United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0123
Issued: October 4, 2018

Case Submitted on the Record

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

JURISDICTION
On October 23, 2017 appellant, through counsel, filed a timely appeal from an August 16,
2017 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 to consider the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits for the accepted conditions of bilateral carpal tunnel syndrome and exacerbation of right
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.

wrist de Quervain’s tenosynovitis, and wage-loss compensation and medical benefits for the
accepted aggravation of bilateral carpometacarpal (CMC) joint arthritis, effective
December 15, 2016.
FACTUAL HISTORY
On September 14, 2011 appellant, then a 46-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that her bilateral carpal tunnel syndrome was
caused by her federal employment. OWCP accepted the claim for bilateral carpal tunnel
syndrome, and later expanded acceptance of the claim to include exacerbation of right wrist
de Quervain’s tenosynovitis and aggravation of bilateral hand basilar joint arthritis. It authorized
carpal tunnel surgery with right carpal tunnel surgery performed on April 20, 2012 and left carpal
tunnel surgery performed on July 6, 2012. OWCP accepted a recurrence of disability beginning
February 15, 2013. Appellant returned to work in a modified position on April 5, 2013.
In an April 1, 2013 report, Dr. Rose Ibrahim, a treating physician specializing in family
medicine, provided examination findings and diagnosed bilateral carpal tunnel syndrome,
osteoarthritis of the hands, and radial styloid tenosynovitis. She noted work restrictions of no
pushing, pulling, or lifting more than 20 pounds and no repetitive movement.
On April 1, 2014 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. Emmanuel Obianwu, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the status of her accepted
conditions and work capacity.
In an April 15, 2014 report, Dr. Obianwu provided results of an examination conducted on
that date. He reviewed the SOAF and appellant’s medical record and provided an accurate history
of the accepted employment injury. Dr. Obianwu noted her complaints of some pain in her right
wrist and thumb. He also noted that the left hand and wrist had improved, although appellant
developed left thumb triggering and had occasional numbness. Dr. Obianwu reported that she was
currently working with restrictions. A physical examination revealed bilateral negative wrist
Tinel’s testing, vaguely positive bilateral wrist Phalen’s testing, negative Finkelstein’s test, no
extensor compartment swelling, positive bilateral thumb Grind test, no overt sensory perception
discrepancy between the median and ulnar innervated area in either hand, no intrinsic atrophy, and
inconclusive sensory perception. Dr. Obianwu diagnosed persistent bilateral carpal tunnel
syndrome of the both wrists and hands; de Quervain’s tenosynovitis, resolved; and persistent mild
bilateral basal joint arthritis. He opined that appellant continued to suffer from bilateral carpal
tunnel syndrome based on examination findings and review of diagnostic tests. Based on the
negative Finkelstein’s test and lack of swelling or tenderness along the first dorsal compartment,
Dr. Obianwu concluded the de Quervain’s tenosynovitis had resolved. He also opined that
aggravation of appellant’s bilateral basal joint arthritis continued based on the positive bilateral
thumb Grind test. Dr. Obianwu opined that she could not return to her date-of-injury job, but was
capable of working with restrictions. In an attached work capacity evaluation form (Form OWCP5c) he noted permanent work restrictions of 50 pounds of pushing or pulling, up to 30 pounds of
lifting, and up to eight hours of repetitive wrist movement.

