United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Las Vegas, NV, Employer
__________________________________________

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

Docket No. 13-766
Issued: June 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2013 appellant filed a timely appeal from the January 4, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
reconsideration request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision. Since
more than 180 days elapsed from the last merit decision of March 6, 2009 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s December 25, 2012
reconsideration request as untimely filed and failing to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 29, 2008 appellant, then a 46-year-old supervisor and acting manager, filed an
occupational disease claim alleging that her post-traumatic stress disorder and major depressive
disorder were a result of unfair and discriminatory tactics by management. On March 6, 2009
OWCP denied her claim on the grounds that the three events accepted as factual were not
compensable in the absence of administrative error or abuse. In a prior appeal,2 the Board found
that it properly denied appellant’s timely requests for reconsideration. The Board found that
appellant’s requests did not meet at least one of the three standards for obtaining a merit review
of her case.
On December 25, 2012 appellant again requested reconsideration. She offered medical
evidence as to her mental and physical state and argued: “I really tried to keep up with my
appeals but I just couldn’t, so I ask you to please understand and grant me reconsideration in
filing an untimely appeal.”3
In a January 4, 2013 decision, OWCP denied appellant’s reconsideration request without
reviewing the merits of her claim. It found that her request was untimely and failed to present
clear evidence of error in its most recent merit decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP decision for
which review is sought. If submitted by mail, the application will be deemed timely if
postmarked by the U.S. Postal Service within the time period allowed. If there is no such

2

Docket No. 10-1896 (issued April 11, 2011).

3

Dr. Rick Jenkins, a Board-certified psychiatrist, noted on November 20, 2012 that appellant’s recurrent major
depressive disorder and post-traumatic disorder caused her not to appeal on a timely basis “as depression can cause
isolation, sadness and not want to even get out of bed due to the condition.”
4

5 U.S.C. § 8128(a).

2

postmark or it is not legible, other evidence such as (but not limited to) certified mail receipts,
certificate of service and affidavits, may be used to establish the mailing date.5
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.6
The term “clear evidence of error” is intended to represent a difficult standard.7 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.8
ANALYSIS
The most recent merit decision in this case is OWCP’s March 6, 2009 decision denying
appellant’s emotional condition claim. Appellant had one year from the date of that decision, or
until March 6, 2010, to submit a reconsideration request to OWCP. Her December 25, 2012
request is therefore 2 years and nearly 10 months late. The question for determination is whether
this request shows clear evidence of error in OWCP’s March 6, 2009 decision.
OWCP denied appellant’s emotional condition claim on March 6, 2009 because the three
events that were established as factual were not compensable under FECA in the absence of
administrative error or abuse. The Board notes that workers’ compensation does not cover an
emotional condition resulting from administrative or personnel actions unless the claimant
submits independent documentary proof that management committed error or abuse in those
particular actions. OWCP denied appellant’s claim because she submitted insufficient evidence.
In her December 25, 2012 reconsideration request, appellant again submitted no proof of
administrative error or abuse with respect to the three established events. She instead attempted
to explain that her mental state had caused her to be untimely in her requests.
The year in which a claimant has to timely request reconsideration shall not include any
period subsequent to an OWCP decision for which the claimant can establish through probative
medical evidence that she is unable to communicate in any way and that her testimony is
necessary in order to obtain modification of the decision.9
The evidence appellant submitted to support her December 25, 2012 reconsideration
request does not establish that she was unable to communicate in any way during the one-year
period for requesting reconsideration. Indeed, as the Board noted in the last appeal, appellant
5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

8

Id. at Chapter 2.1602.3.d(1).

9

20 C.F.R. § 10.607(c).

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successfully filed timely reconsideration requests in November 2009 and once again on
February 23, 2010. There is no evidence that she was unable to communicate in any way during
this one-year period such that it should be extended. As noted, appellant’s December 25, 2012
reconsideration request is untimely by 2 years and nearly 10 months.
Appellant’s argument, and the evidence she submitted to support her December 25, 2012
reconsideration request, have no bearing on OWCP’s March 6, 2009 decision denying her
emotional condition claim. Her request fails to show clear evidence of error in that decision.
For this reason, the Board finds that OWCP properly denied appellant’s request without
reopening her case for a merit review. The Board will affirm OWCP’s January 4, 2013 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s December 25, 2012
reconsideration request as untimely filed and failing to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 09-2289
Issued: August 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 9, 2009 appellant filed a timely appeal from the March 10 and August 21,
2009 merit decisions of the Office of Workers’ Compensation Programs denying his traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on September 20, 2006.
FACTUAL HISTORY
On October 1, 2008 appellant, a 62-year-old modified mail handler, filed a traumatic
injury claim (Form CA-1) alleging that, on September 20, 2006, he injured his neck, back, hip,
hands and right eye when he fell on debris in the employing establishment mezzanine. He also

alleged that the employing establishment had ignored his restrictions, which prohibited him from
climbing stairs.1
On February 3, 2009 the Office informed appellant that the evidence submitted was
insufficient to establish his claim and advised him to provide additional information and
evidence, including a detailed description of the events surrounding the claimed injury; the
alleged cause of the injury; statements from any witnesses or other documentation supporting his
claim; and the reason he delayed reporting the incident and filing his claim for more than two
years. Appellant was also instructed to provide a narrative medical report containing a diagnosis
and a physician’s opinion explaining how the claimed incident caused the diagnosed condition.
In a decision dated March 10, 2009, the Office denied appellant’s claim. It found that the
evidence was insufficient to establish that the claimed incident occurred as alleged, or that he had
a diagnosed condition which could be connected to the claimed incident.
On March 17, 2009 appellant requested a telephonic hearing.
Appellant submitted medical records for the period March 16, 2006 through
December 22, 2008. On September 26, 2006 Dr. Ward Hale, a treating physician, stated that
appellant had been seen for an “urgent visual exam[ination]” on September 11, 2006,
complaining of decreased vision in the right eye since the previous Saturday. Appellant
informed Kelly R. Thompson, staff optometrist, that his vision had continued to worsen since he
awoke with decreased vision on Saturday and that “it was like looking through a coke bottle.”
On October 11, 2006 Dr. Timothy M. Morand, a treating physician, stated that appellant
was being seen following a recent retinal detachment in the right eye. He noted appellant’s
visual complaints of decreased vision due to a 1969 employment-related vehicle wreck.
In an August 22, 2007 operative report, Dr. Stewart Krug, a Board-certified
opthalmologist, performed phacoemulsification; IOL implantation; pars plana vitrectomy; laser
photocoagulation and scleral buckling, right eye. He diagnosed rhegmatogenous retinal
detachment of the right eye. Dr. Krug stated that appellant had undergone pneumatic retinopexy
for retinal detachment nine months earlier and had subsequently developed redetachment of the
retina due to reopening of the large previously-treated retinal break. The record also contains a
February 6, 2008 operative report from Dr. Krug, who performed a repositioning of the posterior
chamber of the intraocular lens of the right eye.
Appellant submitted a February 16, 2008 ophthalmology outpatient note signed by
Dr. Eric Speckner, a treating physician, who indicated that appellant’s active conditions included
a neck disorder and degenerative joint disease.

