United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-65
Issued: July 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 9, 2008 appellant filed a timely appeal from a September 16, 2008 decision
of the Office of Workers’ Compensation Programs denying waiver of the recovery of an
overpayment of compensation and regarding the rate of recovery. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly denied waiver of recovery of the
overpayment created during the period May 31, 2004 through June 7, 2008 based on the use of
an incorrect pay rate for compensation purposes; and (2) whether it properly found the
overpayment should be recovered by deducting $150.00 from continuing compensation.
FACTUAL HISTORY
On March 16, 2004 appellant, then a 58-year-old consumer safety inspector, sustained
injury claim alleging that he injured his lower back and neck when his car slid off a road and

down an embankment due to icy conditions. The Office accepted the claim for aggravation of
cervical and lumbar degenerative joint disease. On the back of the form, the employing
establishment noted appellant’s yearly salary as $51,714.00. Appellant did not return to work
following his injury.
The Office paid appellant compensation for wage loss based on a weekly pay rate of
$1,109.88 for the period May 31, 2004 to November 26, 2005.
By letter dated November 8, 2005, the Office placed appellant on the periodic rolls for
temporary total disability. It noted that appellant’s compensation was based on a weekly pay rate
of $1,098.88.
On May 22, 2008 the Office requested clarification on the issue of appellant’s pay rate
from the employing establishment. In a May 27, 2008 response, the employing establishment
stated that appellant was a Grade 9, step 9 at the time of his injury with a yearly salary of
$51,714.00. A 2004 salary table for the Pittsburgh, PA area listed a yearly salary of $51,714.00
for a Grade 9, step 9.
In a letter dated July 10, 2008, the Office issued a preliminary determination that an
overpayment of $18,651.25 was created. It explained that appellant had received $179,074.86 in
compensation from May 31, 2004 through June 7, 2008, but he should have received
$160,423.41 using the correct pay rate. Appellant was found not at fault in creating the
overpayment and advised of the actions he could take to request a prerecoupment hearing within
30 days. The Office enclosed an overpayment recovery questionnaire (OWCP-20) and indicated
that a completed form should be submitted with any request for action.
On July 17, 2008 appellant requested a telephone conference with the Office and
submitted a completed overpayment recovery questionnaire.
He reported income of
1
approximately $4,723.00 per month and expenses of $4,571.00, a cabin worth approximately
$35,000.00 and other funds totaling $1,620.00.2 The list of expenses included $4,150.00 for rent
or mortgage, $400.00 for food, $75.00 for clothing, $550.00 for utilities, credit card payments
totaling $396.003 and $1,200.00 for other expenses.

1

This included $2,816.00 in monthly income, $367.00 in monthly social security benefits and $1,540.00 monthly
income from his spouse’s salary.
2

The other funds included $120.00 in cash on hand and a $1,500.00 checking account balance.

3

Appellant noted a monthly payment of $96.00 to PNC Bank and $300.00 to American Express. The amount
owed to PNC back was $3,168.14 and $8,964.00 to American Express.

2

In a memorandum of telephone prerecoupment conference dated August 12, 2008, the
Office noted that appellant’s income would be reduced from $3,724.80 every 28 days to
$2,813.80 every 28 days or $3,048.28 based on a July 15, 2008 loss of wage-earning capacity
decision.4 The issues discussed were waiver and appellant’s financial resources to repay the
overpayment. Appellant did not contest the fact or amount of the overpayment. The Office
stated that his income included $3,048.28 in monthly compensation benefits, $367.00 in monthly
social security income and his wife’s monthly salary of $1,540.00. Appellant reported monthly
expenses of $1,950.00 for first and second mortgages, $302.00 for car payment; $550.00 for
electricity, gas and phone, $1,200.00 for car expenses of gas, insurance and maintenance,
$100.00 for cell phone, $150.00 for cable and internet, $400.00 for groceries, $75.00 for clothes,
$96.00 for credit card payment to WaMu and $300.00 credit card payment to American Express,
or total expenses of $5,123.00. Next assets included a cabin left by appellant’s father with an
estimated value of $35,000.00, a car worth a $1,000.00 and $1,500.00 in his checking account.
Appellant was requested to submit attended supporting financial documentation. Based on the
information given in the telephone conference, his monthly expenses exceeded his monthly
income by $167.72.
On August 21, 2005 appellant submitted financial documentation which included a one
page copy of a June 2008 PNC Bank checking statement,5 a July 2008 Allegheny power bill
listing $110.72 as the amount due, a payment voucher from American Express listing $153.00 as
the minimum payment,6 payment voucher for $365.00 from National City,7 a payment voucher
from WaMu listing $93.00 as due by July 8, 20088 and NexTier Bank statement for the period
May 20 to June 16, 2008 for appellant’s wife.9
In a decision dated September 16, 2008, the Office finalized its determination that
appellant received an overpayment in the amount of $18,651.25 as a result of being paid at an
incorrect pay rate from May 31, 2004 through June 7, 2008 for which he was without fault. It
noted appellant did not disagree with the fact or amount of the overpayment during the
August 12, 2008 telephone conference. The Office denied waiver of the recovery and
determined that the overpayment would be recovered by deducting $150.00 every four weeks
from his continuing compensation payments. In denying waiver, it found that appellant’s total
monthly income was $4,955.28. As to expenses, the Office found that appellant did not submit
4

.The Board notes that appellant did not request review of this decision by the Board, but did request an oral
hearing before an Office hearing representative. At the time of his appeal to the Board, no final decision had been
issued by an Office hearing representative.
5

Appellant’s loan payments for this first and second mortgage were listed as totaling $1,654.32.

6

The closing date was listed July 28, 2008 with an outstanding balance of $7,673.50. Handwriting indicates
appellant paid $500.00.
7

The form noted a balance of $14,743.52 with the due date crossed out.

8

The form noted $3,076.19 as the balance due as of June 11, 2008.

9

Appellant identified two payments of $50.00 each as payments for gas, $39.86 for electricity, $300.47 for car
payment, $169.53 for insurance, payments of $47.46 and $50.50 for gas and a $283.66 as payment for phone,
internet and cable.

3

sufficient financial information to support the total of claimed monthly expenses. Appellant
alleged monthly car expenses of $1,200.00, but failed to submit sufficient financial information
to support this amount. The Office found that it was reasonable to assume that he had monthly
car expenses of $800.00. It determined that appellant’s monthly expenses equaled $4,723.00,
which was less than his monthly income by $232.28. The Office directed recovery of the
overpayment by withholding the sum of $150.00 from his continuing compensation payments.10
LEGAL PRECEDENT -- ISSUE 1
Section 8129(b) of the Federal Employees’ Compensation Act provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.”11 If a claimant is without fault in the
creation of an overpayment, the Office may only recover the overpayment if recovery would
neither defeat the purpose of the Act nor be against equity and good conscience. The guidelines
for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in sections 10.434 through 10.437 of
the Office’s regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of the
Act if recovery would cause hardship because the beneficiary needs substantially all of his or her
current income (including compensation benefits) to meet current, ordinary and necessary living
expenses, and, also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.12 For waiver under the defeat
the purpose of the Act standard, an appellant must meet the two-pronged test and show that she
both needs substantially all of her current income to meet current ordinary and necessary living
expenses,13 and that her assets do not exceed the resource base.14
The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose. If the Office determines that the amounts of certain expenses are not
ordinary and necessary, particularly regarding the significant expenses of food, clothing and
10

The Board notes that that appellant has submitted new evidence with his appeal. However, the Board may not
consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
11

5 U.S.C. § 8129(b).

12

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004)
13

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
14

W.F., 57 ECAB 705 (2006).

