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

)
)
)
)
)
)
)
)

Docket No. 21-0921
Issued: March 15, 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 May 27, 2021 appellant filed a timely appeal from a January 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 21-0921.
On August 24, 2020 appellant, then a 34-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 18, 2020 she sustained shoulder and lower back sprains
when trying to avoid a dog attack while in the performance of duty. She stopped work on
August 18, 2020.
On August 20, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
her back strain. The portion of the form designated as Part B attending physician’s report was
signed on August 20, 2020 by Dr. Alexandra S. Ruggiero, a Board-certified family medicine
physician, who noted appellant’s history of injury and diagnosed a muscle strain. In a duty status
form (Form CA-17) dated August 20, 2020, Dr. Ruggiero diagnosed lumbar and right shoulder
strains due to the claimed August 20, 2020 employment incident.
OWCP subsequently received CA-17 form reports dated August 27 and September 3
and 17, 2020 diagnosing low back muscle sprain/pain/low back pain, and narrative reports dated

August 27 and September 3, 2020 diagnosing acute midline low back pain without sciatica and
acute left-side low back pain without sciatica from Dr. Manoj Garg, an osteopath Board-certified
in family practice. In August 27, 2020 x-ray report, Dr. Christina Pinto, an osteopath Boardcertified in family medicine, diagnosed mild multilevel degenerative disc disease most pronounced
in the lower thoracic and lower lumbar spine. OWCP also received an August 27, 2020 report
from Dr. Mark Mulak, a chiropractor, who diagnosed lower back and thorax muscle and tendon
strains and thoracic and lumbar segmental and somatic dysfunction, which he attributed to the
claimed August 18, 2020 employment incident.
By decision dated October 2, 2020, OWCP denied the claim, finding that appellant failed
to submit any medical evidence diagnosing a medical condition in connection with the accepted
August 24, 2020 employment incident. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
Subsequent to the denial of her claim, OWCP received an October 1, 2020 Form CA-17
from Dr. Garg diagnosing low back and right shoulder strain, and an October 22, 2020 Form
CA-17 which diagnosed lumbar strain from Barbara Burchard, an advanced practice registered
nurse.
On October 23 and November 2, 2020 appellant requested reconsideration. She submitted
a November 4, 2020 report and referral by Ms. Burchard.
By decision dated January 28, 2021, OWCP denied modification. It found that the medical
evidence of record did not include a valid diagnosis from a qualified physician under FECA.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP denied appellant’s claim finding that the medical evidence of record did not
establish a diagnosed medical condition. It however failed to review the August 20, 2020 Part B
attending physician’s report and August 20, 2020 Form CA-17 report from Dr. Ruggiero. In the
case of William A. Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to
consider all evidence properly submitted by a claimant and received by OWCP befo re the final
decision is issued. As the Board’s decisions are final as to the subject matter appealed, it is crucial
that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 2 Because
OWCP did not review and address the August 20, 2020 medical evidence from Dr. Ruggiero, the
Board cannot review such evidence for the first time on appeal.3 The case will therefore be
remanded to OWCP to enable a proper consideration of the evidence that was of record at the time

1

41 ECAB 548 (1990).

2

Id.; see also E.P., Docket No. 20-0655 (issued March 17, 2021); J.S., Docket No. 18-1111 (issued April 30, 2020);
S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004).
3

20 C.F.R. § 501.2(c). A.C., Docket No. 20-0917 (issued January 27, 2021); E.P., id.

2

of its January 28, 2021 decision to be followed by an de novo decision regarding appellant’s
request for reconsideration. Accordingly,
IT IS HEREBY ORDERED THAT the January 28, 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 15, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF TREASURY, BUREAU OF
PUBLIC DEBT, Parkersburg, WV, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1284
Issued: March 26, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 28, 2011 appellant, through her representative, filed a timely appeal from a
March 4, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying her
schedule award claim. The Board assigned Docket No. 11-1284.
Having reviewed the case record submitted by OWCP, the Board finds that this case is
not in posture for a decision.
On February 3, 2009 appellant, then a 67-year-old financial systems analyst, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a left leg and knee injury on
October 27, 2008 when she slipped on a drain in the middle of the sidewalk. By decision dated
May 14, 2009, OWCP denied her claim on the grounds that the evidence submitted was not
sufficient to establish fact of injury. On June 8, 2009 appellant, through her representative,
requested a telephone hearing before an OWCP hearing representative.
By decision dated October 30, 2009, OWCP accepted appellant’s claim for left contusion
of knee, sprain of knee and left collateral ligament.
On February 3, 2010 appellant filed a claim for a schedule award. By letter dated
February 12, 2010, OWCP informed her that she should provide a physician’s assessment, based

on loss of function of the lower extremity, in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).1 Appellant was provided a form letter to give her physician for a lower extremity
impairment evaluation and given 30 days to respond.
By decision dated March 23, 2010, OWCP denied appellant’s claim for a schedule award,
finding that she had not provided the requested medical evidence.
On March 28, 2010 appellant, through her representative, requested a telephone hearing
before an OWCP hearing representative. At the July 1, 2010 hearing, counsel stated that
appellant’s physician could not provide an impairment rating for the left collateral ligament since
she had a total knee replacement of the left knee.
In a July 22, 2010 medical report, Dr. Keith Berand, a treating physician, reported that
appellant underwent a left total knee arthroplasty and had reached maximum medical
improvement.
By decision dated September 20, 2010, an OWCP hearing representative found the
evidence insufficient to establish permanent impairment and affirmed the March 23, 2010
decision.
On February 11, 2011 appellant, through her representative, requested reconsideration of
the September 20, 2010 OWCP decision. In support of her request, she submitted an August 26,
2010 medical report from Dr. Martin Fritzhand, a Board-certified urologist, whose report
provided information regarding her medical history, a description of the October 27, 2008 work
injury and findings on physical examination. Dr. Fritzhand provided an impairment evaluation,
using Chapter 16 (The Lower Extremities), of the sixth edition of the A.M.A., Guides,
concluding that, based on Table 16-3 strain, tendinitis assuming mild motion deficits, appellant
sustained a six percent permanent impairment of the left lower extremity.
By decision dated March 4, 2011, OWCP found the medical evidence insufficient to
establish permanent impairment and affirmed the September 20, 2010 decision. The senior
claims examiner noted that Dr. Fritzhand’s opinion was not based on the accepted conditions or
actual measurements of motion deficits.
In this case, the hearing representative made a medical determination without the benefit
of medical advice or review by an OWCP medical adviser that appellant’s injury did not cause or
contribute to any permanent impairment. OWCP procedures provide that, after obtaining all
necessary medical evidence, the file should be routed to the medical adviser for an opinion
concerning the nature and percentage of any impairment in accordance with the A.M.A.,
Guides.2 In this case, none of the medical evidence was forwarded to the medical adviser for
review. For these reasons, the March 4, 2011 decision will be set aside and the case remanded to
1

