diagnosis were subsequently reviewed and
“electronically co-signed” by Dr. Ramola S. Abhyankar. Absent Dr. Abhyankar’s endorsement,
the physician assistant’s diagnosis would not suffice for purposes of establishing a medical
condition.4
Although a diagnosis of right ankle tendinitis has been established, the record does not
demonstrate that this condition is employment related. Other than noting appellant’s statement
that his right ankle pain started while at work carrying mail, the December 22, 2006 emergency
department treatment records do not include a specific finding regarding the etiology of
appellant’s condition. There is no documented opinion on causal relationship. Appellant stated
that he was advised in the emergency room that tendinitis was caused by constant walking and
repeated climbing and descending stairs. Notwithstanding what appellant was reportedly told by
the physician assistant, the current record does not establish a causal relationship between his
employment and his diagnosed right ankle condition. Accordingly, the Office properly denied
appellant’s occupational disease claim.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision on his claim is entitled, upon timely request, to a
hearing before a representative of the Office.5 Unless otherwise directed in writing by the
claimant, the Office hearing representative will mail a notice of the time and place of the oral
hearing to the claimant and any representative at least 30 days before the scheduled date.6 The
Office has the burden of proving that it mailed the claimant a notice of the date and time of the
scheduled hearing.7 Assuming proper notice has been provided by the Office, a hearing is
3

Victor J. Woodhams, supra note 2.

4

A physician assistant is not competent to render a medical opinion because he or she is not considered a
“physician,” as that term is defined under 5 U.S.C. § 8101(2). See, e.g., Roy L. Humphrey, 57 ECAB 238,
242 (2005).
5

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

6

20 C.F.R. § 10.617(b).

7

Nelson R. Hubbard, 54 ECAB 156, 157 (2002).

3

considered to have been abandoned when the following conditions have been met: (1) the
claimant has not requested a postponement; (2) the claimant has failed to appear at a scheduled
hearing; and (3) the claimant has failed to provide any notification for such failure within 10
days of the scheduled date of the hearing.8
ANALYSIS -- ISSUE 2
Appellant claims he missed the hearing because he did not receive notification that it was
scheduled for September 4, 2007. A copy of the July 25, 2007 hearing notice is included in the
record. The Branch of Hearings and Review sent the notice to appellant’s address of record,
which is the same P.O. Box number in Washington, DC that appeared on appellant’s claim form
and where the Office previously mailed the April 11, 2007 decision. This is also the same
address appellant used with respect to the filing of the current appeal.
In the absence of evidence to the contrary, it is presumed that a notice mailed in the
ordinary course of business was received in due course by the intended recipient.9 This
presumption is commonly referred to as the “mailbox rule.”10 It arises when the record reflects
that the hearing notice was properly addressed and duly mailed.11 The current record supports
invocation of the mailbox rule and appellant has not submitted any evidence to rebut the
presumption. Accordingly, the Board finds that the Branch of Hearings and Review provided
appellant timely notification of the hearing scheduled for September 4, 2007. Appellant did not
attend the hearing, he did not request postponement and he did not contact the Office within 10
days after the scheduled hearing. Therefore, all conditions necessary for a finding of
abandonment have been met.
CONCLUSION
Appellant has not established that he sustained an injury in the performance of duty.
Additionally, the Branch of Hearings and Review properly found that appellant abandoned his
request for an oral hearing.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
9

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

10

Id.

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 19 and April 11, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 07-234
Issued: March 22, 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 November 3, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 9, 2006 merit decision denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On September 7, 2004 appellant, a 47-year-old letter carrier, filed an occupational disease
claim, alleging “stress by management (mismanagement).” She first became aware that her
condition was caused by factors of employment on September 11, 2001. Appellant stated that
she filed a traumatic injury claim in September 2001, but that the claim had been lost by the
Office.