2

In a June 6, 2014 Form OWCP-5c, Dr. Ibrahim provided permanent work restrictions of
up to eight hours of repetitive wrist movement and up to eight hours of lifting, pushing, or pulling
up to 20 pounds. She further noted that appellant could perform tasks with her hands requiring
moderate grip, force, and repetition as tolerated.
On November 7, 2014 OWCP referred appellant to an independent medical examination
(IME) with Dr. Donald Garver, a Board-certified orthopedic surgeon, to resolve the conflict in the
medical opinion evidence between Dr. Obianwu and Dr. Ibrahim regarding appellant’s work
restrictions due to residuals of the accepted conditions.
In a report dated January 7, 2015, Dr. Garver, based upon a review of the medical records,
SOAF, and physical examination, concluded that the accepted bilateral carpal tunnel syndrome
and exacerbation of right wrist de Quervain’s tenosynovitis had resolved, but that appellant
continued to have residuals from right thumb arthritis and some left thumb arthritis. He provided
employment, medical, and injury histories. Dr. Garver reviewed x-rays taken that day revealing
significant bilateral hand arthritis with significant bilateral thumb metacarpophalangeal joint space
narrowing and spurring. Medical records reviewed and physical examination findings were
detailed. Dr. Garver found that, although appellant had positive electromyogram (EMG) studies,
he opined that those studies were not conclusive evidence of carpal tunnel syndrome. He opined
that she was capable of working with restrictions which included carrying up to 20 pounds, up to
two hours of pushing, and up to an hour of pulling/lifting.
On January 19, 2016 OWCP, as instructed by a hearing representative,3 referred appellant
to Dr. Ronald Lederman, a Board-certified orthopedic surgeon, to resolve the conflict in the
medical opinion evidence regarding the status of her accepted bilateral hand conditions.4
In an IME report dated February 10, 2016, Dr. Lederman, based upon a review of the
medical evidence, SOAF, and physical examination, concluded that appellant no longer had
residuals or disability due to the accepted work conditions. He detailed findings from medical
reports and diagnostic tests he reviewed. Physical examination findings included nontender and
well-healed carpal tunnel incisions, negative Finkelstein’s, excellent bilateral wrist, range of
motion, negative Tinel’s sign and Phalen’s test in both wrists, no forearm tenderness or pain, and
no wrist soft tissue swelling or tenderness. The only positive examination finding was bilateral
thumb CMC joint tenderness, which was worse on the right. Dr. Lederman agreed with Dr. Garver
that EMG studies are not proven to be conclusive evidence of carpal tunnel syndrome. The only
3

On January 16, 2016 an OWCP hearing representative set aside a March 9, 2015 schedule award determination
as she found that there was an unresolved conflict in the medical opinion evidence between Dr. Garver and
Dr. Obianwu, and appellant’s treating physician, Dr. Ibrahim, regarding current work-related conditions. She noted
that Dr. Garver had been selected to resolve the conflict between Dr. Obianwu and Dr. Ibrahim regarding disability
and work restrictions. The hearing representative found that a new conflict arose as Dr. Garver opined that the
accepted carpal tunnel condition had resolved while both Dr. Obianwu and Dr. Ibrahim opined that the condition had
not resolved. In addition, Dr. Garver attributed appellant’s right thumb CMC osteoarthritis to her employment.
4

In the questions posed to the IME, OWCP identified the conflict as arising among Dr. Garver, Dr. Obianwu, and
Dr. Ibrahim regarding disability and work restrictions. It incorrectly included Dr. Obianwu, an OWCP referral
physician, as a conflict under 5 U.S.C. § 8123 cannot exist between OWCP physicians as a conflict can only arise
between a physician for the employee and an OWCP physician. See C.M., Docket No. 09-1268 (issued January 22,
2010); Delphia Y. Jackson, 55 ECAB 373 (2004).

3

diagnosis that he found was bilateral thumb CMC joint arthritis, which he noted could be
aggravated by repetitive work. However, Dr. Lederman opined that the condition was not
attributable to appellant’s accepted work factors.
On May 12, 2016 OWCP requested clarification from Dr. Lederman as to whether
appellant’s employment continued to aggravate the accepted basil joint arthritis or whether the
aggravation has ceased.
In June 29, 2016 supplemental IME report, Dr. Lederman advised that he reviewed a video
disc provided by OWCP showing mail processing clerk duties. After reviewing the video, he
reported that his opinion was unchanged. Dr. Lederman explained that the job duties he reviewed
would not have caused the thumb joint arthritis, but some of the maneuvers could aggravate
appellant’s symptoms.
On July 11, 2016 OWCP issued a letter proposing to terminate appellant’s medical benefits
for her accepted bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s
tenosynovitis. It found that the weight of the medical opinion evidence, as represented by the
impartial medical examiner,5 established that the accepted bilateral carpal tunnel syndrome and
exacerbation of right wrist de Quervain’s tenosynovitis had resolved without disability or
continuing residuals. OWCP further determined that there was an unresolved conflict between
Dr. Lederman and Dr. Ibrahim regarding whether the accepted aggravation of bilateral thumb
CMC joint arthritis continued to be aggravated or caused by work factors.
On July 27, 2016 OWCP referred appellant to Dr. Paul Drouillard, an osteopathic Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence6 regarding
whether the accepted aggravation of bilateral thumb CMC joint arthritis continued to be aggravated
or caused by work factors.7
In an August 3, 2016 report, Dr. Ibrahim noted her disagreement with the proposal to
terminate appellant’s medical benefits for the accepted bilateral carpal tunnel syndrome and
exacerbation of right wrist de Quervain’s tenosynovitis. She noted that appellant continued to
receive care for these conditions. Dr. Ibrahim further noted that the repetitive work appellant
performed was the cause of swelling, pain, and discomfort in her hands and wrists.
Dr. Ibrahim, in a form report dated August 3, 2016, provided examination findings and
diagnosed carpal tunnel syndrome.