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

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

2

OWCP for review of the medical record by the medical adviser. Following such development as
OWCP deems necessary, it shall issue an appropriate merit decision.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 4, 2011 decision be set aside and the case remanded for further development consistent
with this order.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Clearfield, UT, Employer
__________________________________________
Appearances:
David J. Holdsworth, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-1671
Issued: May 6, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On September 28, 2020 appellant, through counsel, filed a timely appeal from a June 4,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 20-1671.
On October 31, 2004 appellant, then a 50-year-old plastic worker, filed a notice of
occupational disease (Form CA-2) alleging binaural hearing loss due to noise exposure, while in
the performance of duty. OWCP accepted the claim on May 6, 2005 for binaural noise-induced
hearing loss.
By decision dated August 16, 2005, OWCP granted appellant a schedule award for 14
percent binaural hearing loss.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

On September 29, 2018 appellant filed a claim for an additional schedule award (Form
CA-7).
By decision dated May 16, 2019, OWCP granted appellant an additional schedule award
for 31 percent binaural hearing loss.
On May 12, 2020 appellant, through counsel, requested reconsideration of the May 16,
2019 schedule award decision. In a letter accompanying the request for reconsideration, counsel
argued that appellant had an increased hearing loss and tinnitus, based upon his December 4, 2019
audiogram and tinnitus handicap inventory. Counsel also argued that appellant lost his job at the
employing establishment due to his accepted condition and that he had not been able to maintain
other employment due to his hearing loss, therefore appellant was totally disabled from work due
to his accepted injury.2
By decision dated June 4, 2020, OWCP denied appellant’s reconsideration request, finding
that the request did not raise substantive legal questions nor include new and relevant evidence.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the arguments counsel
submitted in support of the reconsideration request.3 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations.4 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation.5 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons.6 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.7
In denying appellant’s April 27, 2020 reconsideration request, OWCP failed to analyze
counsel’s arguments on reconsideration. The June 4, 2020 decision simply noted: “your letter
neither raised substantive legal questions nor included new and relevant evidence, it is insufficient
to warrant a review of our decision of our prior decision at this time.”
2

The referenced December 4, 2019 audiogram and tinnitus handicap inventory is not found in the case record.

3

See J.K., Order Remanding Case, Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case,
Docket No. 20-0450 (issued August 13, 2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued
July 27, 2020).
4
See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see also
20 C.F.R. § 10.607(b).
5

5 U.S.C. § 8124(a).

6

20 C.F.R. § 10.126.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

2

The Board will therefore set aside OWCP’s June 4, 2020 decision and remand the case for
an appropriate decision on appellant’s reconsideration request, which describes the arguments
submitted on reconsideration and provides detailed reasons for accepting or rejecting the
reconsideration request.8 Accordingly,
IT IS HEREBY ORDERED THAT the June 4, 2020 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: May 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

5 U.S.C. § 8124(a). All evidence submitted should be reviewed and discussed in the decision. Evidence received
following development that lacks probative value should also be acknowledged. Whenever possible, the evidence
should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-2012
Issued: January 23, 2007

Case Submitted on the Record

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

JURISDICTION
On September 5, 2006 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated May 2 and July 21, 2006. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an asbestos-related condition in the performance of duty; and (2) whether the Office
properly denied appellant’s request for an oral hearing before an Office hearing representative.
FACTUAL HISTORY
On June 6, 2005 appellant, a 61-year-old air conditioning equipment mechanic, filed a
Form CA-2 claim for benefits, alleging that he developed an asbestos-related condition caused by
factors of his employment; i.e., long-term exposure to asbestos.

In support of his claim, appellant submitted voluminous records from the employing
establishment indicating that he had been exposed to asbestos from 1985 to 2004. Appellant also
submitted medical records demonstrating he was treated for bronchial, respiratory, cardiovascular
and pleural problems during this period.
By letter dated August 25, 2005, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. The
Office asked appellant to submit a comprehensive medical report from his treating physician
describing his symptoms and the medical reasons for appellant’s condition and an opinion as to
whether his claimed condition was causally related to his federal employment. The Office
requested that appellant submit the additional evidence within 30 days.
Appellant submitted a June 19, 1997 report from Dr. Marc Wilkenfeld, Board-certified in
preventive medicine. Dr. Wilkenfeld stated:
“I have reviewed the test results and other information obtained at [appellant’s]
medical screening which was conducted on May 21, 1997. He is a 54-year-old
male with a history of shortness of breath when rushing on level ground or walking
up a slight hill. This has been present since the 1970’s. The shortness of breath
prevents him from keeping up with people his own age. He also complains of
cough productive of yellow sputum as well as cough productive of blood streaked
sputum. He also notes that he coughs up blood. He has pleuritic chest pain,
difficulty swallowing, abdominal pain and recent changes in bowel habits. He also
notes blood in his stools. Given the severity of his complaints, he should
immediately follow up for all of these with his personal physician. He has no
history of rib fracture or tuberculosis.”
Dr. Wilkenfeld noted that appellant had been exposed to large amounts of asbestos while
working as a pipe fitter and air conditioning mechanic since 1984. He concluded:
“In summary, [appellant] had a history of significant occupational exposure to
asbestos over many years. I believe within a reasonable degree of medical certainty
that the pleural plaques detected on chest x-ray occurred as a direct result of this
asbestos exposure.”
In a report dated July 22, 2001, Dr. Albert J. Belli, an osteopath and a specialist in internal
medicine, reviewed appellant’s history of significant asbestos exposure, noted abnormal chest
radiography and physical examination findings and concluded that a diagnosis of asbestos-related
pleural disease was established within a reasonable degree of medical certainty. He related that
spirometry findings revealed evidence of neither obstructive nor restrictive process; the flow
volume loop was within normal limits. Dr. Belli reviewed a May 13, 1993 chest x-ray and stated:
“There [was] no respiratory failure present on the lateral view. The lungs appeared
free of active disease. There was no radiographic evidence of interstitial fibrosis
note and no lung masses seen. However, there is pleural thickening present in both