In support of her claim, appellant submitted an October 23, 2001 report from Burton C.
Fredenthal, Ph.D., a licensed psychologist, who provided diagnoses of major depression,
recurrent, moderate, acute stress disorder and work stress. He related appellant’s report that she
felt humiliated as a result of alleged harassment by her supervisor on September 11, 2001.
Dr. Fredenthal opined that methods of supervision, changing of job assignments and
misrepresentations of her job performance contributed to her depression. He stated that there
was “no doubt that the current depression and stress is related to the reported incident on
September 11, 2001.”
In a letter dated March 12, 2002, Dr. Bruce Camilleri, a Board-certified internist, stated that
appellant’s “sedimentation rate for general inflammation was slightly elevated.” A note dated
September 4, 2001 documented instructions given on that date to appellant, by Acting Manager
Susan Sederholm-Martin. The acting manager instructed appellant to “clock out” at 12:30 p.m.,
pursuant to her request for light duty, and advised her to provide updated medical
documentation.
In an October 28, 2002 statement, Carrier Jeanne Holifield stated that she had witnessed
harassment of appellant by Ms. Sederholm-Martin on a daily basis, sometimes several times per
day. She indicated that the supervisor had taken away all of appellant’s clerical duties, but had
failed to assign new duties. Ms. Sederholm-Martin followed appellant, “nick-picked” and
repeatedly asked her what she was doing. She instructed appellant to provide, at the end of each
day, a detailed accounting of everything she had done during the workday. Each day, when
appellant asked her for job assignments, the answer was the same, “nothing.” Ms. Holifield
stated that appellant felt intimidated by her supervisor’s behavior. At a meeting held to discuss
the type of medical documentation needed from appellant, Ms. Sederholm-Martin allegedly
stated, “[Appellant] only hears what she wants to hear.”
On October 6, 2004 the Office informed appellant that the information submitted was
insufficient to establish her claim. The Office advised her to submit details of alleged
employment incidents that caused or contributed to her emotional condition. The Office also
asked for a medical report containing a description of her symptoms, a diagnosis and an opinion
with medical reasons on the cause of her condition.
In a letter dated September 10, 2001, the employing establishment acknowledged
appellant’s allegation that she was not able to perform the duties of her job. The employing
establishment asked for a written request for light duty and updated medical documentation to
support her request. She submitted a November 21, 2001 letter from Dr. Bruce Soman, a treating
physician, who diagnosed adjustment disorder with depressed mood. He agreed with
Dr. Fredenthal’s conclusion that appellant’s supervisors made it hard for appellant to work due to
mismanagement. The record contains a September 11, 2001 request for a light-duty assignment,
signed by appellant.
In a November 1, 2004 narrative, appellant stated that she was sent home on September 11,
2001 by her acting manager. She contended that her supervisor’s mismanagement caused her
emotional stress, exacerbated her preexisting sarcoidosis and fibromyalgia. Appellant alleged
that she was “not treated with dignity and respect due to mismanagement skills.” Her acting
manager closely monitored and asked her to document her activities. Ms. Sederholm-Martin

2

informed appellant that she had been instructed to take her duties away from her, thereby
allowing her to “just show up and be harassed by other managers.” Appellant stated that her
emotional condition improved after she was moved to a different work environment.
In an August 21, 2001 work excuse, Dr. Kern A. Reid, a Board-certified internist, noted
that appellant was “off work” due to job-related stress until a psychological evaluation was
completed. An October 10, 2001 work excuse indicated that appellant was on “stress leave”
until she had undergone a psychological examination. In a note dated November 14, 2002,
Dr. Reid stated that he had advised appellant to remain off work from September 2001 through
May 2002, due to work-related stress and its deleterious effect on her chronic medical condition.
In a July 29, 2005 decision, the Office denied appellant’s claim. The Office found that
appellant had failed to establish a compensable factor of employment.
On July 20, 2006 appellant requested reconsideration, based on “new evidence of legal
argument through her EEO [Equal Employment Opportunity] and redress settlement.”1 The
record does not contain copies of the EEO and settlement documents.
By decision dated August 9, 2006, the Office denied modification of the July 29, 2005
decision, finding that appellant had failed to establish any compensable factors of employment.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.2
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 illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his or her regular or specially assigned
employment duties or to a requirement imposed by the employing establishment, the disability
comes within coverage of the Federal Employees’ Compensation Act.3 The same result is
reached when the emotional disability resulted from the employee’s emotional reaction to the
nature of her work or her fear and anxiety regarding her ability to carry out her duties.4 By
1

Although the Office referred to appellant’s EEO claim and settlement agreement, the record does not contain a
copy of those documents.
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

5 U.S.C. §§ 8101-8193.

4

Lillian Cutler, 28 ECAB 125, 129 (1976).