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vehicles, it must state in writing the reasons for this finding. The finding must be supported by
rationale, which may include reference to recognized research data that would show that the
claimant’s expenses exceed the average or range of expenses for the general population relevant
to the claimant’s circumstances.15 The Office must be careful to avoid counting an expense
twice when totaling the claimant’s ordinary and necessary living expenses.16
In order to establish that recovery of an overpayment would be against equity and good
conscience, an overpaid individual must either establish that she would experience a severe
financial hardship in attempting to repay the debt17 or overpaid individual could also establish
that in reliance on such payment or on notice that such payments would be made, she gave up a
valuable right or changed her position for the worse.18 If the claimant is not entitled to waiver
under the defeat the purpose of the Act clause against the equity and good conscience clause
must be considered by the Office in the written decision.19
An individual’s liquid assets include but are not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds and certificate of deposits.20 Nonliquid assets include but
are not limited to the fair market value of an owner’s equity in property such as a camper, boat,
second home and furnishings/supplies including more than two vehicles in the immediate
family.21
ANALYSIS -- ISSUE 1
The Office determined that an overpayment was created for which appellant was not at
fault based on the use of an incorrect pay rate in issuing his wage-loss compensation. However,
the fact that appellant was not at fault in the creation of the overpayment does not, of itself,
establish a basis for waiver of recovery of the overpayment.22 Recovery is still required unless it
is established that adjustment or recovery of the overpayment would defeat the purpose of the
Act or be against equity and good conscience.23 The financial evidence establishes that appellant
has a monthly income of $4,955.28. The financial evidence also indicates that he has total
15

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(3) (May 2004).
16

Id.

17

20 C.F.R. § 10.437(a).

18

Id. at 10.437(b),

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(b) (May 2004)
20

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (May 2004)
21

Id.

22

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Jorge O. Diaz, 51 ECAB 124 (1999).

23

See W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008); Keith H. Mapes, 56 ECAB 130 (2004).

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monthly expenses of $4,723.00.24 Therefore, his monthly income of $4,955.28 exceeds monthly
expenses of $4,723.00 by $232.28, in excess of the amount specified in the Office’s
procedures.25 Appellant listed a cabin worth approximately $35,000.00. Because his monthly
income exceeds his expenses by more than $50.00, he is not deemed to need substantially all of
his current income to meet current ordinary and necessary living expenses and has sufficient
funds available for debt repayment. Therefore, the Board finds that the Office properly
concluded that recovery of the overpayment would not cause severe financial hardship to
appellant or defeat the purpose of the Act.
LEGAL PRECEDENT-- ISSUE 2
Section 10.441 provides that, if an overpayment of compensation has been made to an
individual entitled to further payments and no refund is made, the Office shall decrease later
payments of compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other relevant factors, so
as to minimize hardship.26
ANALYSIS -- ISSUE 3
With respect to the $150.00 withheld from appellant’s continuing compensation
payments to recover the overpayment, the Office’s regulations list these factors to be considered
in determining repayment.27 The implementing regulations provide that the Office must take
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize any hardship.28
The Office found that recovery of the overpayment would be made by an adjustment
against continuing compensation at the rate of $150.00 per payment.29 The financial evidence of
record reveals that appellant’s monthly income exceeded his expenses by $232.68 and he has a
cabin worth approximately $35,000.00. Based on the evidence, the Office took into
consideration evidence pertaining to appellant’s financial assets so as to minimize any hardship
in recovering the overpayment. The Board finds that the Office properly followed its regulations
24

This included payments supported by the financial information of $1,654.32 for first and second mortgage
payments, $39.86 for electricity, $197.96 for gas, $283.66 for phone, internet and cable, $300.47 car payment,
$169.53 for insurance, $93.00 to WaMu, $153.00 to American Express, $110.72 to Allegheny Power and $365.00 to
National City.
25

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1) (October 2004) (an individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00. In other words, the amount of monthly funds available for debt repayment is the difference between current
income and adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00).
26

20 C.F.R. § 10.441.

27

Id.; see Fred A. Cooper, Jr., 44 ECAB 498 (1994).

28

Id.

29

20 C.F.R. § 10.441(a).

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to determine that the $18,651.25 overpayment could be recovered by deducting $150.00 from
appellant’s continuing compensation payments.30
CONCLUSION
The Board finds that the Office properly denied that waiver of the recovery of the
overpayment of compensation in the amount of $18,651.25 for the period May 31, 2004 through
June 7, 2008, resulting from the use of an incorrect pay rate for compensation purposes. The
Board further finds that the Office also properly directed recovery of the overpayment by
deducting $150.00 every 28 days from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2008 is affirmed.
Issued: July 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

30

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) and 6.200.4.d(1)(b) (May 2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Dallas, TX,
Employer
__________________________________________

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

Docket No. 10-1583
Issued: April 18, 2011

Case Submitted on the Record

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

JURISDICTION
On May 24, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated December 4, 2009 which denied his claim for an
emotional condition. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
emotional condition in the performance of duty.
FACTUAL HISTORY
On January 6, 2009 appellant, then a 43-year-old senior Equal Employment Opportunity
(EEO) specialist, claimed that he developed major depressive disorder due to being
1

5 U.S.C. §§ 8101-8193.

overwhelmed at work. He noted having a heavy workload and changing workplace demands.
Appellant stopped work on December 5, 2008. James Parker, appellant’s director, noted that
appellant’s workload was commensurate with the other specialists and he never reprimanded him
for poor performance. He noted that appellant met his core requirements but needed to improve
his writing and math skills. Mr. Parker provided him opportunities to train and improve and
agreed to grant him leave because he had preexisting health problems and personal issues and
had worked 15 months without a vacation.
On January 16, 2009 the Office asked appellant and the employing establishment to
provide additional evidence.
In a January 6, 2009 statement, appellant alleged that beginning in September 2008 he
had a tremendous workload and felt overwhelmed. He asserted that he was involved in
reestablishing his program area before the new fiscal year and had several analysis reports due,
training sessions to complete, meetings and briefings and was tasked with instituting a new
report of analysis. Appellant indicated that he also had several ad hoc requests that needed
attention and was assigned an intern, who needed daily guidance, for 12 weeks. He often
worked 3 hours extra on weeknights and 10- to 14-hour days on weekends. Appellant received
assistance but it was insufficient and he fell behind on the due dates. He advised that he had a
couple of talks with his supervisor about his work performance and was told he was not doing
well and reported being reprimanded for performance. Appellant felt as though everything he
submitted was incorrect and that he was not meeting the “goal of desired perfection.” He alleged
that on November 18, 2008 he had a meeting with his supervisor about his performance and his
symptoms and decided to take some time off. When appellant returned to work on December 2,
2008, the volume of work had not decreased and he did not get any better.
In a January 22, 2009 statement, Mr. Parker noted that appellant began working on
August 20, 2007 and spent time with each program manager and the business liaison to learn
more about his program area. Appellant received orientation and training before assuming the
program areas and spent a week with the former program manager in April 2008 learning about
the program. Mr. Parker specified actions for which appellant was responsible in 2008 and
advised that these responsibilities were similar to those of all program managers. He stated that
he expected each person to plan and manage his workload with little or no supervision.
Mr. Parker indicated that each program manager used a schedule of deliverables to plan and
manage workloads and each person was responsible for letting him know if he could not timely
complete an action. He used the applicable performance plan and aspects of each critical job
element to give feedback and to evaluate the performance of employees. Mr. Parker advised that
there was a decrease in appellant’s performance in completing the formal complaint analysis,
communicating results of statistics and data collection; but, he continued to perform at the fully
successful level. He spoke with appellant about how he could improve and assigned a specialist
from his staff and two specialists from the business liaison office to assist appellant. Mr. Parker
indicated that at no time did he reprimand appellant for his performance and never
communicated a goal of “desired perfection.” As appellant’s first level manager he assigned and
evaluated his work and performance and routinely met with program managers to talk about their
deliverables and projects. Mr. Parker noted meeting with appellant during the fourth quarter of
2008 to discuss the progress on the formal complaint analysis but noted that he was doing well in
the other program areas. He assigned three EEO specialists to assist appellant; however, he still