1

Appellant’s previous claims include a December 3, 1994 traumatic injury claim (File No. xxxxxx955); a
June 17, 1999 emotional condition claim, which was denied (File No. xxxxxx043); a May 22, 2000 occupational
disease claim, which was accepted for bilateral carpal tunnel syndrome (File No. xxxxxx947); an October 2003
emotional condition claim, which was denied (File No. xxxxxx258) and an October 1, 2008 traumatic injury claim
alleging that he sustained a right eye injury on August 17, 2007 (File No. xxxxxx910) currently under development.

2

On February 5, 2009 Dr. Morand stated that he examined appellant on August 21, 2007
for complaints of a shadow in his right eye for a week. He noted that appellant had experienced
a retinal detachment in September 2006 that was repaired with a scleral buckle procedure.
Dr. Morand diagnosed a reoccurrence of a retinal detachment in the right eye. Appellant denied
any recent history of trauma to the right eye.
A May 19, 2009 memorandum to the file reflected that appellant filed an April 14, 2009
occupational disease claim (File No. xxxxxx426) alleging an exacerbation of his neck, back and
bilateral wrist conditions due to the performance of his light-duty assignment.
During the June 24, 2009 telephonic hearing, appellant noted that he injured his eye on
three separate occasions, February 20 and September 20, 2006 and August 17, 2007. Since
2001, he had been restricted from climbing stairs, but the employing establishment moved his
locker to the mezzanine during a renovation process, requiring him to climb stairs and walk
through debris for more than 18 months. Appellant stated that he fell on debris on his way to his
locker on September 20, 2006. He also reinjured his hands, neck and lower back. Appellant
related that he saw flashes of light after the fall, during which he may have hit his eye with a
metal splint he was wearing on his hand. He testified that he had obtained prior leave approval
from his supervisor for the September 22, 2006 eye surgery.
Appellant stated that he experienced no problems with his right eye prior to the
September 20, 2006 fall. He sought medical treatment from the Veterans Administration on
September 20, 2006 and would obtain records to verify treatment. In response to a question
about a September 11, 2006 report reflecting that he woke up at home on that date with
diminished vision, appellant stated that he may have “got this date wrong here 9/20. Maybe I got
it wrong.” Appellant advised that dates do not make sense to him because of his post-traumatic
stress condition. He delayed filing his claim for more than two years because he was unsure of
the extent of the damage and wanted to receive all test results before filing. Appellant’s
representative informed him of the necessity of providing some documentation that the
September 20, 2006 incident did, in fact, occur.
Subsequent to the hearing, appellant submitted a July 3, 2009 statement from coworker
Wade A. Jones, who advised that he saw appellant fall over debris in the employing
establishment mezzanine sometime during the first or second week of September 2006.
Mr. Jones stated that he helped appellant up and asked him if he was alright. Appellant just held
his right side and stated that he saw flashes of light.
In a decision dated August 21, 2009, the Office hearing representative affirmed the
March 10, 2009 decision, finding that appellant had failed to establish fact of injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the

2

5 U.S.C. § 8101 et seq.

3

performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”4
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” namely, he
must submit sufficient evidence to establish that he experienced a specific incident at the time,
place and in the manner alleged, and that such incident caused an injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
A claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. 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.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
3

Id. at § 8102 (a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Paul Foster, 56 ECAB 208 (2004). Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
7

See Betty J. Smith, id.

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

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

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opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic injury on September 20, 2006. Appellant’s presentation of the facts is not
supported by the evidence of record, and does not establish that a specific incident occurred
which caused an injury on the date in question.11 There are such inconsistencies in the evidence
which cast serious doubt on the validity of his claim.
Appellant initially reported on his October 1, 2008 CA-1 form that he injured his neck,
back, hip, hands and right eye when he fell on debris in the employing establishment mezzanine
on September 20, 2006. He provided no detailed account of the incident, as required in a
traumatic injury claim. Appellant subsequently testified that he saw flashes of light after he fell
on the date in question and that he may have hit his eye with a metal splint he was wearing on his
hand. However, his descriptions of the incident of that date are not consistent and do not relate
with specificity the circumstances, or the exact and immediate consequences of the injury (e.g.,
whether he slipped, slid or broke the fall with his hands; whether he experienced pain or
dizziness; whether his eye was bleeding or whether he cried out).
Appellant’s subsequent course of action also casts doubt on his claim. He testified that
he received medical treatment at the Veterans Administration immediately following the
September 20, 2006 incident. There is no evidence of record to corroborate such treatment.
Appellant delayed more than two years in filing his traumatic injury claim, ostensibly because he
was unsure of the extent of the damage caused by the incident. He claims to have immediately
informed his supervisor of the incident; however, there is no evidence of such notification.
During the June 24, 2009 telephonic hearing, appellant testified that he injured his eye on
three separate occasions, namely on February 20 and September 20, 2006 and August 17, 2007,
but he later testified that he experienced no problems with his right eye prior to the
September 20, 2006 fall. After confirming that he fell over debris on September 20, 2006, he
acknowledged that he may have “got this date wrong here 9/20. Maybe I got it wrong.”
Appellant noted only that dates do not make sense to him because of a post-traumatic stress
condition. The record reflects that appellant was seen by Dr. Hale for an “urgent visual
exam[ination]” on September 11, 2006, complaining of decreasing vision in the right eye since
the previous Saturday. This report is inconsistent with his claim that he had no visual problems
prior to September 20, 2006. Appellant also noted that his supervisor had previously approved
leave for eye surgery on September 22, 2006.
10

John W. Montoya, 54 ECAB 306 (2003).