3

contrast, there are disabilities having some kind of causal connection with the employment that
are not covered under workers’ compensation law because they are not found to have arisen out
of employment, such as when disability results from an employee’s fear of a reduction-in-force
or frustration from not being permitted to work in a particular environment or to hold a particular
position.5 Moreover, although administrative and personnel matters are generally related to
employment, they are functions of the employer and not duties of the employee. Thus, the Board
has held that reactions to actions taken in an administrative capacity are not compensable unless
it is shown that the employing establishment erred or acted abusively in its administrative
capacity.6 Likewise, an employee’s dissatisfaction with perceived poor management is not
compensable under the Act.7
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 factors of employment, which may be considered by a physician when
providing an opinion on causal relationship and which are not deemed factors of employment
and may not be considered. 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.8 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.9 As a rule, allegations
alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.10
With regard to emotional claims arising under the Act, the term “harassment” as applied
by the Board is not the equivalent of harassment as defined or implemented by other agencies,
such as the EEO Commission, which is charged with statutory authority to investigate and
evaluate such matters in the workplace. Rather, in evaluating claims for workers’ compensation
under the Act, the term harassment is synonymous, as generally defined, with a persistent
disturbance, torment or persecution, i.e., mistreatment by coemployees or coworkers. Mere
perceptions and feelings of harassment will not support an award of compensation.11

5

Id. See also Peter D. Butt, Jr., 56 ECAB ___ (Docket No. 04-1255, issued October 13, 2004).

6

See Charles D. Edwards, 55 ECAB 258 (2004); see also Ernest J. Malagrida, 51 ECAB 287, 288 (2000).

7

Id.

8

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

9

See Charles D. Edwards, supra note 6.

10

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).
11

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

4

For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.12
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that her condition was caused or adversely affected by her employment.13
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.14
ANALYSIS
The Board finds that appellant has not established any compensable factors of employment
under the Act.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from appellant’s
performance of her regular duties, these could constitute employment factors.15 However, for
harassment or discrimination to give rise to a compensable disability under the Act, there must
be evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment
or discrimination are not compensable under the Act.16 In the present case, appellant has not
submitted sufficient evidence to establish her claim.17 She alleged that she was “not treated with
dignity and respect due to mismanagement skills.” Appellant contended that she was harassed
by other managers after her supervisor took her duties away from her. Her allegations alone are
insufficient to establish a factual basis for her claim.18 A coworker provided a statement to the
effect that she had witnessed harassment of appellant by her supervisor on a daily basis,
sometimes several times per day. She noted that appellant felt intimidated by the supervisor’s

12

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

13

See Charles D. Edwards, supra note 6.

14

Ronald K. Jablanski, 56 ECAB ___ (Docket No. 05-482, issued July 13, 2005). See also Dennis M.
Mascarenas, 49 ECAB 215, 218 (1997).
15

See Lori A. Facey, 55 ECAB 217 (2004). See also David W. Shirey, 42 ECAB 783, 795-96 (1991);
Kathleen D. Walker, 42 ECAB 603, 608 (1991).
16

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

17

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
18

See Charles E. McAndrews, supra note 10.