2

had difficulty completing the analysis. Mr. Parker indicated that on November 18, 2009 he met
with appellant and he informed him that his wife wanted him to see a doctor. He believed
appellant’s issue was due to a preexisting condition that appellant developed while in the Marine
Corps. Mr. Parker indicated that he was not informed that appellant was depressed or
overwhelmed from work.
On January 22, 2009 Mr. Parker approved appellant’s request for leave from
December 15, 2008 to March 13, 2009. In appellant’s leave applications, Mr. Parker noted that
appellant sought leave for a personal serious health condition.
Appellant submitted emergency room records medical reports from Trinity West Urgent
Care, including a December 8, 2008 report from Dr. Raymond Sommer, Board-certified in
emergency medicine, who diagnosed depression. The records noted that appellant reported
being overwhelmed at work and having a depressive episode two to three years earlier. In a
December 12, 2008 form report, Dr. Moolamalla Praveen, a Board-certified psychiatrist, noted
that appellant was incapacitated and hospitalized from December 8 to 12, 2008, as he was not
functioning at work or socially.
In a February 10, 2009 statement, appellant indicated that he had memory loss due to his
illness which occurred over a period of time and was unable to provide any further details about
aspects of his workload.
Appellant submitted Texas workers’ compensation work status reports dated January 15
to February 5, 2009, prepared by Dr. Chau Ngoc Tran, a Board-certified psychiatrist, who treated
appellant for major depression due to increased stress at work and advised that appellant was
totally disabled for that period. On January 27, 2009 appellant was treated by Betty Anne
Derryberry, a counselor, for major depression that began after working 12- to 16-hour days at
work. A January 29, 2009 report from Dr. Cathal P. Grant, a Board-certified psychiatrist,
diagnosed major depression and noted that appellant listed work stressors and a heavy workload.
In a decision dated December 4, 2009, the Office denied appellant’s claim finding that
the claimed emotional condition did not occur in the performance of duty.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
2

George H. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

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explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Act. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under the Act.4 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8 On the other hand the disability is not covered where
it results from such factors as an employee’s fear of a reduction-in-force or his frustration from
not being permitted to work in a particular environment or to hold a particular position.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
When disability results from an emotional reaction to regular or specially assigned work
duties or a requirement imposed by the employment, the disability is deemed compensable.12
Appellant alleged that his claimed condition arose, in part, because he was overwhelmed by
4

See Robert W. Johns, 51 ECAB 137 (1999).

5

Lillian Cutler, supra note 3.

6

J.F., 59 ECAB 331 (2008).

7

M.D., 59 ECAB 211 (2007).

8

Roger Williams, 52 ECAB 468 (2001).

9

See Lillian Cutler, supra note 3.

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11

Id.

12

Penelope C. Owens, 54 ECAB 684 (2003); see Lillian Cutler, supra note 3.

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performing his work assignments beginning in September 2008. He was involved in
reestablishing his program area before the new fiscal year and had several analysis reports due,
training sessions to complete, meetings and briefings to attend and was tasked with instituting a
new report of analysis. Appellant also had several ad hoc requests that needed attention and was
assigned an intern for 12 weeks who needed daily guidance. He stated that these duties led to his
depression. The Board finds that appellant has established a compensable factor of employment
under Cutler with respect to the work performed to finish his assigned duties before the end of
the 2008 fiscal year and having to provide guidance to an assigned intern for 12 weeks.
Appellant’s supervisor, Mr. Parker, confirmed his duties in 2008 which are consistent with
appellant’s allegations. Appellant was in the performance of his regular or specially assigned
duties while attending to these matters and they are compensable factors under Cutler.13
Appellant further alleged that he was overworked. He stated that he could not complete
his assigned duties in a regular 8-hour day and sporadically worked weeknights and sometimes
worked 10 to 14 hours on weekends.14 Appellant received assistance but that this was
insufficient and he fell behind on the due dates. The Board has held that overwork, when
substantiated by sufficient factual information to corroborate the claimant’s account of events,
may be a compensable factor of employment.15 However, the record does not contain sufficient
evidence to establish that appellant worked more than 40 hours a week or that he was
overburdened at work. Mr. Parker generally disputed appellant’s contention that he had an
overburdened workload. In a January 22, 2009 statement, he noted that in March 2008 appellant
assumed the duties of a program manager and that all program managers’ duties included the
same tasks. Appellant’s responsibilities were not unique and were similar to actions and
deliverables for all similar employees. Mr. Parker expected each person to manage his workload
with little or no supervision. He indicated that appellant had some difficulties in certain work
areas but nevertheless continued to perform at the fully successful level. The Board finds
insufficient evidence to support appellant’s allegation that he was overworked. Thus, this factor
has not been established.
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEwen,16 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing

13

See Lillian Cutler, supra note 3.

14

Id.

15

Bobbie D. Daly, 53 ECAB 691 (2002).

16

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

5

establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.17
Appellant attributed stress, in part, to the work assigned to him by his supervisor. The
Board has found that an employee’s complaints concerning the manner in which a supervisor
performs his duties as a supervisor or the manner in which a supervisor exercises his supervisory
discretion fall, as a rule, outside the scope of coverage provided by the Act. This principle
recognizes that a supervisor or manager in general must be allowed to perform his duties that
employees will at times dislike the actions taken, but that mere disagreement or dislike of a
supervisory or management action will not be actionable, absent evidence of error or abuse.18
The Board notes that the assignment of work is an administrative function19 and the manner in
which a supervisor exercises his or her discretion falls outside the ambit of the Act. Absent
evidence of error or abuse, appellant’s mere disagreement or dislike of a managerial action is not
compensable.20 The Board finds that appellant has not offered sufficient evidence to establish
error or abuse regarding his work assignments. The evidence does not establish that the
employing establishment acted unreasonably. Mr. Parker noted that all program managers were
assigned similar duties and all were expected to manage their workload with little or no
supervision. He attempted to help appellant improve his performance and assigned three staff
members to assist him. Appellant has presented no corroborating evidence to support that the
employing establishment acted unreasonably in assigning work. He has not established
administrative error or abuse in the performance of these actions and therefore they are not
compensable under the Act.
Appellant also asserted that his work was unfairly assessed on November 18, 2008.
Although the handling of performance assessments is generally related to the employment, it is
an administrative function of the employer and not a duty of the employee.21 The evidence is
insufficient to establish that the employing establishment erred or acted abusively in this matter.
Mr. Parker stated that appellant had some difficulty in certain job areas but that he continued to
perform at the fully successful level. He discussed with appellant ways to improve his
performance and assigned three staff members to assist him. Although appellant has made
allegations that the employer erred in this administrative matter, he has not provided evidence to
substantiate any such actions were in error or unreasonable. He has not established a
compensable factor pertaining to his performance assessment.
As appellant established compensable factors of employment under Cutler, the Office
must base its decision on an analysis of the medical evidence. The case will therefore be
17

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

18

See Marguerite J. Toland, 52 ECAB 294 (2001).

19

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

20

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt Jr., 56 ECAB 117 (2004) (allegations
such as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties do not fall within the coverage of the Act).
21

C.S., 58 ECAB 137 (2006).