5

OWCP incorrectly identified Dr. Kwartowitz as the impartial medical examiner when appellant referred to and
was seen by his colleague, Dr. Lederman.
6
OWCP misidentified the conflict as between appellant’s treating physician, Dr. Ibrahim, and an OWCP referral
physician, Dr. Kwartowitz. Appellant was not referred or seen by Dr. Kwartowitz. The record shows that appellant
had been referred to and seen by Dr. Lederman, a colleague of Dr. Kwartowitz.
7
In the letter to Dr. Drouillard, OWCP identified him as a second opinion physician while in the letter to appellant
he was identified as an impartial medical examiner.

4

On August 10, 2016 an EMG test was conducted by Dr. Ram Garg, a physician
specializing in neurology. He interpreted the results of the test as abnormal and evidence of
bilateral carpal tunnel syndrome, worse on the right side.
In an August 22, 2016 report, Dr. Drouillard, based upon review of medical records and
SOAF, appellant’s complaints, and physical examination, diagnosed mild bilateral thumb CMC
degenerative joint disease, status post bilateral carpal tunnel releases, and status post
tenovaginotomy first dorsal right wrist compartment for de Quervain’s disease. He noted
successful surgeries for the bilateral carpal tunnel and right wrist de Quervain’s disease. Physical
findings included no bilateral hand and wrist swelling, skin discoloration, inflammation, or
erythema; full bilateral hand and wrist range of motion; negative bilateral Tinel’s and Phalen’s
tests; negative thoracic outlet test, bilateral thumb CMC joint tenderness; and negative Finkelstein
test. Dr. Drouillard reported minor arthritic changes in the bilateral CMC thumb joints, which he
observed was common among people in appellant’s gender and age group. He advised that he did
not believe that bilateral CMC arthritic condition was employment related or aggravated by her
employment duties. Thus, Dr. Drouillard concluded that the arthritic changes in appellant’s
thumbs were unrelated to her employment and required no treatment or work restrictions. He
opined that her bilateral arthritic thumb conditions were unrelated to her employment as they were
degenerative in nature.
On August 25, 2016 OWCP requested that Dr. Lederman review an updated EMG study
and provide an opinion of whether review of this test altered his opinion regarding the accepted
bilateral carpal tunnel syndrome.
On August 25, 2016 OWCP issued a letter proposing to terminate appellant’s wage-loss
compensation and medical benefits for the accepted aggravation of bilateral CMC joint arthritis.
It found that Dr. Drouillard was entitled to the special weight of the medical evidence accorded to
an impartial medical examiner.
On October 11, 2016 OWCP received an August 10, 2016 report from Dr. Garg diagnosing
bilateral carpal tunnel syndrome and listing work restrictions. Dr. Garg noted the injury history
and provided examination findings, which included normal bilateral upper extremity strength and
tone.
In a November 7, 2016 addendum report, Dr. Lederman reviewed an August 10, 2016
EMG as requested by OWCP and that his opinion was unchanged. He explained that, as noted in
his initial report, a postoperative positive EMG was not indicative that carpal tunnel syndrome was
still present. Dr. Lederman explained that his clinical examination was inconsistent with a finding
of carpal tunnel syndrome, and therefore the August 10, 2016 EMG was insufficient evidence to
alter his opinion or recommendation.
By decision dated December 20, 2016, OWCP finalized the termination of appellant’s
medical benefits for bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s
tenosynovitis, effective December 15, 2016. In a separate decision dated December 20, 2016, it
finalized the termination of her wage-loss compensation and medical benefits for the accepted
aggravation of bilateral thumb CMC joint arthritis, also effective December 15, 2016.