2

hemothoraces, which is greater on the right side than the left. [There was] no
pleural diaphragmatic calcification identified. The findings were consistent with
asbestos-related pleural disease.”
Dr. Belli concluded that, due to appellant’s abnormal physical findings, borderline
spirometry and history of shortness of breath, appellant should undergo complete pulmonary
function studies in the future.
In order to determine appellant’s current condition, the Office referred appellant, the
medical history and a statement of accepted facts to Dr. Stephen A. Mette, Board-certified in
internal medicine. In an April 19, 2006 report, he concluded that based on the physical
examination, history of alleged exposure, evaluation of chest x-ray and pulmonary function tests,
there was no evidence of asbestos-related lung disease. Dr. Mette noted that appellant worked as
a pipefitter at a Veterans Administration Hospital in 1981 where he was exposed to asbestos. He
stated that appellant was also exposed to asbestos while working at the employing establishment
from 1985 through 2004. Dr. Mette indicated, however, that pulmonary function testing
performed in his laboratory did not support a diagnosis of asbestosis. He stated that although
appellant showed a moderate reduction in the diffusing capacity for carbon monoxide, it
corrected to normal for alveolar volume; there was no restrictive impairment. In addition,
appellant had no evidence of interstitial lung disease on chest radiograph restrictive impairment.
Dr. Mette concluded that there were no findings to suggest asbestosis or pleural
abnormalities. He diagnosed dyspnea due to obesity and poor conditioning.
By decision dated May 2, 2006, the Office denied appellant’s claim, finding that the
medical evidence of record indicated that he did not sustain an asbestos-related condition in the
performance of duty. The Office accepted that appellant was exposed to asbestos material while
employed with the employing establishment. However, the Office found that there was no
evidence that appellant’s exposure resulted in any asbestos-related disease. The Office found
that the weight of the medical evidence was represented by Dr. Mette, the second opinion
examiner, whose thorough examination and testing revealed no evidence of any asbestos-related
illness or disease.
By letter postmarked June 6, 2006, appellant requested an oral hearing.
By decision dated July 21, 2006, the Office denied appellant’s request for an oral hearing.
The Office stated that appellant’s request was postmarked June 6, 2006, which was more than
30 days after the issuance of the Office’s May 2, 2006 decision and that he was, therefore, not
entitled to a hearing as a matter of right. The Office nonetheless considered the matter in relation
to the issue involved and denied appellant’s request on the grounds that the issue was factual and
medical in nature and could be addressed through the reconsideration process by submitting
additional evidence.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable 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.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed asbestos-related condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision as a conflict exists in the
medical opinion evidence as to whether appellant’s claimed asbestos-related condition is
causally related to factors of his employment.
In support of his claim, appellant submitted reports from Drs. Wilkenfeld and Belli.
Dr. Wilkenfeld reviewed the test results and other information from appellant’s 1997 medical
screening. He noted a history of shortness of breath when rushing on level ground or walking up a
slight hill, present since the 1970’s. Appellant also related having coughed productive of yellow
sputum and blood streaked sputum, in addition to coughing up blood. Dr. Wilkenfeld stated that
appellant had pleuritic chest pain, difficulty swallowing and abdominal pain, recent changes in
bowel habits and blood in his stools. Given appellant’s 20-year exposure to large amounts of
asbestos while working as a pipefitter and air conditioning mechanic, Dr. Wilkenfeld believed that
the pleural plaques detected on chest x-ray occurred as a direct result of this asbestos exposure.
Dr. Belli opined that, based an appellant’s history of significant asbestos exposure, abnormal chest
radiograph and physical examination findings, a diagnosis of asbestos-related pleural disease was
established within a reasonable degree of medical certainty. He stated that spirometry findings
revealed evidence of neither obstructive nor restrictive process and noted the absence of respiratory
failure on the lateral x-ray. Dr. Belli also noted that appellant’s lungs appeared free of active
disease, with no radiographic evidence of interstitial fibrosis and no lung masses seen. He did
opine, however, that there was pleural thickening present in both hemothoraces and that the
findings were consistent with asbestos-related pleural disease. Dr. Belli concluded that, due to
appellant’s abnormal physical findings, borderline spirometry and history of shortness of breath
this individual should undergo complete pulmonary function studies in the future.
The Office found that the evidence appellant submitted regarding whether he had an
asbestos-related condition was equivocal and referred him to Dr. Mette for a second opinion
examination. Dr. Mette stated on April 19, 2006 that there was no evidence of asbestos-related
lung disease. He relied on a physical examination, history of alleged exposure, evaluation of
chest x-ray and pulmonary function tests. While Dr. Mette acknowledged that appellant had a
20-year exposure to asbestos, he asserted that pulmonary function testing and radiographic
testing performed in his laboratory did not support a diagnosis of asbestosis or restrictive
impairment. He concluded that there were no findings to suggest asbestosis or pleural
abnormalities.
Section 8123(a) of the Act6 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.
The Board finds that a conflict in medical opinion exists between appellant’s treating
physicians Drs. Wilkenfeld and Belli and the Office’s second opinion physician, Dr. Mette, as to
whether appellant has an asbestos condition causally related to factors of his federal
employment. To resolve this conflict, the Office shall refer appellant, together with the medical
record and a statement of accepted facts, to an appropriate impartial medical specialist for a well6

5 U.S.C. § 8123(a).

5

reasoned opinion as to whether appellant does have an employment-related asbestos condition.
After such further development as necessary, the Office shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of and Office’s final
decision.7 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.8 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.9 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.10
ANALYSIS -- ISSUE 2
In the present case, because appellant’s June 6, 2006 request for a hearing was
postmarked more than 30 days after the Office’s May 2, 2006 decision denying compensation for
a claimed asbestosis-related condition, he is not entitled to a hearing as a matter of right. The
Office considered whether to grant a discretionary hearing and correctly advised appellant that
he could pursue his claim through the reconsideration process. As appellant may address the
issue in this case by submitting to the Office new and relevant evidence with a request for
reconsideration, the Board finds that the Office properly exercised its discretion in denying
appellant’s request for a hearing. The Board, therefore, affirms the Office’s July 21, 2006
decision denying appellant an oral hearing by an Office hearing representative.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant has an
asbestosis-related condition sustained in the performance of duty. This case is remanded to the
Office for further development to be followed by an appropriate decision. The Board also finds
that the Office properly denied appellant’s request for an oral hearing before an Office hearing
representative.

7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. § 10.131(a)(b).

9

William E. Seare, 47 ECAB 663 (1996).

10

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2006 decision be set aside and the
July 21, 2006 decision of the Office of Workers’ Compensation Programs’ be affirmed.
Issued: January 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, DETROIT NETWORK )
DISTRIBUTION CENTER, Allen Park, MI,
)
Employer
)
__________________________________________ )
A.F., Appellant

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

Docket No. 15-1555
Issued: December 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 13, 2015 appellant filed a timely appeal of an April 10, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left wrist
condition due to factors of her federal employment.
FACTUAL HISTORY
On February 9, 2015 appellant, then a 30-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she developed tendinitis of the left wrist due to
1

5 U.S.C. § 8101 et seq.

“repetitive movement on a daily basis while sorting oversized packages.” She indicated that the
injury occurred on June 7, 2014.
Dr. Heidi R. Kemmer, an osteopath, examined appellant on February 9, 2015 and
diagnosed wrist tenosynovitis. Appellant provided a history to Dr. Kemmer of pain in the left
wrist on February 7, 2015 while separating packages at work and of left wrist injury on
February 9, 2015. Dr. Kemmer provided work restrictions. Appellant submitted notes from
Ronald E. Lambert, a physician assistant, and notes from Emily E. Elant, a physical therapist.
In a letter dated February 25, 2015, OWCP requested additional factual and medical
evidence in support of appellant’s claim and afforded 30 days for a response. It provided
appellant with the definitions of occupational disease and traumatic injury and asked her to
determine, based on these definitions, which type of claim she was filing.
The employing establishment provided appellant with an authorization for examination
and/or treatment (Form CA-16) on February 18, 2015 which was signed by the physician
assistant, Mr. Lambert. Appellant also submitted duty status reports CA-17 forms dated
February 17 and 27, 2015 signed by Mr. Lambert.
Appellant provided a statement listing her employment duties of moderate to heavy
lifting and carrying of sacks of mail and parcels. She described lifting oversized packages
weighing between 25 and 75 pounds continuously for 10 to 12 hours a day for 6 days a week.
Appellant confirmed that she was claiming an occupational disease.
Dr. Angela Schultz, a Board-certified family practitioner, described appellant’s condition
on February 8, 2015 as “left wrist pain after lifting packages at work.” She reported that
appellant denied any specific trauma to her hand. Dr. Schultz diagnosed left wrist sprain and
provided work restrictions. She opined, “This patient’s injury and pain was a direct result of
lifting a package at work. [Appellant] did not state she had any significant pain immediately
prior to the injury.”
By decision dated April 10, 2015, OWCP denied appellant’s claim, finding that she had
not established a causal relationship between her diagnosed condition and her implicated job
duties. It found that appellant had not submitted the necessary medical evidence providing
reasoning describing the relationship between appellant’s diagnosed condition and her
employment.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
2