6

remanded to the Office for this purpose.22 After such further development as deemed necessary,
the Office shall issue an appropriate decision on the merits of this claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: April 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Tina D. Francis, 56 ECAB 180 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CENTER FOR HUMAN RESOURCES,
New York, NY, Employer
__________________________________________

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

Docket No. 07-914
Issued: September 6, 2007

Case Submitted on the Record

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

JURISDICTION
On February 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 20, 2006 with respect to a claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
April 29, 2005.
FACTUAL HISTORY
On August 26, 1999 appellant, then a 53-year-old claims representative, filed an
occupational disease claim alleging that she sustained bilateral arm tendinitis as a result of
repetitive activity during her federal employment. The claim was accepted for bilateral wrist
tendinitis, bilateral carpal tunnel syndrome and bilateral de Quervain’s syndrome. Appellant

underwent right carpal tunnel surgery on June 21, 2002 and left carpal tunnel surgery on
September 17, 2002. She returned to a light-duty position at four hours per day on
November 12, 2002.
In a report dated April 19, 2005, Dr. Sana Bloch, a neurologist, diagnosed chronic pain
syndrome and right reflex sympathetic dystrophy (RSD). She opined that appellant was totally
disabled. On April 29, 2005 appellant filed a notice of recurrence of disability (Form CA-2a)
commencing on that date.
By decision dated August 2, 2005, the Office denied the claim for a recurrence of
disability commencing April 29, 2005. Appellant requested reconsideration and submitted an
August 12, 2005 report from Dr. Bloch, who opined that the source of appellant’s pain syndrome
was the carpal tunnel syndrome. Dr. Bloch stated that the carpal tunnel had progressed to a RSD
involving the arms and opined that appellant was totally disabled. In a report dated August 15,
2005, Dr. Roy Kulick, an orthopedic surgeon, opined that appellant was totally disabled due to
carpal tunnel syndrome.
The Office referred the case to an Office medical adviser. In a report dated September 7,
2005, the medical adviser opined that there was no evidence to establish an RSD due to carpal
tunnel syndrome. He opined that appellant’s complaints were due to degenerative arthritis and
her disability as of April 2005 was not employment related.
The Office initially referred appellant for a second opinion examination by Dr. Richard
DuShuttle, an orthopedic surgeon, who submitted reports dated March 8 and April 26, 2006. In
the latter report, Dr. DuShuttle opined that the RSD was not related to the carpal tunnel surgery
and that he did not believe that appellant was totally disabled as of April 20, 2005. An Office
medical adviser reviewed the evidence and opined in a May 10, 2006 report that Dr. DuShuttle’s
examination was inadequate as he did not provide appropriate results on examination in his
reports.
The Office referred appellant to Dr. Robert Smith, an orthopedic surgeon, for a second
opinion examination. In a report dated June 20, 2006, Dr. Smith provided a history and results
on examination. He reported no clinical evidence of RSD or ongoing carpal tunnel syndrome
and stated that it appeared that residuals of the accepted conditions had resolved. Dr. Smith
noted that an electromyogram (EMG) in June 2003 showed no evidence of any ongoing nerve
abnormalities in the arms. He opined that any claim for total disability since April 29, 2005
would not be related to carpal tunnel syndrome. Dr. Smith completed a work restriction
evaluation and indicated that appellant could work without restriction.
The Office found that a conflict in the medical opinion evidence existed. The questions
posed for the referee examiner included an opinion as to whether any other diagnoses,
specifically RSD and chronic pain syndrome, were employment related and an opinion as to
whether appellant was totally disabled as of April 29, 2005 due to the effects of the work
injuries.
The neurologist selected as the referee examiner, Dr. Lee Dresser, provided a report dated
August 23, 2006. Dr. Dresser provided a history and results on examination. He diagnosed

2

bilateral carpal tunnel syndrome with subsequent normalization of nerve conduction studies,
osteoarthritis with a history of tendinitis and chronic right greater than left arm pain without
significant evidence of RSD changes. Dr. Dresser stated:
“It is quite likely that [appellant’s] carpal tunnel syndrome was the result of her
frequent repetitive typing. The tenosynovitis and osteoarthritis likely also were
contributed to by her repetitive workplace activity. I find [appellant] to be unable
to return full time to work. She is partially disabled because of the abovedescribed symptoms. [Appellant] should be able to return part time to work,
performing activities that do not require repetitive, continuous motions.”
By decision dated November 20, 2006, the Office denied modification of the August 2,
2005 decision. The Office found that the weight of the evidence was represented by Dr. Dresser.
LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”1
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.2
When the Office refers appellant to a referee examiner for the purpose of resolving a
conflict in the medical evidence pursuant to 5 U.S.C. § 8123(a), the Office has a responsibility to
secure a medical report that properly resolves the conflict.3 When the opinion from the referee

1

20 C.F.R. § 10.5(x).

2

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
3

See Thomas Graves, 38 ECAB 409 (1987).

3

examiner requires clarification or elaboration, the Office must further develop the medical
evidence until the conflict is properly resolved.4
ANALYSIS
The Office found that a conflict existed under 5 U.S.C. § 8123(a) with respect to
disability as of April 29, 2005.5 Attending physicians Drs. Bloch and Kulick supported an
employment-related total disability, while second opinion examiner Dr. Smith and an Office
medical adviser opined that appellant was not totally disabled as of April 29, 2005.
In referring the case to a referee examiner, the Office properly requested the physician
provide an opinion as to whether there was total disability as of April 29, 2005 causally related to
an employment injury. Since Dr. Bloch had provided a diagnosis that included nonaccepted
conditions, such as RSD, the referee examiner was also asked to discuss whether there were any
other employment-related conditions other than the accepted conditions.
The referee examiner, Dr. Dresser, failed to address the relevant issues or provide a
reasoned medical opinion. With respect to the diagnoses, Dr. Dresser briefly stated that there
was no “significant evidence” of RSD changes without providing further explanation. He also
appeared to find the diagnosis of osteoarthritis was employment related, although again he did
not provide additional explanation. With respect to the primary issue of whether appellant was
totally disabled as of April 29, 2005 due to an employment-related condition, Dr. Dresser
provided no opinion at all. He does not discuss appellant’s light-duty job or provide a reasoned
medical opinion as to whether appellant was totally disabled on or after April 29, 2005 as a result
of an employment-related injury.
The case therefore will be remanded to the Office for further development to properly
resolve the conflict in the medical evidence.6 After such further development as the Office
deems necessary, it should issue an appropriate decision.
CONCLUSION
The referee examiner did not resolve the conflict in the medical evidence and the case
will be remanded for proper resolution of the conflict.

4

Id.

5

Under 5 U.S.C. § 8123(a), if there is a disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).
6

As noted in Thomas Graves, supra note 3, the referee examiner should be asked to provide a supplemental
report. If a supplemental report is not forthcoming, or if the physician is unable to provide a rationalized medical
opinion, the Office should refer appellant to a second referee examiner.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, IL, Employer
__________________________________________

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

Docket No. 14-32
Issued: May 21, 2014

Case Submitted on the Record

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

JURISDICTION
On October 15, 2013 appellant filed a timely appeal from an April 19, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration.
The most recent merit decision of record is dated November 23, 2011. There is no merit
decision within 180 days of October 4, 2013, the date appellant filed her appeal with the Board.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
under 5 U.S.C. § 8128(a).
On appeal, appellant contends that the medical record establishes that the offered lightduty position exceeded her medical restrictions and functional limitations. She contends that