5

behavior. However, the statement did not identify specific instances of harassment in sufficient
detail to establish a factual basis for the claim. General allegations that appellant was treated
unfairly and disrespectfully by management are insufficient to establish that harassment did, in
fact, occur. Thus, the Board finds that appellant has not established a compensable employment
factor under the Act with respect to these above-described allegations of harassment and
discrimination.
The record reflects that appellant filed an EEO complaint. Grievances and EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.19 Where an employee alleges harassment and cites specific incidents, the Office or
other appropriate fact finder must determine the truth of the allegations. The issue is not whether
the claimant has established harassment or discrimination under EEO Commission standards.
Rather, the issue is whether the claimant, under the Act, has submitted sufficient evidence to
establish a factual basis for the claim by supporting his or her allegations with probative and
reliable evidence.20 Appellant has failed to do so in this case.
In the present case, appellant has not attributed her emotional condition to the
performance of her regular duties or to any special work requirement arising from her
employment duties under Cutler.21 She did not implicate her workload as having caused or
contributed to her emotional condition.
Appellant contended that her supervisor’s
mismanagement caused her emotional stress. She complained that she was sent home on
September 11, 2001 by her acting manager; that her supervisor closely monitored, and asked her
to document, her activities; and that her clerical duties were taken away from her. Appellant’s
coworker indicated that the supervisor took away all of appellant’s clerical duties, but had failed
to assign her new duties; “nick-picked;” and repeatedly asked her what she was doing. She
instructed appellant to provide, at the end of each day, a detailed accounting of everything she
had done during the workday. The Board finds that appellant’s allegations that her supervisors
improperly and otherwise unfairly modified and monitored her work assignments, relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties, and do not fall within the coverage of the Act.22 Although the handling of
disciplinary actions, the assignment of work duties and the monitoring of work activities are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.23 However, the Board has also found that an administrative or personnel
matter will be considered to be an employment factor where the evidence discloses error or
abuse on the part of the employing establishment. In determining whether the employing
19

See James E. Norris, supra note 12. See also Parley A. Clement, 48 ECAB 302 (1997).

20

See James E. Norris, supra note 12. See also Michael Ewanichak, 48 ECAB 354 (1997);

21

See Lillian Cutler, supra note 4.

22

See Lori A. Facey, supra note 15. See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44
ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260,
1266-67 (1988).
23

Id.

6

establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.24 The Board finds that appellant has not submitted sufficient
evidence to show that the employing establishment committed error or abuse with respect to
these matters. Thus, appellant has not established a compensable employment factor under the
Act with respect to administrative matters.
Appellant’s coworker stated that each day, when appellant asked her supervisor for job
assignments, the answer was the same, “nothing.” At a meeting held to discuss the type of
medical documentation needed from appellant, Ms. Sederholm-Martin allegedly stated,
“[Appellant] only hears what she wants to hear.” While the Board has recognized the
compensability of verbal abuse in certain situations, this does not imply, however, that every
statement uttered in the workplace will give rise to coverage under the Act.25 While the manner
and tone of appellant’s supervisors may have made appellant uncomfortable, the Board finds that
the alleged statements of the supervisor did not constitute verbal abuse or harassment.26 The
supervisor’s statements may have offended appellant, but did not rise to the level of coverage
under the Act. Moreover, the statement regarding appellant’s assigned duties relates to
personnel matters, which are not compensable unless abusive.
Appellant reported that she felt humiliated by her supervisor’s harassment. Her coworker
stated that appellant felt intimidated by the supervisor’s behavior. However, under the
circumstances of this case, the Board finds that appellant’s emotional reaction must be
considered self-generated, in that it resulted from her perceptions regarding her supervisors’
actions.27 Appellant also noted in her November 1, 2004 letter to the Office that her emotional
condition improved after she was moved to a different work environment. Her frustration from
not being permitted to work in a particular environment is not a compensable factor under the
Act.28
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.29

24

See Richard J. Dube, 42 ECAB 916, 920 (1991).

25

See Leroy Thomas, III, 46 ECAB 946, 954 (1995).

26

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

27

See David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

28

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

29

As appellant has not established any compensable employment factors, the Board need not consider the
medical evidence of record; see Margaret S. Krzycki, supra note 8.