After OWCP’s April 10, 2015 decision, appellant submitted additional evidence. As OWCP did not consider
this evidence in reaching a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).
3

5 U.S.C. §§ 8101-8193.

2

FECA and that the claim was timely filed within the applicable time limitation period of FECA,
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.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”6 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.7
ANALYSIS
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between her diagnosed condition of left wrist sprain and her
implicated employment duties.
Appellant filed a claim for a traumatic injury on February 9, 2015, but later clarified that
she believed that her left wrist sprain was due to employment duties for a period longer than a
single workday or shift. She attributed her condition to lifting oversized packages weighing
between 25 and 75 pounds continuously for 10 to 12 hours a day 6 days a week as a mail
processing clerk. The Board finds that OWCP properly developed appellant’s claim as an
occupational disease.
The Board further finds that the medical evidence consisting of reports from
Drs. Kemmer and Schultz are not sufficiently detailed and well reasoned to establish appellant’s
occupational disease claim. Dr. Kemmer did not describe appellant’s implicated employment
duties over a period of time, instead indicating that appellant developed left wrist pain on
February 9, 2015 while lifting packages at work. She diagnosed left wrist tenosynovitis and did

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

20 C.F.R. § 10.5(q).

7

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

not offer a clear opinion whether she believed that this condition was due to appellant’s
employment duties.
Dr. Schultz diagnosed left wrist sprain, and noted that appellant attributed her left wrist
pain to lifting packages at work. She concluded, “This patient’s injury and pain was a direct
result of lifting a package at work.” This report, although supportive, does not clearly describe
appellant’s employment duties of lifting heavy packages on a daily basis and does not provide
any explanation of why and how those duties caused the diagnosed condition. Without medical
reasoning explaining the nature of the relationship between appellant’s established work duties
and her diagnosed condition, this report is not sufficient to meet appellant’s burden of proof.
The reports of Mr. Lambert, the physician assistant, and Ms. Elant, a physical therapist,
do not constitute medical evidence as physical therapists8 and physician assistants9 are not
considered physicians under FECA. As neither Mr. Lambert nor Ms. Elant is a physician, their
notes do not constitute competent medical evidence and cannot meet appellant’s burden of proof
to establish her occupational disease claim.10
The Board notes that the employing establishment issued a Form CA-16 authorization for
medical treatment on February 18, 2015. Where an employing establishment properly executes a
Form CA-16, which authorizes medical treatment as a result of an employee’s claim for an
employment-related injury, the Form CA-16 creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of
the action taken on the claim.11 The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.12 In this
case, it is unclear whether OWCP paid for the cost of appellant’s examinations. On return of the
case record, OWCP should further address the issue.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

8

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 .U.S.C § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
9

D.S., Docket No. 15-0821 (issued July 2, 2015).

10

F.D., Docket No. 15-0868 (issued August 10, 2015).

11

Tracey P. Spillane, 54 ECAB 608 (2003); A.B., Docket No. 15-1002 (issued August 14, 2015).

12

20 C.F.R. § 10.300(c).

13

Spillane, supra note 11.

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish a left wrist
condition due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Shannon Bravo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1349
Issued: February 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 29, 2020 appellant, through counsel, filed a timely appeal from a January 7, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on June 27, 2019, as alleged.
FACTUAL HISTORY
On June 30, 2019 appellant, then a 55-year-old public health advisor, filed a traumatic
injury claim (Form CA-1) alleging that at 1:50 p.m. on June 27, 2019 she sustained a broken right
ankle, as well as bruises and abrasions to her left knee, while in the performance of duty. She
recounted that she was walking from a terminal at John F. Kennedy (JFK) Airport to her car in
order to go to the airport’s parking office when her right ankle went out from under her, turned in
and she fell forward, landing on her left knee. On the reverse side of the claim form her supervisor
checked a box marked “No” to indicate her opinion that appellant was not in the performance of
duty as she was going to renew her parking pass. She indicated that parking passes were purchased
at JFK Airport to allow employees to park their personal vehicles on the property of the Port
Authority of New York and New Jersey (Port Authority) and that parking passes were usually
obtained on breaks or at the end of their shifts. Appellant stopped work the same day of the
incident.
In a July 5, 2019 medical note, Christopher Dominique, a physician assistant, indicated that
appellant was seen in his office that day for a left knee and right ankle injuries she sustained on
June 27, 2019 while at work. He advised that she was unable to work and would be reevaluated
on July 22, 2019 with a plan to return to work on July 29, 2019. In a note of even date,
Mr. Dominique diagnosed primary localized osteoarthritis of the left knee, a sprain of the anterior
talofibular ligament of the right ankle and a tear of the medial meniscus of the left knee. He
referred appellant to physical therapy to treat her conditions.
In a July 19, 2019 report, Mary Yuricic, a physical therapist, evaluated appellant for
treatment related to sprain of the other ligament of the right ankle, complex tear of the left knee
medial meniscus and left knee primary osteoarthritis that she encountered on June 27, 2019.
In a July 22, 2019 medical note, Michael Zucker, a physician assistant, opined that
appellant was unable to perform her work duties. He explained that she was being treated for a
right ankle sprain that was exacerbating previously diagnosed lumbar spine pain.
By development letter dated August 6, 2019, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation was not controverted by the employing establishment and, thus, limited expenses had
therefore been authorized. However, a formal decision was now required. It advised her of the
factual and medical evidence necessary to establish her claim and provided a factual questionnaire
inquiring about the circumstances surrounding her claimed injury for completion. OWCP afforded
appellant 30 days to provide the necessary information.
In a June 27, 2019 medical report, Dr. Nabil Farakh, a Board-certified orthopedic surgeon,
evaluated appellant for right ankle and foot pain she encountered at work after she tripped and fell.
He also made note of her history of chronic left knee pain. Dr. Farakh diagnosed an avulsion chip