1

5 U.S.C. § 8101 et seq.

Dr. Nashed’s September 10, 2010 report returning her to light duty terminated on
October 5, 2010.
FACTUAL HISTORY
OWCP accepted that on or before April 1, 2009 appellant, then a 49-year-old office
automation secretary, sustained an ulnar nerve lesion and reflex sympathetic dystrophy of the
right upper extremity due to keyboarding and other repetitive motion at work. She stopped work
on January 12, 2010. Other than a brief trial of work in September 2010, appellant did not return
to work. She received compensation on the daily rolls through April 28, 2010 and on the
periodic rolls commencing April 29, 2010.
Dr. Rafat S. Nashed, an attending Board-certified orthopedic surgeon, performed an
anterior transposition of the ulnar nerve at the right elbow on January 12, 2010. He held
appellant off work through June 4, 2010 and described physical therapy.2
In a June 25, 2010 duty status report (Form CA-17), Dr. Nashed found appellant able to
perform light-duty work, with no fine manipulation, reaching above the shoulder, driving a
vehicle, operating machinery, pulling/pushing, kneeling, walking or climbing.3 On July 1, 2010
the employing establishment offered appellant a full-time light-duty job within these restrictions.
Dr. Nashed then submitted a July 9, 2010 report holding appellant off work.
On August 17, 2010 OWCP obtained a second opinion from Dr. Robert Sciortino, a
Board-certified orthopedic surgeon, who reviewed the medical record and a statement of
accepted facts. On examination, Dr. Sciortino found weakness and stiffness throughout the right
arm. He advised that appellant could perform limited duty without any use of the right upper
extremity.
In a September 10 and 14, 2010 reports, Dr. Nashed released appellant to light duty as of
September 20, 2010, with no use of the right arm and no use of a headset. He prescribed use of
“speaker [tele]phone only to answer [tele]phones.” In an October 1, 2010 report, Dr. Nashed
related appellant’s account of reporting to work at the employing establishment the previous
week, but that there was no work available within her restrictions.4
As the medical evidence demonstrated that appellant could perform light-duty work,
OWCP referred her for vocational rehabilitation services on December 9, 2010, with the goal of
reemployment at the employing establishment.

2

In a June 23, 2010 report, Dr. S. Vic Glogovac, an attending Board-certified orthopedic surgeon, noted that
stellate ganglion blocks reduced the hypersensitivity in appellant’s right hand. He noted a positive flexed elbow test
on the left, with decreased sensation in the ulnar dorsum.
3

On June 25, 2010 appellant filed a notice of recurrence of disability, asserting that she was still disabled for
work. OWCP interpreted the form as a statement of continuing disability rather than a new claim for compensation
4

A December 8, 2010 functional capacity evaluation demonstrated that appellant could perform sedentary work.

2

On January 25, 2011 the employing establishment offered appellant a full-time,
permanent modified job offer as an office automation secretary. The duties included: answering
telephone calls, greeting visitors, maintaining a meeting calendar, scheduling meetings and
delivering mail within a medical clinic. The employing establishment would provide assistive
technology such as speech recognition software and ergonomic accommodations to conform to
her restrictions. The position was available beginning March 7, 2011.
In a February 2, 2011 letter, appellant rejected the offered position as it was “demeaning”
and exceeded her limitations. She enclosed portions of an application for disability benefits
under the Social Security Act.
By letter dated February 16, 2011, OWCP advised appellant that the offered position was
found suitable work within the limitations provided by Dr. Nashed. It notified her of the penalty
provision under section 8106(c) of FECA for refusing suitable work. OWCP afforded appellant
30 days to either accept the offered position or provide valid reasons for her refusal.
In a March 9, 2011 letter, OWCP advised appellant that it had received notice of her
refusal of the job offer. It considered her reasons for refusal and found them unacceptable.
OWCP afforded her 15 days in which to accept the position or appellant’s wage-loss
compensation benefits would be terminated. It noted that no further reasons for refusal would be
considered. In a March 16, 2011 letter, appellant requested an extension to respond. On
March 31, 2011 the employing establishment confirmed that the position remained open and
available.
By decision dated March 31, 2011, OWCP terminated appellant’s monetary
compensation benefits effective that day under 5 U.S.C. § 8106(c) on the grounds that she
refused an offer of suitable work. It found that the modified position offered to her on
January 25, 2011 conformed to Dr. Nashed’s restrictions.
In an April 26, 2011 letter, appellant requested a telephonic oral hearing, held
September 29, 2011. At the hearing, she asserted that, during a trial of work in September 2010,
she merely sat and did not complete work tasks because no accommodations were provided.
Appellant contended that the January 25, 2011 job offer was for a full-duty position that
exceeded her medical restrictions.
Appellant submitted Dr. Nashed’s April 23, 2010 note holding her off work due to reflex
sympathetic dystrophy of the right arm, a December 21, 2010 request for a functional capacity
evaluation and his March 24, 2011 report noting that she was not putting forth full effort in
physical therapy. She also provided February and March 2011 physical therapy notes,
correspondence with her elected representative, letters from her attorney, medical literature about
reflex sympathetic dystrophy syndrome and 2010 timekeeping and financial records.
By decision dated and finalized November 23, 2011, an OWCP hearing representative
affirmed the March 31, 2011 termination. He found that the evidence did not establish that the
January 25, 2011 job offer was not suitable work. The hearing representative further found that
appellant’s arguments regarding the September 2010 trial of work were irrelevant to the job offer
made on January 25, 2011.

3

In a November 17, 2012 letter, appellant requested reconsideration. She asserted that the
lack of accommodations during a September 2010 trial of work created confusion and angered
senior managers. Appellant contended that the lack of accommodations also demonstrated that
the January 25, 2011 light-duty job offer was actually for a full-duty position exceeding her
restrictions. She submitted Social Security and Office of Personnel Management (OPM) forms
and February and March 2011 physical therapy notes. In a March 7, 2011 report, Dr. Elbert H.
Cason, a Board-certified surgeon, noted weakness and swelling in the right hand. Appellant also
resubmitted copies of documents previously of record.5
By decision dated April 19, 2013, OWCP denied reconsideration on the grounds that the
evidence submitted was either irrelevant to the suitable work issue or duplicative of evidence
previously of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) submit
relevant and pertinent new evidence not previously considered by OWCP.7 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.8
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.10 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.11

5

Appellant also submitted correspondence and OWCP letters from April 2012 to January 2013 regarding medical
billing and coding matters. These documents are unrelated to appellant’s request for reconsideration.
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

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

9

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

10

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

11

Annette Louise, 54 ECAB 783 (2003).

4

ANALYSIS
OWCP terminated appellant’s wage-loss compensation benefits effective March 31, 2011
on the grounds that she refused a January 25, 2011 offer of suitable work conforming to
restrictions provided by Dr. Nashed, an attending Board-certified orthopedic surgeon. Appellant
requested a hearing, at which she contended that the job offer was not made in good faith as she
was not accommodated during a September 2010 trial of work. OWCP affirmed the termination
by decision issued November 23, 2011, finding that the additional evidence and argument did not
establish that the January 25, 2011 job offer was not suitable work.
Appellant requested reconsideration on November 17, 2012.
OWCP denied
reconsideration by decision issued April 19, 2013 on the grounds that the evidence submitted
was cumulative or irrelevant. The Board finds that OWCP properly denied her request for
reconsideration.
In support of her request for reconsideration, appellant submitted a November 17, 2012
statement reiterating her argument that the January 25, 2011 was not made in good faith as the
employer did not provide accommodations in September 2010. She also submitted copies of
medical reports and OWCP decisions previously of record and physical therapy notes repeating
prior findings. The Board has held that evidence which is duplicative or cumulative in nature is
insufficient to warrant reopening a claim for merit review.12
Appellant also submitted Social Security and OPM forms. These documents are not
relevant to the underlying issue as decisions of other federal agencies or governmental bodies are
not dispositive to issues raised under FECA.13 Appellant also provided a March 7, 2011 report
from Dr. Cason, a Board-certified surgeon, who noted weakness and swelling in the right hand.
Dr. Cason did not address the January 25, 2011 job offer or her ability to perform the job.
Therefore, his report is irrelevant to the suitable work issue in the claim.14
A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit any new and relevant evidence in this case. The Board accordingly
finds that she did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2). Appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, advance a
relevant legal argument not previously considered by OWCP or submit relevant and pertinent
evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
On appeal, appellant asserts that the medical record establishes that the offered light-duty
position exceeded her medical restrictions and functional limitations. She contends that
Dr. Nashed’s September 10, 2010 report returning her to light duty “terminated on

12

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

13

A.C., Docket No. 12-1579 (issued December 13, 2012); Andrew Fullman, 57 ECAB 574 (2006).