5

In a letter dated December 27, 2016, counsel disagreed with the December 20, 2016
decisions and requested a telephonic hearing before an OWCP hearing representative.
By decision dated August 16, 2017, an OWCP hearing representative affirmed the
December 20, 2016 decision terminating appellant’s medical benefits for the accepted bilateral
carpal tunnel syndrome and exacerbation of right wrist de Quervain’s tenosynovitis. She also
affirmed the December 20, 2016 decision terminating wage-loss compensation and medical
benefits for the accepted aggravation of bilateral CMC joint arthritis.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.8 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.9 The right to medical benefits for an accepted condition is not limited to the
period of entitlement for disability.10 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
would require further medical treatment.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.12 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.13
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. It authorized
carpal tunnel surgery with right carpal tunnel surgery performed on April 20, 2012 and left carpal
tunnel surgery on July 6, 2012. OWCP subsequently accepted additional conditions of
exacerbation of right wrist de Quervain’s tenosynovitis and aggravation bilateral hand basilar joint
arthritis. By decision dated December 20, 2016, it terminated medical benefits for the accepted
conditions of bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s
tenosynovitis, finding that these conditions had resolved with or without residuals based on the
8

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

9

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

10

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

12

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
13
A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

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opinion of IME Dr. Lederman. In a separate decision dated December 20, 2016, OWCP finalized
the termination of her wage-loss compensation and medical benefits for the accepted aggravation
of bilateral thumb CMC joint arthritis, also effective December 15, 2016. By decision dated
August 16, 2017, an OWCP hearing representative affirmed both December 20, 2016 termination
decisions. The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 15, 2016, for the accepted
conditions of bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s
tenosynovitis,
Dr. Obianwu, acting as a second opinion physician on behalf of OWCP, opined in an
April 15, 2014 report, that the accepted condition of exacerbation of right wrist de Quervain’s
tenosynovitis had resolved, but that appellant continued to have residuals from the accepted
bilateral carpal tunnel and aggravation bilateral hand basilar joint arthritis. In an April 1, 2013
report, appellant’s attending physician, Dr. Ibrahim, opined that appellant continued to have
residuals and disability due to bilateral carpal tunnel syndrome, osteoarthritis, and radial styloid
tenosynovitis. OWCP identified a conflict in the medical opinion evidence between Dr. Obianwu,
the second opinion physician, and Dr. Ibrahim on the issue of appellant’s work restrictions. It
selected Dr. Garver, a Board-certified orthopedic surgeon, as impartial specialist on this specific
issue. Dr. Garver reviewed the medical record and SOAF. After examining appellant, he opined
that the accepted conditions of bilateral carpal tunnel syndrome and exacerbation of right wrist
de Quervain’s tenosynovitis had resolved, but she continued to have residuals of her bilateral
thumb arthritis. Since Dr. Garver was not asked to address whether her accepted conditions had
resolved, his opinion was not entitled to the special weight of the medical evidence afforded to an
IME on that specific issue.14 His opinion however was entitled to its own intrinsic value as that of
a second opinion examiner. Thus, a new conflict was created between Dr. Ibrahim, appellant’s
treating physician, and Dr. Garver, as a second opinion physician, regarding the issue of whether
appellant’s accepted conditions of bilateral carpal tunnel syndrome and exacerbation of right wrist
de Quervain’s tenosynovitis had resolved.
OWCP properly referred appellant to Dr. Lederman for an impartial medical examination
to resolve the newly created conflict. In his February 10, 2016 report, Dr. Lederman reviewed
appellant’s history of injury and history of medical treatment. Appellant’s findings on physical
examination were reported as normal, except for bilateral CMC joint tenderness. Based on
physical examination findings, Dr. Lederman concluded that she had no residuals due to the
accepted bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s
tenosynovitis.
The Board finds that Dr. Lederman provided insufficient medical rationale for his
conclusion that appellant no longer required medical treatment for her accepted conditions of
bilateral carpal tunnel syndrome and exacerbation of right wrist de Quervain’s tenosynovitis.
Dr. Lederman’s opinion is conclusory in nature. In determining the probative value of an impartial
medical examiner’s report, the Board considers such factors as the opportunity for and
thoroughness of examination performed by the physician, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested and the
14

See J.C., Docket No. 16-0952 (issued October 24, 2016).