2

fracture of the anterior lateral aspect of the distal tibia with a nondisplaced fracture of the medial
malleolus and a strain of other specified muscles and tendons at the ankle and foot level, right foot.
In a medical report dated June 27, 2019 and a state workers’ compensation form report
dated August 16, 2019, Dr. Paul Cooperman, Board-certified in family medicine, evaluated
appellant for complaints of right ankle pain due to a June 27, 2019 work-related injury. He
diagnosed a fracture of the right ankle and an abrasion of the left knee.
In medical reports dated July 5 and 22, 2019, Dr. Steven Rokito, a Board-certified
orthopedic surgeon, saw appellant for right ankle pain related to the alleged June 27, 2019
employment incident. He diagnosed a tear of the medial meniscus of the left knee, a sprain of the
anterior talofibular ligament of the right ankle and primary local osteoarthritis of the left knee.
In an August 7, 2019 medical report, Dr. Rokito reevaluated appellant for her complaints
of left knee and right ankle pain. Appellant informed him that her lower back pain had been
aggravated because of gait changes. Dr. Rokito noted that appellant underwent surgery on
August 1, 2019 to remove a cyst and had significant pain relief in her right leg and ankle following
her surgery. He diagnosed a sprain of the anterior talofibular ligament, primary localized
osteoarthritis of the left knee, and a complex tear of the medial meniscus of the left knee. Appellant
also attached multiple photographs of the injuries on her right and left legs. In a medical note of
even date, Mr. Dominique cleared appellant to return to work on August 12, 2019.
In an August 19, 20193 letter, Dr. Rokito reviewed the events of the alleged June 27, 2019
employment incident where appellant indicated she was walking from her office at JFK airport to
her car in order to go to the parking office and renew her parking pass, which she was required to
do monthly. Appellant stated that she slipped in the parking lot, twisted her ankle, and landed on
her left knee. Dr. Rokito diagnosed a sprain of the right ankle more likely than not caused by her
slip and fall and reviewed her history of treatment for her right ankle, left knee, and spine. He
indicated that she was cleared to return to work.
In an August 23, 2019 response to OWCP’s development questionnaire, appellant again
explained the events of the June 27, 2019 employment incident in which she was walking to her
car in the parking lot across the street from the airport terminal and slipped and fell, injuring her
right ankle and left knee. She indicated that she was a field employee that worked at the JFK
Airport terminal full time and not at the employing establishment’s headquarters. After her injury,
appellant immediately notified her supervisor, filed a report and went to an urgent care center as
her ankle and knee began to swell and hurt. She discussed her history of medical treatment related
to her injury and also indicated that she had previously torn her meniscus, but it did not require
treatment. Appellant asserted that she was required to renew her parking permit with the airport
as a part of her job and that she had done so each month for 27 years. She also indicated that she
would be submitting emails from multiple supervisors that would demonstrate that parking was
something that was addressed during the workday. Appellant acknowledged that the parking lot
was owned and operated by the Port Authority and not the employing establishment, but contended
that she was required to park there because she was a part of the federal government’s parking
program. She indicated that A.L., a supervisor ordered her to participate in the program, and that
3

Dr. Rokito’s letter was dated August 19, 2018, however, this appears to be a typographical error.

3

she was required to pay for parking. Appellant asserted that she was on duty when the injury
occurred and that going to the parking office was incidental to her employment duties. She noted
that a previous supervisor claimed that going to the parking office was “a part of the job,” that the
time allotted in a break would not be enough time in order to complete the task and that station
staff routinely went to the parking office in order to renew their parking passes.
Appellant also submitted emails dated from December 2, 2013 to October 15, 2014 where
the renewal process for parking passes was discussed. In a December 2, 2013 email, H.G., a
supervisor, designated a time for her to pick up her parking pass as a part of Tuesday duty station
responsibilities. In the October 15, 2014 email, A.L. provided a letter for her to take to the parking
office in order to obtain her parking pass that day.
By decision dated September 10, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her injury and/or medical
condition arose during the course of employment and within the scope of compensable work
factors.
OWCP continued to receive evidence. In reports dated July 23 and 25, 2019, Ms. Yuricic
provided updates on appellant’s physical therapy treatment related to her right ankle and left knee
injuries.
In an October 14, 2019 memorandum, appellant, through counsel, requested
reconsideration of OWCP’s September 10, 2019 decision
Counsel attached emails from appellant and her supervisors. A June 2, 2014 email revealed
that a supervisor instructed her to retrieve a parking coupon book from the parking office and also
that she was the only employee who routinely used the parking coupon. In an email dated
October 14, 2014, A.L. instructed her to report to the parking office at 7:00 a.m. so that she would
not have to pay for parking again. She also provided a May 27, 2016 email demonstrating that her
normal work schedule was from 7:00 a.m. to 3:30 p.m. Attached to the emails, counsel included
a letter from Y.H., another supervisor, indicating that appellant was a current federal employee
and was, therefore, entitled to the federal employee parking rate.
In a June 27, 2019 diagnostic report, Curtis Hammerman, a Board-certified radiologist,
performed an x-ray of appellant’s right ankle, finding a fracture involving the lateral articular
surface of the tibia.
In a post injury evaluation form of even date, Dr. Cooperman diagnosed a right ankle
avulsion fracture.
In a November 26, 2019 development letter, OWCP requested that the employing
establishment provide additional factual information regarding appellant’s claim, including
information about the parking lot and policies regarding use of the parking lot where she was
injured. It afforded the employing establishment 30 days to respond. No additional evidence was
received.
By decision dated January 7, 2020, OWCP denied modification of its September 10, 2019
decision.
4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”8 To arise in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be stated to be engaged in the
master’s business; (2) at a place when he or she may reasonably be expected to be in connection
with his or her employment; and (3) while he or she was reasonably fulfilling the duties of his or
her employment or engaged in doing something incidental thereto.9
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable.10 The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have
ownership and control of the place of injury, the place may nevertheless still be considered part of
the “premises.”11

4

Supra note 3.

5

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7
S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
8

C.L., Docket No. 19-1985 (issued May 12, 2020); S.F., Docket No. 09-2172 (issued August 23, 2010); Valerie C.
Boward, 50 ECAB 126 (1998).
9

S.V., Docket No. 18-1299 (issued November 5, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
10

R.K., Docket No. 18-1269 (issued February 15, 2019); Narbik A. Karamian, 40 ECAB 617, 618 (1989); Eileen R.
Gibbons, 52 ECAB 209 (2001).
11

C.L., supra note 8; Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

5

The Board has also held that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the garage were assigned by the employing establishment to its
employees, whether the parking areas were checked to see that no authorized cars were parked in
the garage, whether parking was provided without cost to the employees, whether the public was
permitted to use the garage, and whether other parking was available to the employees. Mere use
of a parking facility alone is insufficient to bring the parking garage within the premises of the
employing establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In her August 23, 2019 response to OWCP’s development questionnaire, appellant
indicated that the parking lot was owned and operated by the Port Authority ,but that she was
required to park their because she was a part of the federal government’s parking program. She
asserted that her supervisor ordered her to participate in the program and that she was required to
pay for the parking as a part of the program. OWCP’s procedures provide that it should obtain
relevant information from an official superior if it requires clarification before determining
whether or not the employee was on the premises.13 Its procedures further provide that it should
request that an official superior confirm whether the parking facilities are owned, controlled, or
managed by the employing establishment.14 While OWCP sent a November 26, 2019
development letter to the employing establishment requesting this information, it did not receive
a response. As such, it failed to obtain a statement from the employing establishment in accordance
with its procedures.
The lack of a response from the employing establishment also precludes a full and fair
adjudication of whether appellant was in the performance of duty at the time of her fall. OWCP
requested information from the employing establishment regarding ownership, control and
permitted usage of the parking lot. Appellant also claimed that her supervisor ordered her to
participate in the federal government’s parking program. It is unclear as to whether her
participation in the federal government’s parking program was a required function of her
employment because the employing establishment did not respond to OWCP’s November 26,
2019 development letter. OWCP’s procedures provide that it should obtain relevant information
from an official supervisor to determine whether the act was one which is regarded as a normal
incident of the work experience, or was one which is foreign or extraneous to the work experience,
12

C.L., supra note 8; R.K., supra note 10; Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 2
ECAB 500 (1991); Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982); R.M., Docket No.
07-1066 (issued February 6, 2009).
13

Id.