14

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

5

October 5, 2010.” These arguments pertain to the merits of the claim, which are not before the
Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2013 is affirmed.
Issued: May 21, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.I., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Memphis, TN, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0942
Issued: February 4, 2020

Case Submitted on the Record

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

JURISDICTION
On March 28, 2019 appellant, through counsel, filed a timely appeal from an October 1,
2018 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 has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On July 25, 2017 appellant, then a 62-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that she experienced an exacerbation of her mental health
conditions, including post-traumatic stress disorder (PTSD), major depressive disorder, severe
insomnia, and severe anxiety, due to factors of her federal employment. Specifically, she attributed
her emotional conditions to performing double duty as a result of chronic understaffing, as well as
witnessing patients suffering, dying, and receiving inadequate care. Appellant indicated that she
first became aware of her conditions and their relation to her federal employment on
October 17, 2014.
In a September 5, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence and provided a questionnaire for
her completion. OWCP afforded appellant 30 days to respond. In a separate letter of even date,
it requested that the employing establishment address the accuracy of her allegations and claims.
On October 3, 2017 appellant completed OWCP’s development questionnaire and again
attributed her emotional condition to performing double duty due to chronic understaffing and
witnessing inadequate patient care. She noted that she was the “infection control champion” and
that there were serious infection control issues that put patients at significant risk. Appellant also
had concerns about “bowel training” protocol for spinal cord patients. She noted that she was
unable to locate a working pulse oximeter when needed. Appellant also alleged several traumatic
incidents, including being required to call rapid responses for a patient on three occasions and,
after his physician did not respond, the patient ended up in the intensive care unit (ICU) and did
not recover. Thereafter, a second patient died in another unit when the boots needed to prevent
blood clots following surgery were not used and, in a third incident, a patient was treated for a year
in appellant’s unit, discharged, and sought treatment in another hospital where he was diagnosed
with cancer, which was not diagnosed by the employing establishment. Appellant also noted that
she had a previous history of PTSD and depression related to prior traumatic experiences.
In an e-mail dated January 4, 2014, appellant noted that on that date her unit was staffed at
the rate of 5 patients per nurse while another unit had only 2.5 patients per nurse. On February 10,
2014 she alleged difficulties in obtaining help due to understaffing. On February 11, 2014
appellant alleged that there were three nurses and four other staff for 20 patients on her unit. On
February 17, 2014 she alleged that staff numbers were askew. On April 9, 2014 appellant agreed
in writing to working six consecutive days and split days for one schedule to help out.
On June 24, 2016 Dr. Amy Balentine, a licensed clinical psychologist, diagnosed
exacerbation of preexisting chronic PTSD and major depressive disorder. She noted that,
beginning in October 2014, appellant attributed her condition to mistreatment of patients and
chronic understaffing. Dr. Balentine submitted an additional report on September 8, 2017,
indicating that her PTSD was exacerbated by her work conditions.

2

In a letter dated November 7, 2017, the employing establishment responded and disputed
appellant’s allegations and claims. It noted that she had not submitted evidence, which
substantiated that her workload was double in comparison to the workload of other staff members.
The employing establishment also noted that appellant had not provided documentation to support
any of her other allegations. On November 16, 2017 it denied that she was requested to work
double duty. The employing establishment further denied that appellant’s job could be considered
stressful as she received similar assignments to other nurses. It noted that from time to time there
were staffing shortages related to staff illness, but that those shortages were corrected with
overtime and compensatory time.
By decision dated December 7, 2017, OWCP denied appellant’s emotional condition
claim, finding that she had not established a compensable factor of employment. It noted that the
employing establishment had denied her allegation of overwork and that she had not submitted
corroborating evidence regarding patient negligence.
On July 27, 2018 appellant, through counsel, requested reconsideration. She reiterated her
prior allegations regarding chronic understaffing and inadequate care of patients. Appellant
resubmitted Dr. Balentine’s September 8, 2017 report. She also provided an additional narrative
statement dated July 14, 2017, noting that she began working in the spinal cord unit at the
employing establishment in 2009 and that, due to chronic understaffing, she carried double the
allowable patient load under Paralyzed Veterans of America (PVA) regulations. Appellant alleged
that patient-to-nurse ratios were often seven or eight to one. She also worked as head or charge
nurse at least three days a week and was the infection control champion, while continuing her
regular patient load. Appellant described her duties in these positions. She alleged that chronic
understaffing created a safety hazard for patients leading to inadequate, improper, and neglectful
patient care that led to patient injury and/or death. Appellant also noted that there were severe
infection control issues at the employing establishment that put both patients and staff at risk of
harm. She noted that she reported these issues to management and experienced retaliation and
harassment as a result. Appellant alleged that patients were shamed and ridiculed by staff for using
the call button or when their ventilator alarms sounded. She also alleged that a physician came to
work under the influence of alcohol, would not answer his after-hours calls, failed to examine
patients, and berated nurses. This particular physician also locked his office and slept while on
duty. Appellant noted that this particular physician failed to respond to her rapid responses, which
resulted in her patient entering the ICU. She stopped work in October 2014 due to stress and panic
attack as a result of these issues.
In a witness statement, B.T., a coworker in the spinal cord unit, confirmed that the unit was
understaffed and that this put patients and staff at risk. She asserted that nursing staff were
frequently assigned six to eight patients each in violation of PVA regulations. B.T. also asserted
that the physician was drinking while on duty, failed to return pages, and failed to examine patients.
She alleged that this physician’s lack of care resulted in the death of a patient. B.T. also described
a patient that was misdiagnosed and sent home with cancer.
A December 18, 2008 employing establishment directive indicated that the spinal cord unit
required minimal nurse staffing calculated based on 71 full-time employees per 50 staffed beds or
1.42 nurses per patient. This directive provided that, when acuity levels exceed the national
average, nursing staffing needed to be increased according.

3

In an e-mail dated November 11, 2013, B.W., reported that the unit was short-staffed by
scheduling and left with only two nurses. She asserted that most weekends the unit did not have
adequate staffing for the acuity of patients and that the nurses stayed over to finish shift duties and
were not compensated. On November 12, 2013 B.W. requested four nurses on the evening shift.
She noted that she was left with only one other nurse to care for 19 patients. On December 17,
2013 B.W. reported that there were three nurses who were responsible for six or seven patients
each. On January 23, 2014 she reported that she and appellant did not receive a break during their
shift. On April 10, 2014 B.W. reported that there were 21 patients and three nurses. On April 17,
2014 she reported 22 patients with three nurses while on April 16, 2014 there were 22 patients
with four nurses. On May 21, 2014 B.W. reported 21 patients and three nurses. On May 22, 2014
she reported 20 patients and three nurses.
On August 22, 2018 the employing establishment asserted that shortage of staff was
corrected by overtime. It also noted that appellant was terminated from the employing
establishment on July 11, 2017.
By decision dated October 1, 2018, OWCP denied modification of the December 7, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 Those are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical evidence establishing
that he or she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to the emotional condition.7
3

Supra note 2.

4

O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
5

O.G., id.; M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton,
40 ECAB 1143, 1145 (1989).
6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7

O.G., supra note 4; George H. Clark, 56 ECAB 162 (2004).