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medical rationale expressed by the physician on the issues addressed to him or her by OWCP.15
Dr. Lederman failed to explain why the objective findings of record established the accepted
conditions had resolved. He rejected appellant’s EMG studies, which showed evidence of
continued bilateral carpal tunnel syndrome, without a medical explanation supported by rationale,
as to why these test findings were of no importance, while finding that his own limited physical
examination of appellant’s hands were conclusive. When an IME fails to provide medical
reasoning to support his or her conclusory statements about a claimant’s condition, it is insufficient
to resolve a conflict in the medical evidence.16
Because Dr. Lederman’s report lacks probative value, the Board finds that OWCP erred in
relying on his opinion as the basis to terminate medical benefits for the accepted bilateral carpal
tunnel and right wrist tenosynovitis conditions. He provided conclusions without sufficient
medical rationale to support his findings. The Board shall reverse the termination of medical
benefits, effective December 15, 2016 as OWCP has not met its burden of proof.17
The Board further finds that OWCP failed to meet its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective December 15, 2016, for the
accepted aggravation of bilateral CMC joint arthritis.
Appellant was referred to Dr. Drouillard to resolve the conflict of medical evidence
regarding this condition. OWCP did not meet its burden of proof because his opinion was
inconsistent with the SOAF. OWCP accepted that appellant’s bilateral CMC joint arthritis was
work related.17 It is well established that a physician’s opinion must be based on a complete and
accurate factual and medical background. When OWCP has accepted an employment condition
as occurring in the performance of duty, the physician must base his opinion on these accepted
conditions.18
As noted, in his August 22, 2016 report, Dr. Drouillard opined that appellant’s mild
bilateral thumb CMC degenerative joint disease was common among people of her gender and age
group. He further opined that her employment did not aggravate or cause her bilateral CMC
arthritis as any changes were degenerative in nature and unrelated to her employment.

15

James T. Johnson, 39 ECAB 1252 (1988).

16

See A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued September 9,
2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely of conclusory
statements without supporting rationale is of little probative value).
17

See Willa M. Frazier, 55 ECAB 379 (2004).

18

V.C., Docket No. 14-1912 (issued September 22, 2015).

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Medical opinions based on an incomplete or inaccurate history are of diminished probative
value. When OWCP has accepted an employment condition as occurring in the performance of
duty, the physician must base his opinion on the accepted facts.20
19

In Paul King,21 the Board found that the report of an impartial medical examiner who
disregarded a critical element of the SOAF was of diminished probative value. In King, the
impartial medical examiner also disagreed with the medical basis for acceptance of a condition.
The Board found that this defective report was insufficient to resolve an existing conflict of
medical opinion evidence.22
Dr. Drouillard likewise disregarded the SOAF and, as in King, did not rely on the SOAF
regarding the accepted conditions. The Board therefore finds his report to be of diminished
probative value. The Board notes that it is the function of a medical expert to give an opinion only
on medical questions, not to find facts.23
The Board therefore finds that Dr. Drouillard’s opinion is of limited value on the relevant
issue in this case, and OWCP improperly relied on his opinion to terminate appellant’s wage-loss
compensation and medical benefits for the accepted aggravation of bilateral CMC joint arthritis.
Thus OWCP failed to meet its burden of proof.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits for the accepted conditions of bilateral carpal tunnel syndrome and exacerbation
of right wrist de Quervain’s tenosynovitis, and wage-loss compensation and medical benefits for
the accepted aggravation of bilateral CMC joint arthritis, effective December 15, 2016.

19

L.G., Docket No. 09-1692 (issued August 11, 2010).

20

J.H., Docket No. 16-0590 (issued September 12, 2016).

21

4 ECAB 356 (2003).

22

Id.

23

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 16, 2017 is reversed.
Issued: October 4, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
N.J., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1148
Issued: March 8, 2021