7

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 factors of
employment.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 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


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Oxon Hill, MD, Employer
)
___________________________________________ )
R.B., Appellant

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0971
Issued: August 14, 2015

Case Submitted on the Record

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

JURISDICTION
On March 17, 2015 appellant, through counsel, filed a timely appeal from a December 9,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) merit decision.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on January 21, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 23, 2014 appellant, then a 59-year-old mail carrier, filed a traumatic injury
claim alleging that on January 21, 2014 he sustained an injury to his right knee when he slipped
and fell on steps while in the performance of duty. He stopped work on January 21, 2014.2
In a January 21, 2014 disability certificate, Dr. Craig Thomas, a Board-certified
orthopedic surgeon, indicated that appellant could return to work on January 25, 2014.
In a May 19, 2014 letter, OWCP advised appellant that additional factual and medical
evidence was needed. It explained that a physician’s opinion explaining how the reported work
incident caused or contributed to his condition was crucial to his claim.
Appellant submitted duty status reports dated January 27 and February 10, 2014 from
Dr. Thomas. Dr. Thomas found that appellant had a right knee rupture and patella tendon and
diagnosed “quad tendon rupture.” He noted that the diagnosis was due to the January 21, 2014
work injury. Dr. Thomas advised that his clinical findings included that appellant could not
extend the right knee, had pain and could not walk. Additionally, he indicated that appellant
could not work and was awaiting surgery to the right knee.
Appellant provided a June 29, 2014 statement in which he described the circumstances of
his injury. He advised that January 21, 2014 was a snowy day and he was delivering a package
when his left foot slipped on a customer’s front steps and his full body landed on his right knee.
Appellant explained that he fell backward and was in intense pain. He indicated that he saw
Dr. Thomas and diagnostic testing revealed that his right quadriceps tendon in the knee required
surgery. Appellant also noted that he was diabetic and that a delay in surgery could cause further
problems.
OWCP received a February 4, 2014 radiology report read by Dr. Krishna Chadhuri, a
diagnostic radiologist, which revealed a complete rupture of the quadriceps tendon and medial
patellar retinaculum, possible small cortical evulsion of the superior patella, and probable
contusion in the lateral femoral condyle. Additionally, the findings included high grade cartilage
fissuring and delamination in the patellar apex and central trochlear groove with possible flap
formation and equivocal medical meniscus posterior horn tear.
OWCP also received medical documentation to include discharge instructions dated
February 20, 2014. Additionally, a referral form dated January 31, 2014 contained several
diagnoses that included a ruptured patella tendon on the right knee.
By decision dated June 26, 2014, OWCP denied appellant’s claim as he did not establish
an injury as alleged. It found that the medical evidence did not demonstrate a claimed medical
condition related to established work-related events.
2

The record reflects that appellant has several claims that include a traumatic injury on July 1, 1996 under claim
No. xxxxxx820; a traumatic injury on June 19, 2008 under claim No. xxxxxx067; and an occupational disease claim
for an August 12, 2008 date of injury under claim No. xxxxxx102. These other claims are not presently before the
Board.

2

On September 6, 2014 appellant requested reconsideration.
submitting documentation to support causal relationship.

He noted that he was

In an August 6, 2014 report, Dr. Thomas noted that appellant was post status a workrelated injury involving his right knee while delivering mail on January 21, 2014. He advised
that appellant was seen in the emergency room that day and in his office on February 10, 2014.
Dr. Thomas indicated that appellant had surgery on February 20, 2014. He explained that the
diagnosed condition was consistent with appellant’s description of injury. Appellant related to
her that he fell while delivering mail and suffered immediate right knee pain and was unable to
fully extend his knee. He indicated that appellant “denied any other traumatic events in that
timeframe that would cause such a[n] injury.” Dr. Thomas advised that appellant’s quadriceps
tendon rupture was secondary to his work-related injury. Appellant underwent surgery with
rerupture of the quadriceps tendon, which required additional surgical management.
By decision dated December 9, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA,4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