4

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.8 In the case of Lillian Cutler,9 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition under FECA. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA.10 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury arising
out of and in the course of employment.11 On the other hand, when an injury or illness results
from an employee’s feelings of job insecurity per se, fear of a reduction-in-force, his or her
frustration from not being permitted to work in a particular environment or hold a particular
position, unhappiness with doing work, or frustration in not given the work desired or hold a
particular position, such injury or illness falls outside FECA’s coverage because they are found
not to have arisen out of employment.12
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.13 However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment did, in fact, occur.
Mere perceptions of harassment are not compensable under FECA.14
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.15 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. If a

8

T.L., Docket No. 18-0100 (issued June 20, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
9

28 ECAB 125 (1976).

10

S.K., Docket No. 18-1648 (issued March 4, 2019); A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB
137 (2005).
11

Cutler, supra note 9; O.P., Docket No. 19-0445 (issued July 24, 2019); Trudy A. Scott, 52 ECAB 309 (2001).

12

B.S., Docket No. 19-0378 (issued July 10, 2019); William E. Seare, 47 ECAB 663 (1996).

13

T.L., supra note 8; M.R., Docket No. 18-0304 (issued November 13, 2018); David W. Shirey, 42 ECAB 783, 79596 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).
14

A.E., Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

15

B.S., supra note 12; Dennis J. Balogh, 52 ECAB 232 (2001).

5

compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence which has been submitted.16
OWCP’s regulations provide that an employer who has reason to disagree with an aspect
of the claimant’s allegation should submit a statement that specifically describes the factual
argument with which it disagrees and provide evidence or argument to support that position.17 Its
regulations further provide in certain types of claims, such as a stress claim, a statement from the
employing establishment is imperative to properly develop and adjudicate the claim.18
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.19 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.20 Once OWCP undertakes to
develop the evidence, it has the responsibility to do so in a proper manner.21
ANALYSIS
The Board finds that this case not in posture for decision.
Appellant alleged that she experienced an exacerbation of her preexisting PTSD and
anxiety due to overwork, witnessing failures in patient care, harassment, and retaliation. OWCP
denied her claim, finding that she had not established a compensable employment factor. The
Board must, thus, initially review whether these alleged incidents and conditions of employment
are covered employment factors under the terms of FECA.
Appellant has attributed her emotional condition to performing her regular or specially
assigned duties of her position. She alleged that she was overworked as her unit was chronically
understaffed. The Board has held that overwork, when substantiated by sufficient factual
information to corroborate appellant’s account of events, may be a compensable factor of
employment.22
In support of her claim, appellant submitted a December 18, 2008 employing establishment
directive, which indicated that the minimal nurse staffing was to be 1.42 nurses per patient. On
16

O.G., supra note 4; Norma L. Blank, 43 ECAB 384, 389-90 (1992).

17

20 C.F.R. § 10.117(a); D.L., Docket No. 15-0547 (issued May 2, 2016).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).
19
D.B., Docket No. 19-0443 (issued November 15, 2019); K.S., Docket No. 18-0845 (issued October 26, 2018);
D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB 611 (2006).
20

20 C.F.R. § 10.121.

21

F.V., Docket No. 19-0006 (issued September 19, 2019); Cutler, supra note 9.

22

I.P., Docket No. 17-1178 (issued June 12, 2018); William H. Fortner, 49 ECAB 324 (1998).

6

January 4, 2014 she reported that her unit was staffed at five patients per nurse. In a February 10,
2014 e-mail, appellant reported staff shortages. On February 11, 2014 she reported that there were
three nurses for 20 patients. On February 17, 2014 appellant again reported staffing issues. She
also provided an e-mail dated April 9, 2014 in which she agreed in writing to work six consecutive
days. Appellant submitted a statement from B.T., a coworker, who confirmed that the unit was
understaffed and frequently in violation of staffing regulations. She also submitted a series of
e-mails from B.T. detailing the understaffing on specific dates from November 11, 2013 through
May 22, 2014.
On September 5, 2017 OWCP requested that the employing establishment address the
accuracy of appellant’s allegations and claims. The employing establishment generally confirmed
staffing shortages due to illness, but alleged that these shortages were corrected through overtime
and compensatory time. Its response, however, did not focus on whether she was overworked.
The employing establishment also failed to respond to appellant’s allegations regarding the
maintenance of the appropriate percentage of nurses to patients. The Board finds that the
employing establishment did not fully respond to the September 5, 2017 development letter.
Moreover, OWCP did not request further information from the employing establishment that is
normally in the exclusive control of the employing establishment (e.g., time schedules, nurse-topatient ratios, incident reports). As discussed, OWCP’s procedures provide that, in emotional
condition cases, a statement from the employing establishment is necessary to adequately
adjudicate the claim.23
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not adequately respond to the request for comment made by OWCP in the
September 5, 2017 development letter.24
Although it is appellant’s burden of proof to establish her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.25
This case will accordingly be remanded to OWCP for further development of the evidence.
OWCP shall request that the employing establishment provide a detailed statement and relevant
evidence and/or argument regarding appellant’s allegations. Following this and any necessary
further development, it shall issue a de novo decision regarding whether appellant has established
an emotional condition in the performance of duty.
CONCLUSION
The Board finds that this case is not posture for a decision.

23

Supra note 18; M.T., Docket No. 18-1104 (issued October 9, 2019).

24

V.H., Docket No. 18-0273 (issued July 27, 2018).

25

R.A., Docket No. 17-1030 (issued April 16, 2018); K.W., Docket No 15-1535 (issued September 23, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: February 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1955
Issued: April 25, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated March 24, 2009 which affirmed an August 19, 2008
decision termination of her compensation benefits. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits for her accepted lumbar sprain effective August 30, 2008.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 15, 2007 appellant, then a 38-year-old police officer, filed a traumatic injury
claim for her low back when she closed a gate at work. The Office accepted her claim for a
lumbar sprain. Appellant did not immediately stop work but was terminated by the employing
establishment on January 17, 2008, during her probationary period, for failure to complete her
course of instruction and physical inability to perform her duties. The Office paid wage-loss
compensation on January 26, 2008.
From July 11 to 30, 2007, appellant sought treatment from Dr. Carlos R. Barberis, a
Board-certified internist for low back pain. She reported a two-week history of injury while
closing a gate at work and advised that she continued to have persistent back pain. Dr. Barberis
diagnosed muscle spasms, scoliosis and acute low back pain. Appellant was also treated by
Dr. Martha Strickland, a Board-certified internist, from July 31 to September 6, 2007 for low
back pain radiating into her legs. On August 13, 2007 Dr. Strickland diagnosed exacerbated
lumbar pain from chronic degenerative changes in the low back. A July 31, 2007 x-ray of the
lumbar spine revealed degenerative changes at L5-S1, with no fracture or spondylosis and mild
levoscoliosis. Appellant also sought treatment from Dr. Robert Martin, a Board-certified
internist, from September 6, 2007 to January 7, 2008. Dr. Martin diagnosed sacroiliitis and
recommended aggressive rehabilitation including physical therapy. In a January 7, 2008 duty
status form, he diagnosed sacroiliac joint pain and returned appellant to work light duty with
restrictions for 30 days.
On April 4, 2008 the Office referred appellant to Dr. Steven Lancaster, a Board-certified
orthopedic surgeon, for a second opinion. In a May 8, 2008 report, Dr. Lancaster noted
examining appellant on May 7, 2008 and discussed her work history. He noted findings upon
physical examination of full range of motion of the knees and ankles, normal reflexes and
quadriceps strength, no sensory deficit, no spasm in the lumbar spine and pain in the mid portion
of the back. Dr. Lancaster diagnosed lumbar strain, rule out herniated disc. He advised that
there were no objective clinical findings on physical examination to support appellant’s
subjective complaint of pain. Dr. Lancaster noted x-rays revealed spondylosis and degenerative
conditions. He recommended appellant undergo a magnetic resonance imaging (MRI) scan of
the lumbar spine and a functional capacity evaluation.
On May 8, 2008 the Office referred appellant for a functional capacity evaluation
scheduled for May 28, 2008. On May 27, 2008 appellant contacted the Office by telephone and
requested the evaluation be rescheduled.2 In a June 4, 2008 letter, the Office notified her that the
functional capacity evaluation was rescheduled for June 11, 2008. On June 11, 2008 it was
advised that appellant did not attend the examination.