Case Submitted on the Record

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

JURISDICTION
On May 13, 2020 appellant, through counsel, filed a timely appeal from an April 22, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on May 21, 2018, as alleged.
FACTUAL HISTORY
On May 23, 2018 appellant, then a 39-year-old corrections officer, filed a traumatic injury
claim (Form CA-1) alleging that at 7:02 a.m. on May 21, 2018 she was injured in a motor vehicle
accident (MVA) while in the performance of duty. She explained that she was driving to firearms
training when a large tree branch fell through the windshield and roof of her vehicle. While pulled
over, the back of her vehicle was rear-ended by a speeding car. Appellant noted that she sustained
lacerations on her face, a “busted” lip, headaches, and stiffness in her back, neck, and shoulders.
She also indicated that she could not bend her knees after the accident. On the reverse side of the
claim form, the employing establishment acknowledged that appellant was in the performance of
duty when her injury occurred. Appellant did not stop work.
Appellant subsequently submitted a partially legible May 22, 2018 attending physician’s
report (Form CA-16) in which Dr. Omar Ahmed, a Board-certified neurologist, acknowledged that
she was involved in a car accident and checked a box marked “Yes” to indicate that her conditions
were caused by the May 21, 2018 employment incident. The form provided that she would need
to participate in physical therapy and estimated that she would be totally disabled from work from
May 22 to June 21, 2018.
In a September 14, 2018 medical note, Dr. Alexios Apazidis, a Board-certified orthopedic
surgeon, advised that appellant would be undergoing surgery on September 28, 2018 and opined
that she would be totally disabled from work for 30 days as a result of the difficulties she
encountered in performing her employment duties.
In an October 10, 2018 development letter, OWCP noted that when appellant’s claim was
first received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
Based on this criteria, it had administratively approved payment of a limited amount of medical
expenses without formally considering the merits of her claim. However, a formal decision was
now required. OWCP advised appellant of the deficiencies of her claim and instructed her as to
the factual and medical evidence necessary to establish her claim. It provided a factual
questionnaire for her completion concerning the circumstances surrounding her claimed injury and
requested that she submit a narrative medical report from her physician, which contained a detailed
description of findings and diagnoses, explaining how the reported incident caused or aggravated
her medical condition. OWCP afforded appellant 30 days to respond.
In an October 22, 2018 medical note, Dr. Apazidis diagnosed left knee pain and right
shoulder pain. He indicated that appellant could return to work on light duty on October 29, 2018.
Dr. Apazidis also indicated that she underwent shoulder surgery on September 28, 2018 and
underwent knee surgery on October 12, 2018.
By decision dated November 13, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her injury and/or medical

2

condition arose during the course of employment and within the scope of compensable work
factors.
On November 21, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a May 21, 2018 police report which recounted the events of the
incident when her vehicle was disabled due to a fallen tree branch and a second vehicle then struck
the rear end of her vehicle. She was transported to the hospital for treatment.
In a June 25, 2018 diagnostic report, Dr. Sasan Azar, a Board-certified neuroradiologist,
performed a magnetic resonance imaging (MRI) scan of appellant’s cervical spine, finding a
reversal of the normal curvature of the cervical spine, disc desiccation at C2-3 and C3-4, a posterior
bulge at the C4-5 level, early disc desiccation at C5-6 and a posterior bulge at C6-7.
In a July 2, 2018 diagnostic report, Dr. Steve Losik, a Board-certified radiologist,
performed an MRI scan of appellant’s left knee and diagnosed an intrameniscal tear in the anterior
horn of the lateral meniscus and mild joint effusion consistent with recent trauma. In a separate
diagnostic report of even date, he performed an MRI scan of her right shoulder, finding Type III
acromion with hypertrophic changes of the acromioclavicular joint with impingement of the
rotator cuff and bone marrow edema in the distal clavicle and adjacent acromion with fluid in the
acromioclavicular joint.
In operative reports dated September 28 and October 12, 2018, Dr. Apazidis noted that
appellant underwent surgery to treat her right shoulder rotator cuff tear and left knee meniscus
tear, respectively.
In medical reports dated October 10 and 19, 2018, Dr. Apazidis evaluated appellant after
her surgeries and diagnosed neck pain, low back pain, impingement syndrome of the right
shoulder, left knee pain and a left knee lateral meniscus tear. He recommended that she continue
her nonsurgical care and begin physical therapy. Dr. Apazidis identified May 21, 2018 as the onset
date of appellant’s conditions and opined that, based on her history of injury, her injuries were
causally related to the May 21, 2018 employment incident.
In an undated disability letter, Dr. Ahmed indicated that he had been treating appellant
regarding a May 21, 2018 car accident. He indicated that she underwent right shoulder surgery on
September 28, 2018 and left knee surgery on October 12, 2018. Dr. Ahmed stated that appellant
was participating in physical therapy two to three times per week and opined that she may be able
to resume work.
A telephonic hearing was held on March 22, 2019. Appellant testified that on the date of
the incident she was traveling to firearms training with a coworker. She recounted that she was
scheduled to travel for training and that she was receiving compensation for the training. Appellant
then described the May 21, 2018 employment incident where she was rear-ended by a speeding
vehicle after she had parked when a fallen branch fell through her windshield and roof. She
sustained lacerations to her face, damage to her front teeth and also injured her right shoulder and
left knee. She also detailed her subsequent medical treatment for injuries she sustained during the
accident. Appellant stated that the vehicle she was traveling in was her personal vehicle and that
3