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

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that on January 21, 2014 he sustained an injury to his right knee when
he slipped and fell on a customer’s front step while delivering a package in the performance of
duty. OWCP accepted that the claimed event occurred. Therefore, the Board finds that the first
component of fact of injury is established; the claimed incident -- that appellant was delivering a
package and slipped and fell on his right knee at work as alleged.
The Board notes that the medical evidence submitted by appellant generally supports that
he sustained a right knee quadriceps tendon rupture in the performance of duty on
January 12, 2014.
The record contains several reports from Dr. Thomas with the most relevant being an
August 6, 2014 report in which he noted that appellant was post status a work-related injury
involving his right knee while delivering mail on January 21, 2014. Dr. Thomas advised that
appellant was seen in the emergency room and in his office on February 10, 2014. He indicated
that appellant underwent surgery on February 20, 2014. Dr. Thomas explained that the injury
was consistent with appellant’s description of injury. He reported that appellant “denied any
other traumatic events in that timeframe that would cause such a[n] injury.” Dr. Thomas further
opined that appellant’s quadriceps tendon rupture was secondary to his work-related injury. He
advised that appellant underwent surgery with rerupture of the quadriceps tendon, which
required additional surgical management. The Board notes that Dr. Thomas also completed duty
status reports dated January 27 and February 10, 2014, saw appellant contemporaneous with the
injury, and opined that the diagnosis was due to the injury. Although Dr. Thomas’ reports are
not sufficiently rationalized to meet appellant’s burden of proof in establishing his claim, his
reports are uncontroverted in the record and are sufficient to require further development of the
case.10
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.11

9

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

10

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7 John W. Butler, 39 ECAB 852 (1988).
11

Id.

4

The Board will remand the case to OWCP for referral to an appropriate medical specialist
to determine the extent of any injury or aggravation of any preexisting conditions as a result of
his employment injury on January 21, 2014. Following this, and any other further development
as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.
On appeal counsel for appellant argues that the case should be remanded for additional
development as the evidence submitted by appellant supported further development. As found
above, the Board concurs.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: August 14, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-93
Issued: July 8, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from a September 30, 2009 decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly calculated appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
On May 10, 2008 appellant, then a 38-year-old electrician, sustained third-degree burns
to both upper extremities when he touched the wrong lead with an electric meter. He stopped
work that day and received wage-loss compensation. Appellant returned to four hours of light
duty on August 7, 2008, and worked intermittently through August 28, 2008. He was placed on

the periodic compensation rolls at the 3/4 augmented rate, based on a weekly pay rate of
$877.34, and has not returned to work.
On May 26, 2009 appellant advised the Office that his pay rate was incorrect because it
did not include premium pay.1 By letter dated June 3, 2009, the employing establishment
informed the Office that appellant’s weekly schedule included a 12-hour shift every Sunday and
night differential on a regular basis. On July 15, 2009 the employing establishment forwarded
appellant’s pay history for the period May 10, 2007 to May 12, 2008, including regular hours,
overtime and Sunday hours. By letter dated August 19, 2009, the Office informed appellant that
his compensation had been adjusted to reflect Sunday pay of $21.07 a week, yielding a new
weekly pay rate for compensation purposes of $898.41. He reviewed compensation for Sunday
premium pay.
In e-mails dated August 10 and 11, 2009, the employer noted that, while management
routinely required employees to work overtime, it was relayed verbally not in writing. In an
August 21, 2009 letter, the employing establishment informed the Office that appellant worked
overtime every pay period because it was short-handed. There was nothing in writing that
guaranteed the overtime work and, if an employee could not work overtime, the supervisor
would accommodate the restriction.
By decision dated September 30, 2009, the Office found that appellant was not entitled to
overtime pay pursuant to section 8114(e) of the Federal Employees’ Compensation Act.2
LEGAL PRECEDENT
Section 8101(4) of the Act defines “monthly pay” for purposes of computing
compensation benefits as follows: the monthly pay at the time of injury, or the monthly pay at
the time disability begins, or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.3 In an occupational disease claim, the
date of injury is the date of last exposure to the employment factors, which caused or aggravated
the claimed condition.4 In computing pay rate, section 8114(e) provides for the inclusion of
certain “premium pay” received, and where the evidence indicates additional amounts received
in Sunday or night differential pay fluctuated or may have fluctuated, the Office determines the
amount of additional pay received during the one-year period prior to injury.5 Section
1

By decision dated March 16, 2009, the Office suspended appellant’s compensation for failure to attend a
scheduled physical examination. In a June 3, 2009 decision, an Office hearing representative reversed the March 16,
2009 decision, and appellant received appropriate retroactive compensation.
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8101(4); see Dale Mackelprang, 57 ECAB 168 (2005).