11

See Dennis M. Mascarenas, supra note 9.

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Following the telephonic hearing, appellant submitted a July 3, 2009 statement from
Mr. Jones, who noted that he saw appellant fall over debris in the employing establishment
mezzanine during the first or second week of September 2006. This statement does not support
appellant’s claim that he sustained the fall on September 20, 2006. The time frame referenced is
not consistent with the date of injury identified by appellant. The fact that appellant waited more
than two years to identify any witness casts doubt on both the accuracy of Mr. Jones’ statement.
The Board notes that the events described by Mr. Jones (that he helped appellant up and asked
him if he was alright, and that appellant just held his right side) were not mentioned by appellant
in his CA-1 form or in his testimony before the Office. Appellant did not provide any other
factual evidence to corroborate the alleged events.
The medical evidence of record does not support appellant’s claim. On October 11, 2006
Dr. Morand stated that appellant was being seen following a recent retinal detachment in the
right eye. On August 21, 2007 he advised that appellant had a shadow on the right side of his
right eye and noted a history of a retinal detachment and tear. However, none of Dr. Morand’s
reports record a history of a traumatic injury on September 20, 2006. On August 22, 2007
Dr. Krug performed surgery on appellant’s right eye and diagnosed rhegmatogenous retinal
detachment of the right eye. He stated that appellant had undergone pneumatic retinopexy for
retinal detachment nine months earlier and had subsequently developed re-detachment of the
retina due to reopening of the large previously-treated retinal break. However, Dr. Krug did not
indicate that appellant’s condition had resulted from a traumatic incident. The medical evidence
of record is devoid of any factual history involving a September 20, 2006 traumatic injury.
Appellant’s failure to report the alleged incident to any of his treating physicians creates doubt as
to its occurrence.
Appellant failed to establish the fact of injury: he did not submit sufficient evidence to
establish that he actually experienced an employment incident at the time, place and in the
manner alleged or that the alleged incident caused a diagnosed condition. Therefore, the Board
finds that appellant has not met his burden of proof to establish that he sustained an injury in the
performance of duty on September 20, 2006.12
On appeal, appellant’s representative contends that the Office’s decisions were contrary
to fact and law. For reasons stated above, the Board finds counsel’s argument to be without
merit.13
CONCLUSION
Appellant has not met his burden of proof to establish that he sustained a traumatic injury
in the performance of duty on September 20, 2006.

12

As appellant failed to establish that the claimed event occurred as alleged, it is not necessary to discuss the
probative value of medical evidence. Tracey P. Spillane, supra note 6.
13

The Board notes that appellant’s claim that the Office failed to comply with restrictions pursuant to a prior
claim would be more appropriately addressed in the relevant claim.

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ORDER
IT IS HEREBY ORDERED THAT the August 21 and March 10, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 16, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Gillem, GA,
Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1533
Issued: March 14, 2012

Case Submitted on the Record

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

JURISDICTION
On June 17, 2011 appellant, through her representative, filed a timely appeal from the
May 26, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
found her at fault in the creation of an overpayment. 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 overpayment case.
ISSUES
The issues are: (1) whether appellant received a $107,580.44 overpayment from
November 4, 2001 to February 27, 2008; and (2) whether she was at fault in creating the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 10, 1999 appellant, a 39-year-old store worker, hurt her left shoulder while
stocking rice. OWCP accepted her claim for left shoulder dislocation, for which she underwent
surgery.2 Appellant’s weekly pay rate on the date of injury was $425.28. OWCP placed her on
the periodic rolls and paid more than $1,200.00 every four weeks for temporary total disability.
Appellant returned to work on September 1, 2000 as a customer service clerk. On
November 22, 2000 OWCP issued a formal loss of wage-earning capacity determination
reducing her compensation to reflect her actual earnings. Noting that appellant’s weekly pay rate
was now $416.32, it explained that she would begin receiving $115.00 in wage-loss
compensation every four weeks for partial disability. OWCP later notified her that when her
schedule award expired on October 25, 2001 she would be entitled to wage-loss compensation
under the loss of wage-earning capacity determination.3
Beginning November 4, 2001, OWCP paid appellant over $1,300.00 in wage-loss
compensation every four weeks on the periodic rolls.4
Effective July 3, 2010, OWCP reduced appellant’s wage-loss compensation to zero on
the grounds that her injury-related condition had materially changed for the better. It found that
the weight of the medical evidence demonstrated that the accepted medical conditions had
resolved or were no longer disabling.
On September 22, 2010 OWCP issued a preliminary determination that appellant
received a $107,580.44 overpayment from November 4, 2001 to February 27, 2008 because it
paid her wage-loss compensation for total disability instead of compensation for her loss of
wage-earning capacity. It found that she received $118,166.84 in gross compensation for the
period but should have received $10,586.40. OWCP found appellant at fault in creating the
overpayment because she accepted payments that she knew or should have known to be
incorrect. It explained that she was advised that the loss of wage-earning capacity determination
would be implemented once her schedule award expired.
At a prerecoupment hearing, appellant’s representative argued that appellant faithfully
reported her return to work and how much money she was making, but OWCP did not pay
attention. He argued that it was not her fault that OWCP took 10 years to catch the mistake.
Counsel argued that appellant did everything she could do to discharge her obligation to try to
bring this to OWCP’s attention. He noted that every time she spent a dollar to buy groceries or
pay a bill or do anything, it was with the knowledge that “this is the bucket of dollars that I have
to spend.” Counsel argued that appellant detrimentally relied on the fact that the money was
hers, that she was entitled to it, that it legally belonged to her.
2

OWCP later expanded its acceptance to include left rotator cuff syndrome and left rotator cuff tear.

3

OWCP issued appellant a schedule award for 15 percent impairment of the left upper extremity, which was to
run for 46.80 weeks during the period December 2, 2000 to October 25, 2001.
4

Due to cost-of-living increases every March, the payments rose to over $1,500.00 by 2007.