14

Id.

6

and the extent to which the employee diverted from duty to perform the act.15 It, however, failed
to obtain a statement for the employing establishment in accordance with its procedures prior to
finding that appellant was not in the performance of duty when her injury occurred.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source.16
The Board finds that OWCP insufficiently developed the evidence regarding whether she was on
the premises of the employing establishment and whether she was in the performance of duty at
the time of injury.17
Although it is appellant’s burden to establish his claim, OWCP is not a disinterested arbiter,
but rather, shares responsibility in the development of the evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
government source.18
On remand OWCP shall obtain from the employment establishment the information
requested in its November 26, 2019 development letter.19 Further, as appellant contended that she
was performing an accepted practice of employment at the time of her injury, the employing
establishment shall address this contention. Following this and such other further development as
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

Id at Chapter 2.804.7(b)(1) (August 1992).

16

D.C., supra note 14.

17

Id.; see also supra note 14 at Chapter 2.800.5(d)(1) (if an employing establishment fails to respond to a request
for comments on the claimant’s allegations, the CE may usually accept the claimant’s statements as factual. However,
acceptance of the claimant’s statements as factual is not automatic in the absence of a reply from the employing
establishment, especially in instances where performance of duty is questionable. The Board has consistently held
that allegations unsupported by probative evidence are not established).
18

Judy C. Rogers, 54 ECAB 693 (2003).

19

The Board notes that OWCP regulations and the FECA procedure manual provide that, in the absence of a reply
from the employing establishment, OWCP may accept the allegation of a claimant as factual -- if the claimant’s
statement is sufficiently clear and detailed as to matters of which he or she is knowledgeable. See 20 C.F.R.
§ 10.117(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.10(a)
(June 2011). See also J.C., Docket No. 15-1517 (issued February 25, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the January 7, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OFJUSTICE, U.S. MARSHALS
SERVICE, Lexington, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0163
Issued: July 17, 2019

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 31, 2018 appellant filed a timely appeal from August 9 and October 17, 2018
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP abused its discretion by denying appellant’s request
for an attendant’s allowance; and (2) whether OWCP abused its discretion in denying his request
for authorization of an electric/motorized wheelchair and lift.
FACTUAL HISTORY
On October 25, 2000 appellant, then a 46-year-old deputy U.S. Marshal, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he slipped and fell when walking up slick
steps while in the performance of duty. OWCP initially accepted the claim for lumbar strain. It
subsequently expanded acceptance of the claim to include the additional condition of a herniated
nucleus pulposus at L4-5. Appellant stopped work on the date of injury. He returned to work for
one day on November 13, 2000, but again stopped work. Appellant then returned to light-duty
work on December 11, 2000, but the employing establishment was unable to accommodate
appellant’s restrictions which were in effect as of May 5, 2001. He received wage-loss benefits
on the periodic rolls.
On June 3, 2017 appellant underwent an authorized laminectomy with decompression at
L2-3, L3-4, and L4-5 as well as a discectomy, partial at L2-3 and L3-4 on the left side.
On October 16, 2017 appellant requested an attendant allowance. He indicated that his
condition would never improve and his wife had to quit her job to become his caretaker indicating
that he could not put his shoes and socks on.
In a letter dated October 23, 2017, OWCP advised appellant that it required additional
information from him and his treating physician in order to determine whether it could authorize
payment for services of an attendant. It noted that 20 C.F.R. § 10.314 allowed payment for services
of an attendant where medical documentation supported that he required assistance to care for
basic personal care needs. OWCP advised that services must be rendered by a home health aide,
licensed practical nurse, or similarly trained individual. It attached a Form CA-1090 for
appellant’s treating physician to complete and submit, so that he could explain and support with
medical reasons the necessity for an attendant. OWCP also requested that appellant complete a
questionnaire. It afforded him 30 days to submit the requested information.
Dr. Pravian Avula, a Board-certified internist, completed the Form CA-1090 on
November 7, 2017, and indicated that appellant required 24 hours assistance with his activities of
daily living such as bathing, dressing, and entering and exiting vehicles. In a November 9, 2017
report, he opined that appellant was permanently disabled and unable to return to the work force.
Dr. Avula indicated that appellant’s activities of daily living were restricted.
In a February 7, 2018 report, Dr. Phillip Singer, a Board-certified orthopedic surgeon,
noted that appellant had persistent symptoms of pain with sitting and standing, had limited walking
abilities, relied on a cane to walk, and his mobility improved with the use of a walker. He explained
that appellant was disabled because he had multilevel spondylosis of the lower back with
associated nerve element compression and radiculopathy and claudicatory pain. Dr. Singer
advised that the mechanical nature of appellant’s back pain was severe and at multiple levels and

2

that appellant was unable to tolerate most activities of daily living or any activity needed for work.
He also explained that enjoyment of life, such as sitting, was signiﬁcantly curtailed because of his
back conditions. Dr. Singer opined that appellant had a progression of spondylosis of the lower
back and not speciﬁcally just at the L4-5 level.
In a February 27, 2018 report, Dr. David A. West, an osteopath Board-certified in
orthopedic surgery serving as an OWCP second opinion physician, noted that appellant used a
cane and opined that he would benefit from the use of a power wheelchair for ambulation and
convenience.
In a March 14, 2018 report, Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon and
OWCP district medical adviser (DMA), noted that he had reviewed the reports of Dr. Avula and
Dr. West and indicated that he did not agree that the use of a power wheel chair was medically
necessary for appellant’s accepted conditions, but rather would be necessary only for appellant’s
preexisting conditions of obesity and degenerative arthritis. The DMA opined that the equipment
was not medically necessary because weight loss with an aggressive conditioning program would
improve appellant’s endurance and ability to ambulate.
By decision dated May 4, 2018, OWCP denied appellant’s request for an attendant’s
allowance. It found that Dr. Avula and Dr. Singer had not provided a medical opinion supported
by medical rationale sufficient to support the necessity for an attendant.
On May 4, 2018 OWCP requested clarification from Dr. West, the second opinion
physician, regarding the use of a power wheelchair.
On May 14, 2018 appellant requested reconsideration of the May 4, 2018 decision.
In a May 30, 2018 addendum, Dr. West opined that in addition to appellant’s accepted
conditions, his preexisting conditions of obesity and his deconditioned state were aggravated by
his employment injury, which in part caused his current condition. He further opined that appellant
would benefit from a motorized wheelchair to improve his ability to ambulate and convenience.
Dr. West agreed that an aggressive conditioning program would improve appellant’s endurance
and ability to ambulate, but “as a convenience and assistance to his body habitus, a power
wheelchair would also be a reasonable suggestion for him.”
On July 17, 2018 OWCP determined that a conflict had arisen between Drs. Avula, West,
and Ugokwe, the DMA, regarding the requested motorized wheelchair. By letter dated August 7,
2018, it referred appellant for an impartial medical examination with Dr. Joseph Zehner, a Boardcertified orthopedic surgeon.
By decision dated August 9, 2018, OWCP denied modification of the May 4, 2018 decision
regarding the request for an attendant’s allowance. The decision, written by a senior claims
examiner, contained only “xxx” where findings were to be provided.
In a September 6, 2018 report, Dr. Zehner noted appellant’s history of injury, medical
treatment, and physical examination findings. He diagnosed herniated nucleus pulposus at L4-5,
lumbar strain/sprain, degenerative disc disease of the lumbar spine, spinal stenosis of the lumbar
spine, lumbar radiculopathy bilaterally with secondary weakness, and balance deficit. Dr. Zehner
3