4

R.S., 58 ECAB 362 (2007).

5

5 U.S.C. § 8114(e); Lottie M. Williams, 56 ECAB 302 (2005).

2

8114(e)(1) provides that, in computing an employee’s monthly pay for compensation purposes,
overtime pay is not included.6 The Office has administratively determined, however, that
“[p]remium pay for administratively uncontrollable overtime, including holiday pay” under 5
U.S.C. § 5545(c)(2) is to be included in pay rate calculations.7
The relevant part of section 5545(c)(2) states:
“The head of an agency, with the approval of the Office of Personnel
Management may provide that -- an employee in a position in which the hours of
duty cannot be controlled administratively and, which requires substantial
amounts of irregular, unscheduled, overtime duty with the employee generally
being responsible for recognizing, without supervision, circumstances which
require the employee to remain on duty, shall receive premium pay for this duty
on an annual basis instead of premium pay provided by other provisions of this
subchapter, except for regularly scheduled overtime, night, and Sunday duty and
for holiday duty. Premium pay under this paragraph is an appropriate percentage,
not less than 10 percent nor more than 25 percent, of the rate of basic pay for the
position, as determined by taking into consideration the frequency and duration of
irregular, unscheduled overtime duty required in the position.”8
ANALYSIS
The Board finds that appellant’s pay rate for compensation purposes should be calculated
as the pay rate of the date of injury. As noted above, monthly pay is determined with reference
to the greater of the monthly pay at the time of injury, at the time disability begins, or at the time
compensable disability recurs, if the recurrence begins more than six months after the employee
resumes regular federal employment on a full-time basis.9 Appellant stopped work on the date of
injury May 10, 2008. Although he returned to work for a brief period in August 2008, he
returned to part-time work and did not work for more than six months. The proper pay rate is
that of the date of injury. As provided by section 8114(e), the Office found that appellant was
entitled to an additional $21.07 per week for Sunday premium pay. It secured appellant’s pay
history for the year prior to his May 10, 2008 injury, which established that he earned a yearly
total of $1,095.38 in Sunday premium pay, or $21.07 per week.

6

5 U.S.C. § 8114(e)(1); Calvin E. King, 51 ECAB 394 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.7(b)(5)
(December 1995).
8

5 U.S.C. § 5545(c)(2); see also FECA Program Memorandum No. 106 (issued October 30, 1969) (provides for
inclusion of premium pay in pay rate for compensation purposes under section 5545(c)(2)); FECA Bulletin No. 8926 (issued September 29, 1989) (by administrative determination, pursuant to section 5545(c)(2), the Office includes
premium pay for administratively uncontrollable overtime in computing compensation).
9

Supra note 3.

3

The Board also finds that appellant is not entitled to the inclusion of overtime pay for
compensation purposes. The record supports that he worked and was compensated for overtime
in almost every pay period in the year preceding his employment injury. This evidence,
however, does not establish that the Office improperly excluded his overtime pay in determining
his pay rate. The record does not establish that he received premium pay for administratively
uncontrollable overtime of the type described in 5 U.S.C. § 5545(c)(2). Appellant submitted no
evidence that the head of his agency, with the approval of the Office of Personnel Management,
specifically provided for the payment of premium pay to its employees. Moreover, his pay
history, while documenting the overtime worked, shows that the hours of overtime and amounts
paid varied from pay period to pay period. The type of administratively uncontrollable overtime
contemplated by section 5545(c)(2) is premium pay that is paid on an annual basis as a
percentage of an employee’s base pay, regardless of the actual hours worked. The employing
establishment advised that appellant worked overtime because the employing establishment was
short-handed but there was nothing in writing that guaranteed any employees overtime work.
The Board finds that appellant’s pay was earned for actual hours of overtime worked. This
payment is to be excluded from the Office’s pay rate determinations.10
CONCLUSION
The Board finds that the Office properly determined appellant’s pay rate for
compensation purposes.

10

See Charles E. Zulauf, Docket No. 02-1743 (issued May 18, 2004).

4

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5