2

Appellant submitted an overpayment recovery questionnaire showing $6,574.00 in
monthly income, $5,210.00 in monthly expenses, rental property and $99,000.00 in funds. She
explained why the overpayment was not her fault: “When the checks were sent to me I called
worker comp and mailed checks back several times, and was told I was entitled to payments.”
Appellant and her representative submitted statements.
In a decision dated May 26, 2011, an OWCP hearing representative found that appellant
was at fault in creating a $107,580.44 overpayment from November 4, 2001 to
February 27, 2008. OWCP paid compensation for total disability instead of reducing her wageloss benefits based on the loss of wage-earning capacity determination. The hearing
representative found that appellant accepted payments she knew or should have known to be
incorrect. The checks she received were over $1,000.00 more than the loss of wage-earning
capacity determination to which she was entitled and she was clearly aware or should have been
aware that the ongoing payments were more than she should have received. Although appellant
stated that she believed that she was being paid more than she was entitled to, she kept all the
payments. The hearing representative found no evidence to support that appellant returned any
payment made during the period in question.
On appeal, appellant argues that she always kept OWCP informed of her work status and
of receipt of payments that she did not think she was entitled.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.6
It is well established that an employee is not entitled to compensation for temporary total
disability after returning to work.7
ANALYSIS -- ISSUE 1
After appellant returned to work on September 1, 2000 as a customer service clerk,
OWCP issued a formal loss of wage-earning capacity determination finding that she was entitled,
based on her actual earnings, to $115.00 in wage-loss compensation every four weeks. When her
schedule award ended, however, OWCP paid her over $1,300.00 every four weeks at the total
disability rate of compensation. As appellant was not entitled to compensation for total

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours per day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).

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disability, fact of overpayment is well established. The Board will affirm OWCP’s May 26,
2011 decision on the issue of fact of overpayment.
The amount of the overpayment is also well established in the record. Appellant’s
payment history shows every check she received during the period and compensation worksheets
reflect show how much she should have received under the loss of wage-earning capacity
determination. She received $118,166.84 in gross compensation but should have received
$10,586.40. The difference, $107,580.44, represent an overpayment. The Board will affirm
OWCP’s May 26, 2011 decision on the issue of amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she received
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events which may affect entitlement to or the amount of benefits. A recipient who
has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; (2) Failed to provide information which she knew or should have
known to be material; or (3) Accepted a payment which she knew or should have known to be
incorrect (this provision applies only to the overpaid individual).8
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.9
The fact that OWCP may have erred in making the overpayment does not by itself relieve
the individual who received the overpayment from liability for repayment if the individual was
also at fault in accepting the overpayment.10
ANALYSIS -- ISSUE 2
The central issue in this case is the issue of fault, whether appellant accepted payments
she knew or should have known to be incorrect. The first component, acceptance, is established.
As the hearing representative explained, although appellant appeared to have returned at least
one check prior to the period of the overpayment, there was no evidence that she returned any
payment made during the period at issue. The record shows that none of the checks was
cancelled. Further, appellant’s representative effectively acknowledged acceptance at the

8

20 C.F.R. § 10.433(a).

9

Id. at § 10.433(b).

10

Supra note 8.

4

prerecoupment hearing when he argued that appellant detrimentally relied on the payments
whenever she spent a dollar to buy groceries or pay a bill from her “bucket” of dollars.
The second component of the fault finding, that appellant knew or should have known
that the payments were incorrect, is also established. Appellant and her representative have
argued that she did everything she could to discharge her obligation to bring to OWCP’s
attention that she was in receipt of money to which she was not entitled. She had good reason to
think the payments were incorrect. OWCP previously paid appellant for total disability -- over
$1,200.00 every four weeks -- so she understood the level of compensation OWCP paid for total
wage loss. Appellant returned to work on September 1, 2000 earning nearly as much as she did
on the date of injury. OWCP notified her that her actual earnings reduced her entitlement to only
$115.00 every four weeks. That was the amount appellant could expect to receive. Although
this loss of wage-earning capacity determination would not go into effect for another year, when
her schedule award expired, OWCP reminded her. When OWCP started paying appellant over
$1,300.00 every four weeks, instead of a little over $100.00, the Board finds that she knew or
should have known that the payments were incorrect, something she has effectively
acknowledged in arguing that she tried to bring the matter to OWCP’s attention.
Appellant’s defense is to fault OWCP, but OWCP’s negligence in this matter does not
relieve her from liability for repayment. She is at fault in accepting payments that she knew or
should have known were incorrect. The Board will affirm OWCP’s May 26, 2011 decision on
the issue of fault. Appellant is not entitled to consideration of waiver. OWCP must recover the
debt.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where OWCP decreases later payments of compensation to which the individual in
entitled.11 Because collection of the overpayment in this case cannot be made by adjusting later
payments -- OWCP terminated wage-loss compensation effective July 3, 2010 -- but must be
recovered by other means, the Board lacks jurisdiction to review the amount of recovery
determined by the hearing representative to be appropriate.
Appellant reiterated on appeal that she always kept OWCP informed of her work status
and of when she was receiving payment that she did not think she was entitled. But again,
OWCP’s negligence is immaterial. The critical question is whether appellant accepted payments
that she knew or should have known were incorrect. The record shows that she did.
CONCLUSION
The Board finds that appellant received a $107,580.44 overpayment from November 4,
2001 to February 27, 2008. The Board also finds that she was at fault in creating the
overpayment.

11

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pelham, AL, Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-32
Issued: March 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2012 appellant, through her attorney, filed a timely appeal from an
August 28, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying reconsideration. Because more than 180 days elapsed from the most recent merit
decision dated April 27, 2011 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of the case.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 15, 2010 appellant, then a 51-year-old rural letter carrier, filed an
occupational disease claim alleging that her cervical stenosis was due to factors of her
employment. She indicated that she was first aware of her condition on December 17, 2009.
Appellant attributed her condition to an extra high volume of bulk mail, a shortage of clerks and
an increased volume of packages during the holiday immediately preceding her claim.
By decision dated April 5, 2010, OWCP denied the claim on the grounds that fact of
injury was not established. It found the evidence insufficient to establish that the events occurred
as alleged and there was no medical evidence which provided a diagnosis which could be
connected to the claimed events.
On April 20, 2010 appellant requested a review of the written record before an OWCP
hearing representative. By decision dated July 23, 2010, an OWCP hearing representative
affirmed the April 5, 2010 decision. She found that appellant’s description of her work duties
differed significantly from that of the employing establishment. The hearing representative also
found that none of the medical reports provided established a causal relationship between the
diagnosed cervical stenosis condition and employment factors.
In an October 5, 2010 letter, appellant requested reconsideration and submitted additional
evidence. By decision dated April 27, 2011, an OWCP hearing representative modified the prior
decision to reflect that the medical evidence was insufficient to establish that the cervical
condition was causally related to appellant’s work activities.
In an April 23, 2012 letter, appellant, through her attorney, requested reconsideration of
the April 27, 2011 decision. In an April 23, 2012 15-page statement, counsel noted appellant’s
work and medical history in relation to the claim and opined that the medical evidence, in
particular Dr. Andrea S. Lamberson, a Board-certified family practitioner’s, many reports of
record, established causal relationship. Evidence previously of record which was resubmitted
included a February 18, 2010 computerized tomography (CT) lumbar myelogram and reports
from Dr. Lamberson dated September 2, 2010 and an undated letter listed as Exhibit 2.3
By decision dated August 28, 2012, OWCP denied appellant’s request for reconsideration
on the grounds no substantive legal questions were raised and there was no new and relevant
evidence submitted to support causal relation.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
3