found that appellant’s surgical treatment was ineffective and he remained disabled from work.
Regarding the power wheelchair, he explained that it would only be warranted if appellant was
unable to safely ambulate with a cane. Dr. Zehner indicated that appellant could stand up straight
from a chair and ambulate within his home with a cane and therefore, he opined that a power
wheelchair was not warranted.
By decision dated October 17, 2018, OWCP denied authorization for an electric/motorized
wheelchair and lift, finding that the medical evidence of record failed to establish that the
equipment was medically necessary to address the effects of a work-related injury.
LEGAL PRECEDENT -- ISSUE 1
FECA3 provides for an attendant’s allowance under section 8111(a). OWCP may pay an
employee who has been awarded compensation an additional sum of not more than $1,500.00 a
month when it finds that the service of an attendant is necessary constantly because the employee
is totally blind or has lost the use of both hands or both feet or is paralyzed and unable to walk or
because of other disability resulting from injury making him or her so helpless as to require
constant attendance.4
According to 20 C.F.R. § 10.314, in the exercise of discretion afforded by 5 U.S.C. § 8111,
the cost of providing attendant’s services will be paid by OWCP under 5 U.S.C. § 8103, for
personal care services that have been determined to be medically necessary and are provided by a
home health aide, licensed practical nurse, or similarly trained individual. In interpreting section
8103(a), the Board has recognized that OWCP has broad discretion in approving services provided
under FECA to ensure that an employee recovers from his or her injury to the fullest extent possible
in the shortest amount of time. OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on its authority is that of reasonableness.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.5 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons. The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.6

3

Supra note 1.

4

See R.C., Docket No. 15-1373 (issued December 22, 2015).

5

5 U.S.C. § 8124(a).

6

Id.; L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 (issued January 8, 2014);
L.C., Docket No. 12-0978 (issued October 26, 2012); Federal (FECA) Procedure Manual Part 2 -- Claims,
Disallowances, Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to identify
the benefit being denied and the reason for the disallowance).

4

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In its August 9, 2018 decision, OWCP did not provide findings of fact and a statement of
reasons to explain why appellant was denied an attendant allowance. As such, it did not discharge
its responsibility to set forth findings of fact and a clear statement of reasons explaining the
disposition so that appellant could understand the basis for the decision, as well as the precise
defect and the evidence needed to overcome the denial of his traumatic injury claim.7 As noted
above, 5 U.S.C. § 8124(a) provides: “[OWCP] shall determine and make a finding of facts and
make an award for or against payment of compensation.” Also, 20 C.F.R. § 10.126 provides in
pertinent part that the final decision of OWCP shall contain findings of fact and a statement of
reasons. As OWCP did not provide any findings of fact and a statement of reasons, appellant was
unable to understand the precise defect of the claim and the kind of evidence which would
overcome it.8
The case shall therefore be returned to OWCP for a proper decision, to include findings of
fact and a clear and precise statement of reasons as to whether appellant is entitled to an attendant
allowance. Following this and such further development as OWCP deems necessary, it shall issue
a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician that OWCP, under authority delegated by the
Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or aid
in lessening the amount of monthly compensation.9 In interpreting section 8103(a), the Board has
recognized that OWCP has broad discretion in approving services provided under FECA to ensure
that an employee recovers from his or her injury to the fullest extent possible in the shortest amount
of time.10 OWCP therefore has broad administrative discretion in choosing means to achieve this
goal. The only limitation on OWCP’s authority is that of reasonableness.11
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates that
the treatment is necessary and reasonable.12 While OWCP is obligated to pay for treatment of
7

M.J., Docket No. 18-0605 (issued April 12, 2019); K.J., Docket No. 14-1874 (issued February 26, 2015). See
also J.J., Docket No. 11-1958 (issued June 27, 2012).
8

See supra note 6.

9

5 U.S.C. § 8103(a).

10

G.A., Docket No. 18-0872 (issued October 5, 2018); see Dale E. Jones, 48 ECAB 648, 649 (1997).

11

See G.A., id.; Mira R. Adams, 48 ECAB 504 (1997).

12

See G.B., Docket No. 18-1478 (issued February 4, 2019); see also Debra S. King, 44 ECAB 203 (1992).

5

employment-related conditions, the employee has the burden of establishing that the expenditure
is incurred for treatment of the effects of an employment-related injury or condition.13
Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”14 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.15
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
OWCP found a conflict in the medical opinion evidence between Drs. Avula, West, and
the DMA as to whether purchase of a motorized wheelchair should be authorized. It referred
appellant to Dr. Zehner for a referee evaluation to resolve the conflict, pursuant to 5 U.S.C.
§ 8123(a). The Board has held that if there is a disagreement between OWCP’s physician and
appellant’s physician, OWCP will appoint a third physician who shall make an examination.16 For
a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.17
OWCP’s second opinion physician, Dr. West, agreed with appellant’s treating physician,
Dr. Avula, that appellant would medically benefit from authorization of a motorized wheelchair.
The DMA disagreed, but provided insufficient rationale. Therefore his was not of equal weight.
As no true conflict existed in the medical evidence at the time of the referral to Dr. Zehner, the
Board finds that his report may not be afforded the special weight of an impartial medical specialist
and should instead be considered for its own intrinsic value.18
After OWCP solicited the report from Dr. Zehner, the medical opinion evidence reached
equipoise. As a conflict now exists in the medical opinion evidence regarding authorization of a
motorized wheelchair, OWCP shall refer appellant for a new impartial medical evaluation. After
any further development deemed necessary, it shall issue a de novo decision.

13

See L.S., Docket No. 18-1746 (issued April 9, 2019); Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

14

5 U.S.C. § 8123(a).

15

V.K., Docket No. 18-1005 (issued February 1, 2019).

16

5 U.S.C. § 8123(a); see V.G., Docket No. 17-1341 (issued July 16, 2018).

17

See M.R., Docket No. 17-0634 (issued July 24, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

18

See F.R., Docket No. 17-1711 (issued September 6, 2018).