2

In a May 2, 2008 letter received by the Office on May 8, 2008, appellant informed the Office of her new mailing
address. The May 8, 2008 Office referral letter was sent to her old address.

2

In a supplemental report dated July 10, 2008, Dr. Lancaster advised that an MRI scan of
the lumbar spine performed on July 1, 2008 revealed degenerative disc changes at L4-5 and L5S1; a small central disc herniation at L4-5 without nerve root impingement; and a small broadbased posterior disc herniation at the L5-S1 appearing to cause some very slight impingement on
the intraspinal portions at the S1 nerve roots bilaterally. He noted that these findings were
similar to the previous study of August 31, 2007 obtained after appellant’s June 15, 2007 injury
and which indicated that at that time there were degenerative endplate changes at L4-5 and L5S1 signifying a degenerative condition. Dr. Lancaster reiterated that he found no objective
findings on examination to support any injuries and appellant’s subjective complaints
outweighed her objective findings. He advised that a lumbar strain would have not caused
appellant’s underlying disc herniation at L4-5 or L5-S1 since these were preexisting degenerative
areas. Dr. Lancaster opined that she experienced a temporary aggravation of a preexisting
degenerative condition which would have subsided and her current condition was the result of a
preexisting degenerative condition of her lumbar spine and its natural progression. He opined
that appellant reached maximum medical improvement and could return to work in her regularduty position with lifting up to 50 pounds but advised that she would be restricted from dragging
150 pounds as noted in her job description.
On July 18, 2008 the Office proposed to terminate appellant’s compensation benefits as
the weight of the medical evidence as provided by Dr. Lancaster established that she had no
continuing residuals of her accepted work injury.
On August 15, 2008 counsel disagreed with the proposed termination and asserted that
Dr. Lancaster’s report was unrationalized, he ignored findings on the MRI scan reports and
improperly concluded appellant had a preexisting back condition. Appellant indicated that she
was never provided notice of a second functional capacity evaluation. She alleged that the
statement of accepted facts was misleading and that it noted she missed two functional capacity
evaluations and was terminated from employment due to lack of cooperation.
By decision dated August 19, 2008, the Office terminated appellant’s compensation
benefits, effective August 30, 2008, on the grounds that the weight of the medical evidence
established that she had no continuing disability resulting from her accepted employment
condition.
On August 26, 2008 appellant requested a telephonic hearing which was held on
December 15, 2008. She submitted a memorandum in support of her claim and reiterated that
Dr. Lancaster’s report was deficient, that she was never provided notice of a second functional
capacity evaluation and that the statement of accepted facts was misleading. Appellant
submitted treatments notes and laboratory results dated March 9 to July 25, 2007 from a
physician’s assistant, which showed no abnormalities in the urinalysis, blood work or
musculoskeletal system. She also submitted a June 5, 2008 Office referral for a functional
capacity evaluation; a June 12, 2008 letter from QTC medical services, the company that
schedule medical appointments and tests for the Office, noting appellant failed to attend the
functional capacity evaluation; a June 26, 2008 Office referral for an MRI scan on July 1, 2008;
a July 2, 2008 letter from the Office regarding a rescheduled functional capacity evaluation; and
a January 17, 2008 employing establishment termination letter, all previously of record.

3

Appellant submitted reports from Dr. Barberis dated July 17 to 20, 2007; physical therapy notes
from July 18 to 30, 2007 and a January 7, 2008 report from Dr. Martin, all previously of record.
In a decision dated March 24, 2009, an Office hearing representative affirmed the
August 19, 2008 Office decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.5
ANALYSIS
The Office accepted appellant’s claim for lumbar strain. Dr. Martin, a treating physician,
released appellant to work with restrictions on January 7, 2008. Thereafter, the Office referred
her for a second opinion evaluation by Dr. Lancaster.
In a May 8, 2008 report, Dr. Lancaster provided an extensive review of appellant’s
medical history, reported findings on examination and diagnosed lumbar strain, rule out
herniated disc. He noted findings of normal reflexes, normal quadriceps strength, no sensory
deficit and no spasm in the lumbar spine with pain in the mid portion of the back. Dr. Lancaster
noted x-rays revealed significant degenerative changes and advised that there were no objective
physical findings to support appellant’s subjective pain complaints. In a supplemental report
dated July 10, 2008, he advised that an MRI scan of the lumbar spine performed on July 1, 2008
was consistent with degenerative disc changes at L4-5 and L5-S1; a small central disc herniation
at L4-5; and a small broad-based posterior disc herniation at L5-S1. Dr. Lancaster correlated the
July 1, 2008 MRI scan evaluation with an MRI scan study of August 31, 2007 which was done
after appellant’s June 2007 injury and advised that degenerative changes were present at L4-5
and L5-S1 on August 31, 2007 indicating that she had a degenerative condition at the time of her
injury. He advised that the MRI scan evaluations showed objective evidence of a preexisting
degenerative condition and opined that appellant’s work-related lumbar strain would have not
caused the underlying disc herniation at L4-5 or L5-S1 since these were degenerative areas
previously noted on the July 31, 2007 study. Dr. Lancaster opined that on June 15, 2007
appellant had a temporary aggravation of a preexisting degenerative condition that would have
since subsided. He opined that her current symptoms were the result of the preexisting lumbar
3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

spine degenerative condition and its natural progression. Dr. Lancaster did not indicate that
appellant had any ongoing symptoms or conditions attributable to her work injury.
The Board finds that the opinion of Dr. Lancaster represents the weight of the evidence
and establishes that appellant’s work-related condition resolved. Dr. Lancaster indicated that
appellant did not have residuals from the condition of lumbar sprain and that her current
condition was due to her preexisting degenerative conditions. There is no contemporaneous
medical evidence of equal weight supporting appellant’s claim for continuing disability and
medical residuals.
For these reasons, the Office met its burden of proof in terminating appellant’s benefits
for the accepted lumbar sprain.
On appeal, appellant asserts that Dr. Lancaster did not review the MRI scan reports
performed on his behalf and incorrectly determined that she had a preexisting lumbar condition.
The Board finds this argument to be without merit. Dr. Lancaster specifically noted the findings
of the August 31, 2007 and July 1, 2008 MRI scan evaluations of the lumbar spine. Upon review
of both scans, he noted that the August 31, 2007 MRI scan, performed after the June 15, 2007
work injury, revealed degenerative disc changes at the time of injury which suggested a
progressive degenerative condition unrelated to the work injury. Appellant further alleged that
the functional capacity evaluation was never performed and therefore Dr. Lancaster’s opinion
was incomplete. The Board notes that she failed to appear for the June 11, 2008 functional
capacity evaluation and Dr. Lancaster proceeded with his evaluation based on the obtained
diagnostic MRI scan. Dr. Lancaster concluded that appellant had no residuals of her workrelated injury. He clearly opined that her current symptoms were due to her preexisting
degenerative condition that was not employment related. Therefore any restrictions from a
functional capacity evaluation would be based on appellant’s degenerative disc disease and not
her work injury. Appellant further asserts that the Office provided Dr. Lancaster with a false
statement of accepted facts which indicated that she was terminated due to lack of cooperation
with the employing establishment. The Board notes that the statement of accepted facts noted
that she was terminated from employment due to noncompliance with an agency requirement to
attend the police academy and did not state that she was uncooperative.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
August 30, 2008.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2009 and August 19, 2008 are affirmed.
Issued: April 25, 2011
Washington, DC

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

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

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

6