In the letter noted as Exhibit 2, Dr. Lamberson opined that appellant sustained an exacerbation of cervical
osteoarthritis due to the repetitive motions encountered at work -- bending, lifting, pulling, pushing, prolonged
standing, twisting, which was a proximate or direct result from her reported work-related injury.
4

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).

2

interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
Appellant disagreed with OWCP’s April 27, 2011 decision which denied her claim on the
grounds that she did not establish causal relation. Thus, the issue presented on appeal is whether
appellant’s April 23, 2012 request for reconsideration met any of the conditions of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for further review of the merits.
In her April 23, 2012 request for reconsideration and on appeal, appellant contended that
the medical reports from Dr. Lamberson supported causal relationship. On appeal, she further
contended that the medical evidence submitted on reconsideration was ignored, at least in part,
by OWCP in its April 27, 2011 decision or were not given the weight required by law.
Appellant, however, did not show that OWCP erroneously applied or interpreted a specific point
of law. OWCP’s April 27, 2011 decision denied appellant’s claim on the grounds causal
relationship was not established. It reviewed the medical evidence appellant submitted and
found that the medical evidence was insufficient to establish causal relation as it was lacking
medical rationale as to the mechanics of how particular work activities caused or exacerbated
appellant’s diagnosed condition. With regard to appellant’s argument that Dr. Lamberson’s
reports established causal relationship, this argument and the medical reports submitted were
previously considered by OWCP. It is well established that where the legal argument presented
has no reasonable color of validity, OWCP is not required to reopen the case for merit review.7
Appellant did not identify a specific point of law or show that it was erroneously applied or
interpreted.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but she did not submit any pertinent new and relevant medical evidence in this case.
In support of her request for reconsideration, appellant submitted duplicative copies of medical
reports previously considered by OWCP in its April 27, 2011 decision. Evidence which repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.8

5

20 C.F.R. § 10.606(b)(1)-(2).

6

Id. at § 10.607(a).

7

Norman W. Hanson, 45 ECAB 430 (1994).

8

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

3

The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sacramento, CA, Employer
__________________________________________

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Appearances:
James Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1183
Issued: February 22, 2010

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 March 31, 2009 appellant, through her representative, filed a timely appeal from
June 11, 2008 and January 22, 2009 merit decisions of the Office of Workers’ Compensation
Programs 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 this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On February 8, 2008 appellant, then a 51-year-old supervisor, filed a recurrence of
disability on August 13, 2007 causally related to a May 13, 2006 work injury, assigned file
number xxxxxx628. Under file number xxxxxx628, the Office accepted that she sustained
adjustment disorder with depression on May 13, 2006 when Chris Catalano, a subordinate,
“bumped into [her] left breast and shoulder.” On appellant’s notice of recurrence of disability

form, she indicated that she stopped work and sought medical treatment on August 13, 2007.
Appellant’s supervisor indicated that appellant worked limited duty until she was released to
resume her regular employment on December 6, 2006.
In an accompanying statement, appellant maintained that after her work injury she
experienced difficulties dealing “with craft employees or people in general.” She told her
supervisor, Scott Renteria, that she “was having difficulties dealing with men since the assault
and having to talk to carriers at their case.” Mr. Renteria and another manager tried from
June 2006 to January 16, 2007 to have her released to full duty. In January 16, 2007, appellant
returned to her position as a manager. She told Mr. Renteria that a union stewart indirectly
threatened her and that Theil Sylve, a subordinate, sexually harassed her in April 2007.
Mr. Renteria issued appellant a false letter of warning and told her that the union would picket
the building unless she moved to another location. On March 30, 2007 he moved her to another
location and told her that she had to deal directly with city carriers. Appellant was the only
female at her level. She did not feel safe and was not informed which employees were
aggressive. In June 2007, Fred Talbot, a subordinate, harassed appellant and called her house
screaming about another supervisor even though she was not his manager. A July 2007
newsletter contained an article about her. On August 7, 2007 management told appellant that she
was being removed from her duties as a manger. Appellant stated, “On Monday, August 13,
2007 while working with the supervisors, we determined how many hours of mail needed
coverage. I had a business briefing and during the briefing a carrier verbally attacked me.
Mike Hoffman [a manager] was present at the business briefing and witnessed the carrier’s
verbal assault.” She related that Mr. Hoffman knew that she had previously been assaulted but
that when he “witnessed an employee going off on me at a stand-up he walked away. It was
while I was talking to the employee at his case that I experienced another setback.”
On January 10, 2008 the Office noted that appellant was working without restrictions
after May 21, 2007 and that she had alleged new work factors. It advised her that her claim
would be adjudicated as an occupational disease.
On December 11, 2007 Mr. Renteria controverted appellant’s claim.1 He confirmed that
she did tell him that she was raped while in the military and had difficulty with men.
Mr. Renteria indicated that appellant was removed as a manger from one location because of her
performance and had been removed “three times since May 13, 2006 due to unacceptable
performance.” He assigned her to a different location so that she could improve her
communication skills. Mr. Renteria noted that appellant had been released to full duties and that
communication with employees was one of her managerial duties. He denied that she told him
that Mr. Sylve sexually harassed her. Mr. Renteria asserted that appellant successfully interacted
with Mr. Talbot until “after it was found out that he had posted some inflammatory remarks on a
website about her….” He also noted that an article written in a newsletter did not mention her by
1

Appellant filed a claim for a traumatic injury occurring on August 13, 2007. In an accompanying statement she
related that on August 13, 2007 she was verbally attacked by a subordinate while giving a talk and that
Mr. Hoffman, a manager, witnessed the verbal attack. Afterwards appellant went to speak with the subordinate he
aggressively stepped towards her three times and she had “a flashback of the carrier that assaulted me in 2006 and
feared he would hit me.” She asked Mr. Hoffman to go with her outside. Appellant left work and drove to see her
physician.