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 31 and August 9, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and this case is remanded for further
proceedings consistent with this decision of the Board.
Issued: July 17, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
U. S. POSTAL SERVICE, POST OFFICE,
South Hero, VT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-734
Issued: August 28, 2012

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant, through her attorney, filed a timely appeal from a
December 22, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of the April 1, 1996 loss of wage-earning capacity (LWEC) determination
and rescinding the acceptance of appellant’s claim for recurrence of disability. 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 the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to rescind acceptance of
appellant’s claim for recurrence of disability as of November 24, 2009; and (2) whether appellant
met her burden of proof to establish modification of OWCP’s April 1, 1996 LWEC
determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 1994 appellant, then a 45-year-old part-time flexible (PTF) clerk, filed a
claim for traumatic injury, claiming right shoulder, arm and hand strain as a result of her federal
employment. She explained that she slipped on a patch of ice and fell while walking to work.
OWCP accepted the claim for right shoulder strain and appellant underwent authorized right
shoulder arthroscopic surgeries for labral repair on October 5, 1994 and for debridement with
acromioplasty on June 30, 1995.
On November 30, 1995 appellant was offered a rehabilitation position as a modified PTF
clerk. Her duties included sorting box mail, computer input, recordkeeping such as volume
reports and claims and express mail delivery, as needed. Pursuant to appellant’s medical
restrictions, the job offer provided that she was not to reach above her shoulder level, was to sort
with equal frequency with either hand and lift no more than 20 pounds. She accepted the
position on December 5, 1995.
In an April 1, 1996 decision, OWCP found that the modified clerk position was suitable
and fairly and reasonably represented the claimant’s wage-earning capacity.
On November 24, 2009 appellant filed a notice of recurrence claiming wage loss due to
work stoppage on that date. The record establishes that her work stoppage was due to the
withdrawal of her limited-duty rehabilitation assignment under the National Reassessment
Program (NRP).
In a January 27, 2010 report, appellant’s treating physician, Dr. Claude E. Nichols, III,
confirmed that appellant’s right shoulder continued to have limited range of motion and that her
status was unchanged and permanent.
OWCP initially accepted appellant’s recurrence claim on February 4, 2010. However, on
February 8, 2010 appellant was notified that the acceptance decision had been issued in error
because there was a formal wage-earning capacity determination in place.
OWCP issued a letter on February 8, 2010 advising appellant of the grounds for
modification of the April 1, 1996 LWEC determination. Appellant was given 30 days to submit
the required information. In response, in a March 12, 2010 letter, appellant’s attorney argued
that the position was makeshift as it was created specifically for her, thus the original LWEC
decision was issued in error.
As of February 16, 2010, appellant filed a series of CA-7 forms, claiming wage-loss
compensation.
By decision dated June 15, 2010, OWCP formally rescinded the February 4, 2010
acceptance letter and denied the claim for recurrence, effective November 24, 2009, because the
evidence did not establish that the criteria had been met to support modification of the previous
wage-earning capacity determination.
Appellant disagreed with this decision and requested a telephonic hearing. The hearing
was held on October 5, 2010. Appellant’s attorney argued that because the makeshift nature of
2

appellant’s work, the original LWEC decision was erroneous on its face. He asserted that if
inquiries were completed, it would be shown that appellant was working a nonbid position and
that the position was temporary and was done specifically to accommodate the claimant’s
disabilities. During appellant’s own testimony, she confirmed that the modified clerk position
was not a bid position and was within the medical restrictions she supplied. Appellant also
acknowledged that the modified clerk position had different duties from a regular clerk. In
addition, appellant also noted that the removal of her position was not in accordance with
seniority pursuant to the collective bargaining agreement.
In a December 22, 2010 decision, the hearing representative affirmed the June 15, 2010
OWCP decision, rescinding the acceptance of appellant’s recurrence of disability and denying
modification of the established wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.2 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and where supported by the evidence, set aside or modify a prior decision and
issue a new decision.3 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.4
Once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, it later decides that it
erroneously accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is
required to provide a clear explanation of the rationale for rescission.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly rescinded acceptance of appellant’s recurrence of
disability, effective November 24, 2009.
When a formal LWEC determination is in place, the proper standard of review is not
whether appellant sustained a recurrence of disability, but whether OWCP should modify its
wage-earning capacity decision according to the customary criteria for modifying a formal
LWEC determination.6 As OWCP properly explained the rationale for the rescission of the
acceptance of appellant’s recurrence claim, the Board finds that it met its burden of proof to
rescind.
2

5 U.S.C. § 8128.

3

John W. Graves, 52 ECAB 160 (2000).

4

Id.

5

John W. Graves, supra note 3.

6

D.S., 58 ECAB 392 (2007).

3

LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS -- ISSUE 2
In the present case, OWCP issued an April 1, 1996 wage-earning capacity decision based
on the rehabilitation job offer appellant had been performing since approximately
December 5, 1995. Appellant has argued that the wage-earning capacity determination should
be modified as the position was withdrawn on November 24, 2009, pursuant to NRP, and the
position was in fact a makeshift position.
With respect to the withdrawal of the position on November 24, 2009, OWCP’s FECA
Bulletin No. 09-05 sets forth the guidelines by which a claim for compensation should be
evaluated if an employee’s position is withdrawn pursuant to the NRP.9 The Board finds that
this case is not in posture for decision as OWCP did not make findings pursuant to FECA
Bulletin No. 09-05 in this case.
If a formal LWEC decision has been issued, the claims examiner must develop the
evidence to determine whether a modification of that LWEC is appropriate. All postal service
cases where CA-7’s are received that involve LWEC ratings based on actual positions should be
reviewed to confirm that the file contains evidence that the LWEC rating was based on an actual
bona fide position. This evidence may include a job offer, an SF-50, a classified position, a
formal position description or other documentary evidence of file. The present record does
contain a copy of a November 30, 1995 rehabilitation job offer. Appellant argues that this was
not a permanent position because it was a rehabilitation position and was a nonbid position.
FECA Bulletin No. 09-05 advises that in an effort to proactively manage these types of cases,
OWCP may also undertake further nonmedical development. OWCP may request the postal
service to address in writing whether the position on which the LWEC rating was based was a
bona fide position at the time of the LWEC rating. OWCP shall thereafter make new findings as
to whether appellant’s rehabilitation position was a makeshift position.
Pursuant to FECA Bulletin No. 09-05, OWCP should also review the file to determine
whether there is a current medical report regarding employment-related residuals. If there is no
current medical evidence then OWCP should request appellant to submit a narrative medical
report as to the nature and extent of employment-related residuals. The employing establishment
should also be requested to submit relevant medical evidence in its possession. Such requests are
7

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

9

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

“essential where employees may not have been requested to provide recent medical evidence
because they have a zero LWEC rating….”10
The case will be remanded to OWCP to properly analyze the modification issue
presented in accord with FECA Bulletin No. 09-05. After such further development as OWCP
deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board concludes that OWCP met its burden of proof to rescind appellant’s
November 24, 2009 notice of recurrence of disability. The Board also finds that the case is not
in posture for decision regarding modification of the wage-earning capacity determination and
will be remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated December 22, 2010 is affirmed in part and set aside in part.
Issued: August 28, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

Id.

5