2

name. Mr. Renteria related that the August 3, 2007 incident described by appellant was “not
confirmed by [Mr.] Hoffman” and that there were no other witnesses.
In a handwritten statement, Amber Angeline, a coworker provided information about
appellant’s mental state. In a November 17, 2007 statement, Robbie D. Halverson noted that he
worked as a carrier when appellant was a manager in 2000 and that she was confident and dealt
with all employees. He worked with her again in 2006 during rural route inspections and she
was again confident.
In April 2007, however, appellant was “emotionally unstable.”
Mr. Halverson related that Mr. Renteria and another manager removed her from her position and
walked her and her belongings across the work floor in front of everyone. When the next
manager arrived to replace appellant he immediately received adequate staffing.
By decision dated June 11, 2008, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that she sustained an injury in the performance of duty.
It found that she had not established any compensable employment factors.
On July 10, 2008 appellant requested an oral hearing. She submitted medical reports
from her treatment at a local emergency room on August 13, 2007.
At the hearing held on October 28, 2008, appellant related that Mr. Renteria decided that
she needed to get past her fear of employees and assigned her to another office as a supervisor.
She had a “stand-up with employees” and one employee became “verbally aggressive” because
she did not give him certain information before the meeting. He also used aggressive body
language. A manger, Mr. Hoffman, witnessed the incident but did nothing. When appellant
went to talk with the employee after the meeting he got into her space and came at her three
times. She related, “And a third time he came towards me, I just had flashbacks, flashbacks from
the incident with [Mr. Catalano], and everything that happened afterwards.” Appellant drove
herself to the emergency room. She described her prior assault on May 13, 2006. When
appellant returned to work after the assault a union steward asked, “[W]hen’s the bitch leaving?”
Mr. Sylva sexually harassed her which caused flashbacks to when she was raped in the military.
Appellant reported the sexual harassment to Mr. Renteria. He moved her to another work
location because of union pressure and told her that she needed to improve performance. A
former employee accused appellant of assault when she fired her during her probationary period.
A grievance filed against appellant for alleged abusive incidents was resolved on
August 25, 2006 with the requirement that she have training in interpersonal relations. On
March 27, 2007 she was reassigned to another location to work on specific issues. On April 16,
2007 Mr. Renteria placed appellant on a success improvement plan (SIP). He noted that, as a
manager, one of her tasks was communicating with subordinates. On August 16, 2007 appellant
received a notice of removal for failing to discharge her duties.
In a statement dated November 25, 2008, Mr. Renteria noted that on February 20, 2007
appellant received a letter of warning for failing to discharge her duties and to follow
instructions. On March 27, 2007 he told her that she was moving to another location to work on
specific areas of performance. Mr. Renteria placed her on a SIP on March 30, 2007 with
instructions to develop her management skills. He put appellant on administrative leave on
August 7, 2007 for failing to discharge her duties. Mr. Renteria noted that she did not have work

3

restrictions against supervising employees on August 13, 2007. Appellant told him that
unflattering comments were made on a union website but did not report sexual harassment.
Mr. Renteria indicated that there was “nothing that supports that there was any form of sexual
harassment between [appellant] and [Mr.] Sylve.”
By decision dated January 22, 2009, an Office hearing representative affirmed the
June 11, 2008 decision. He found that appellant had not established any compensable work
factors.
On appeal, appellant’s representative argues that the Office should have consolidated this
claim with her accepted claim as a result of the May 2006 incident. He contends that she was
harassed after she returned to work after the May 2006 assault and that Mr. Talbot called her a
“bitch.” Management was aware of her history of rape and of the May 2006 assault and knew
that she had work restrictions against dealing directly with nonsupervisors. On August 13, 2007
Mr. Sylve aggressively entered her space. Appellant notified Mr. Hoffman and he did nothing.
The employing establishment erroneously placed her on a SIP.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
2

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

3

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

4

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

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

6

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

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.7 Aclaimant must establish
a factual basis for his or her allegations with probative and reliable evidence. Grievances and
Equal Employment Opportunity complaints, by themselves, do not establish that workplace
harassment or unfair treatment occurred.8 The issue is whether the claimant has submitted
sufficient evidence under the Act to establish a factual basis for the claim by supporting his or
her allegations with probative and reliable evidence.9 The primary reason for requiring factual
evidence from the claimant in support of his or her allegations of stress in the workplace is to
establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,
which in turn may be fully examined and evaluated by the Office and the Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
The Board notes that the Office properly adjudicated the claim as a new occupational
disease claim rather than a recurrence of disability. Appellant alleged new employment factors
and exposure after she returned to work following her May 2006 injury.13
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

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

9

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

10

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

11

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

12

Id.

13

A “recurrence of disability” means an inability to work after an employee has returned to work caused by a
spontaneous change in a medical condition, which resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. 20 C.F.R. § 10.5(x). An occupational
disease is defined as a condition produced by the work environment over a period longer than a single workday or
shift.” 20 C.F.R. § 10.5(q).

5

grounds that she did not establish any compensable employment factors. The Board must review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of the Act.
Appellant attributed her condition, in part, to sexual harassment by management and
coworkers. She related that when she returned to work as a manager on January 16, 2007 an
employee made a threat against her and, in April 2007, Mr. Sylve sexually harassed her.
Appellant told Mr. Renteria about the sexual harassment but he did nothing. Mr. Talbot, a
subordinate, called her at her home yelling about another supervisor. He also referred to
appellant as a “bitch.” Mr. Renteria told her that the union was going to picket the location
where she worked unless she was transferred. In July 2007 articles about appellant appeared in a
newsletter. Harassment and discrimination by supervisors and coworkers, if established as
occurring and arising from the performance of work duties, can constitute a compensable work
factor.14 A claimant, however, must substantiate allegations of harassment and discrimination
with probative and reliable evidence.15 In a December 11, 2007 statement, Mr. Renteria denied
that she informed him that she was sexually harassed. He stated that the article in the newsletter
did not refer to her by name. Mr. Renteria found that there was no evidence that Mr. Sylve
sexually harassed appellant. Appellant has not submitted any evidence to substantiate any of the
alleged incidents. As she has not established a factual basis for her allegation of harassment with
reliable and probative evidence, she was not established a compensable employment factor.16
Appellant maintained that Mr. Renteria unfairly gave her a letter of warning,
inappropriately assigned her work-supervising employees, transferred her to a new location,
placed her on a SIP and removed her from her position as a manager. The assignment of work
duties, matters relating to a transfer and disciplinary actions are administrative functions of the
employer and not duties of the employee.17 An administrative or personnel matter will be
considered compensable employment factors only where the evidence discloses error or abuse by
the employing establishment.18 Appellant has not submitted sufficient evidence to support her
allegation that the employing establishment committed error or abuse in the assignment of work,
transferring her to a new location, issuing her a letter of warning or placing her on a SIP and thus
she has not established a compensable work factor.
Appellant primarily attributed her emotional condition to an incident on August 13, 2007.
She maintained that she was briefing subordinates at a meeting when a carrier “verbally
attacked” her. Appellant related that he was loud and used threatening body language. She
14

Doretha M. Belnavis, 57 ECAB 311 (2006).

15

Robert Breeden, 57 ECAB 622 (2006).

16

Lori A. Facey, 55 ECAB 217 (2004).

17

Jeral R. Gray, 57 ECAB 611 (2006) (the assignment of work is an administrative function of a supervisor);
Robert Breeden, supra note 15 (allegations of unfair disciplinary actions 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); Ernest J. Malagrida, 51 ECAB 287 (2000) (as a denial of a transfer is an administrative decision, absent
error or abuse in the decision making process, it is not compensable).
18

Id.

6

asserted that Mr. Hoffman witnessed the incident and did nothing. After the meeting appellant
spoke with the employee and he invaded her space in a threatening manner three times. She
experienced a flashback to the prior assault in May 2006. The Board has recognized the
compensability of physical threats or verbal abuse in certain circumstances. This does not imply,
however, that every statement uttered in the workplace will be covered under the Act.19 A raised
voice in the course of a conversation does not, in and of itself, warrant a finding of verbal
abuse.20 Appellant maintained that Mr. Hoffman, another manager, witnessed the incident
between herself and the carrier; however, Mr. Renteria indicated that Mr. Hoffman had not
confirmed that the incident occurred as alleged and that there were no witnesses. Additionally,
she has not specifically described any statements that would rise to the level of verbal abuse.
Appellant has not submitted any evidence supporting her allegation that a carrier verbally
attacked her during the meeting or used threatening body language either during or after the
meeting. Without such corroborating evidence, she has failed to establish that the event actually
occurred as alleged.21
As appellant failed to establish any compensable factors of employment, the Office
properly denied her claim.22
On appeal, appellant’s representative contends that the Office should have consolidated
this claim with her accepted claim as a result of the May 2006 incident. As discussed, however,
the Office properly considered her claim as one for a new injury as she alleged new work factors.
Appellant’s representative further contends that she was harassed after she returned to work after
the May 2006 assault and described the incidents that she believed constituted harassment. He
also describes incidents that he maintains shows abuse by the employing establishment in
administrative actions. As noted, however, it is appellant’s burden to establish her allegations of
harassment or of error and abuse by the employing establishment through the submission of
corroborating evidence. While she raised many allegations, she did not submit any factual
evidence substantiating her allegations.23
Appellant’s representative also alleged that the employing establishment assigned
appellant’s work outside her restrictions; however, it appears that she was not working with
restrictions at the time she was directed to work directly with subordinates. He also reviewed the
medical evidence and argued that the medical evidence showed that her condition resulted from
her employment. It is well established, however, that a claimant must first establish a
compensable work factor before the medical evidence is considered.24

19

Cyndia R. Harrill, 55 ECAB 522 (2004); Beverly R. Jones, 55 ECAB 411 (2004).

20

Karen K. Levene, 54 ECAB 671 (2003).

21

See Linda J. Edwards Delgado, 55 ECAB 401 (2004).

22

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).
23

Katherine A. Berg, 54 ECAB 262 (2002); Jamel A. White, 54 ECAB 224 (2002).

24

Richard Yadron, 57 ECAB 207 (2005).

7

CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 22, 2009 and June 11, 2008 are affirmed.
Issued: February 22, 2010
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
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Willowick, OH, Employer
__________________________________________

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

Docket No. 09-1648
Issued: February 24, 2010

Case Submitted on the Record

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

JURISDICTION
On June 22, 2009 appellant, through counsel, filed a timely appeal of the merit decision
of the Office of Workers’ Compensation Programs dated June 4, 2009 denying modification of
its prior decisions denying appellant’s claim for compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before this Board. In a decision dated July 3, 2008, the
Board affirmed the Office’s February 27 and November 16, 2007 denials of appellant’s
occupational disease claim, wherein he alleged that, during the week of September 17, 2004,
after carrying heavy mail for that week, he “literally could not get up.” The Board found that
appellant failed to establish that his lumbar condition was caused or aggravated by his work

duties, as alleged. The facts and law as set forth in the Board’s prior decision are hereby
incorporated by reference.1
By letter dated March 3, 2009, appellant requested reconsideration and submitted a new
September 12, 2007 medical note wherein Dr. David C. Parris, appellant’s Board-certified
internist, noted that he had been following appellant with regard to his back injury. He noted,
“Because of the sequence of events, I believe that it is reasonable to believe that the herniated
disc is a result of his back injury.” Dr. Parris noted that appellant’s symptoms of sciatica did not
exist before the injury and herniated disc can cause sciatica. In an October 24, 2008 opinion, he
opined that appellant’s herniated disc was due to his work injury. Dr. Parris noted that appellant
first saw him on January 7, 2004 at which time he gave a history of slipping on ice while walking
his route on December 13, 2003. He diagnosed lumbosacral strain. Dr. Parris noted that, at the
time of appellant’s visit on September 2, 2004, his condition worsened. Because of appellant’s
continued pain, he noted that appellant had a magnetic resonance imaging (MRI) scan that
showed a herniated disc at L4-L5. Dr. Parris opined, “Because of the fact that [appellant] had
been doing better and was actually pain free until the incident in August [2004] and because of
the fact that he had continued pain in the back and leg since then, I believe that it is reasonably
certain that the herniated disc found on the MRI [scan] is particularly from his work injury.”
By decision dated June 4, 2009, the Office reviewed appellant’s claim on the merits but
determined that the newly submitted medical evidence was not sufficient to support that his
current medical condition was connected to the employment duties described in the initial history
for the claim.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 To establish that an
injury was sustained in the performance of duty in a claim for an occupational disease, an
employee must submit: (1) a factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
1
2

S.F., Docket No. 08-584 (issued July 3, 2008).
5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

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

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

2

causally related to the employment factors identified by the employee.6 The medical evidence
must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish a
prima facie claim for compensation. Although the Office had previously accepted that appellant
engaged in lifting and carrying mail as a letter carrier, the Office denied the claim because he
failed to establish an injury as a result of these work activities through the submission of
rationalized medical evidence. The Board found in its July 3, 2008 decision that appellant failed
to establish a causal relationship between the work activities he performed during the week of
September 17, 2004 and his lumbar condition.8 Subsequently, appellant submitted two new
reports by his treating physician, Dr. Parris. Neither of these reports, however, is sufficient to
establish that appellant sustained a work-related injury as a result of heavy lifting or other
employment activities during the week of September 17, 2004. Although Dr. Parris opined in his
September 12, 2007 report that he believed appellant’s herniated disc was the result of his back
injury, he did not discuss appellant’s condition the week of September 17, 2004 nor did he
specifically link appellant’s back condition to his employment duties. In his October 24, 2008
report, Dr. Parris discussed appellant’s prior slip on ice that occurred on December 13, 2003. He
also noted that appellant’s condition had worsened as of the time of his September 2, 2004 visit.
However, in his claim, appellant noted back pain the week of September 17, 2004, two weeks
after his September 2, 2004 visit with Dr. Parris. The Board notes that Dr. Parris references an
August 2004 incident, which is not mentioned in appellant’s claim. Furthermore, although
Dr. Parris indicated that it was reasonable to believe appellant’s herniated disc was due to his
work injury, he did not discuss appellant’s work duties. An award of compensation may not be
based on surmise, conjecture or speculation. Neither the fact that appellant’s claimed condition
became apparent during a period of employment nor his belief that his condition was aggravated
by his employment is sufficient to establish causal relationship.9 As appellant failed to provide
medical evidence establishing a causal relationship between a medical condition and his claimed
employment factors, the Office properly denied his claim.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty causally related to factors of his federal employment.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

Solomon Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

8

S.F., supra note 1.

9

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2009 is affirmed.
Issued: February 24, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
SHERMAN INDIAN HIGH SCHOOL,
Riverside, CA, Employer
__________________________________________

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

Docket No. 18-0161
Issued: May 18, 2018

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 October 30, 2017 appellant filed a timely appeal from an August 16, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision, dated November 21, 2016, 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.

1
Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated March 15, 2018, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-0161 (issued March 15, 2018).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124.
FACTUAL HISTORY
On September 29, 2016 appellant, then a 57-year-old school janitor, filed a traumatic injury
claim (Form CA-1) alleging that, on September 25, 2016, he pulled his left arm/shoulder while in
the performance of his federal employment duties. He explained that he was attempting to change
a tire on home Living Vehicle #1 when the jack gave out. Appellant did not indicate on the claim
form that he had stopped work.
In an October 13, 2016 development letter, OWCP noted no documentation had been
received with his claim. It requested that appellant submit evidence in support of his claim,
including a physician’s opinion supported by a medical explanation as to how the reported work
incident caused or aggravated a medical condition.
OWCP thereafter received progress notes from Dr. Dana Robert Johnson, a specialist in
occupational medicine, dating from September 29, 2016. In an October 12, 2016 report,
Dr. Johnson related appellant’s history of the September 25 2016 incident, and a diagnosis of left
shoulder arthritis. He indicated that appellant’s employment incident, as well as preexisting
causes, contributed to this diagnosis.
By decision dated November 21, 2016, OWCP denied appellant’s claim, finding that the
medical evidence submitted was insufficient to establish that the diagnosed condition was causally
related to the accepted September 25, 2016 employment incident.
On an appeal request form dated March 28, 2017, and postmarked March 29, 2017,
appellant requested a telephonic hearing before an OWCP hearing representative.
Appellant continued to submit progress notes from Dr. Johnson, as well as diagnostic
reports.
By decision dated August 16, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. OWCP’s hearing representative noted that OWCP
had issued its decision on November 21, 2016, while appellant’s hearing request was postmarked
March 29, 2017, more than 30 days after OWCP’s decision. He found that appellant was not
entitled to a hearing as a matter of right, as the request was submitted more than 30 days after
OWCP’s decision. The hearing representative also considered whether to grant appellant a
discretionary hearing, but determined that the issue in this case could equally well be addressed by
a request for reconsideration before OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
2

this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.3
A hearing is a review of an adverse decision by an OWCP’s hearing representative.
Initially, the claimant can choose between two formats: an oral hearing or a review of the written
record. In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.4 A request for either an oral hearing or a review of the written record must be sent,
in writing, within 30 days of the date of the decision for which the hearing is sought.5 A claimant
is not entitled to a hearing or a review of the written record if the request is not made within 30
days of the date of the decision.6
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record. In such a case, it will so advise the
claimant with reasons.7
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely filed. OWCP’s regulations provide that the hearing request must be sent
within 30 days of the date of the decision for which a hearing is sought. Because appellant’s
request was postmarked March 29, 2017, more than 30 days after OWCP’s November 21, 2016
decision, it was untimely and he was not entitled to an oral hearing as a matter of right.
Although appellant’s request for an oral hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion.8 OWCP’s hearing representative
properly exercised his discretion in denying appellant’s hearing request as the issue of whether
appellant established that the diagnosed shoulder condition was causally related to the accepted
September 25, 2016 employment incident could be equally well addressed by a request for
reconsideration before OWCP. The Board finds that the hearing representative properly exercised
his discretionary authority in denying appellant’s request for a hearing.9 The only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of
manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to

3

Id. at § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

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

6

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

7

G.W., supra note 5.

8

R.V., Docket No. 17-1286 (issued December 5, 2017).

9

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

3

both logic and probable deductions from established facts.10 In this case, the evidence of record
does not establish that OWCP abused its discretion in denying appellant’s request for a hearing.
Accordingly, the Board finds that OWCP properly denied appellant’s hearing request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing before
an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 16, 2017 is affirmed.
Issued: May 18, 2018
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

10

Samuel R. Johnson, 51 ECAB 612 (2000).

4