she was being reimbursed for the mileage. Counsel for appellant explained that she was required
to perform her firearms training annually on an assigned date. OWCP’s hearing representative
requested that appellant provide copies of her travel documentation as well as a response to
OWCP’s development questionnaire and any other information demonstrating that the employing
establishment requested her to attend the training.
By decision dated June 5, 2019, OWCP’s hearing representative set aside OWCP’s
November 13, 2018 decision and remanded the case for further action, requesting that OWCP
obtain a statement from the employing establishment regarding appellant’s work status.
In a June 10, 2019 development letter, OWCP requested that the employing establishment
respond to questions concerning whether or not appellant was in travel status during the May 21,
2018 employment incident.
In response, the employing establishment submitted a July 4, 2019 statement in which it
provided a schedule and instructions sent to appellant for her firearms certification scheduled for
May 21, 2018 and explained that she was expected to perform her official duties on requalifying
with her required weapons on that day. It also stated that she used her personal vehicle to travel
to the training not a government vehicle. The attached firearms information sheet also provided
that there would be a passenger van that would depart for the training facility at 6:10 a.m. and that,
if employees chose to travel using their personal vehicles, they would not be reimbursed for
mileage or fuel. A daily assignments sheet demonstrated that appellant was scheduled for firearms
training on May 21, 2019 and that she was paid continuation of pay (COP) on May 22, 2019.
By decision dated September 4, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her injury and/or medical
condition arose during the course of employment and within the scope of compensable work
factors.
On September 11, 2019 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
Appellant submitted an April 11, 2019 narrative medical report in which Dr. Apazidis
detailed his treatment for her in relation to the May 21, 2018 MVA.
A telephonic hearing was held on January 13, 2020. Counsel for appellant argued that
appellant was directed by the employing establishment to attend firearms training the day of the
employment incident and the fact that there was a van available to take her to the training was not
relevant to the issue of performance of duty. He reasoned that because she was sent for mandatory
training that was required as an essential function of her employment qualified her traveling as a
part of a special dispatch. Appellant indicated that there were no alternative sites at her normal
employing establishment where she could complete her firearms training and that she was still
compensated for attending the training that day. She recounted that she received instructions on
training techniques, and explained that employees usually transport themselves to training without
use of the employing establishment’s van and that the incident occurred on a regular workday in
which she was scheduled to work. The hearing representative allowed appellant an additional 30
days to submit evidence.

4

By decision dated February 21, 2020, OWCP’s hearing representative affirmed OWCP’s
September 4, 2019 decision.
On March 26, 2020 appellant, through counsel, requested reconsideration of OWCP’s
February 21, 2020 decision.
Appellant attached a March 17, 2020 letter in which A.F., the assistant human resource
manager, explained that appellant was required to qualify with various firearms yearly to maintain
appellant’s position and that she was authorized to utilize her personal vehicle to drive to the
training range. A.F. also provided that appellant’s work hours on May 21, 2018 were documented
from 6:00 a.m. to 2:00 p.m.
In an attached undated statement, appellant explained that she was scheduled for work from
6:00 a.m. to 2:00 p.m. on May 21, 2018. She was scheduled to arrive at the training facility at
8:00 a.m. and was given two hours of travel time.
By decision dated April 22, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly founded prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”7 To arise in the course of employment, in
general, an injury must occur: (1) at a time when the employee may reasonably be stated to be
engaged in the master’s business; (2) at a place when he or she may reasonably be expected to be
in connection with his or her employment; and (3) while he or she was reasonably fulfilling the

3

Id.

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7
C.L., Docket No. 19-1985 (issued May 12, 2020); S.F., Docket No. 09-2172 (issued August 23, 2010); Valerie C.
Boward, 50 ECAB 126 (1998).

5

duties of his or her employment or engaged in doing something incidental thereto.8 In deciding
whether an injury is covered by FECA, the test is whether, under all the circumstances, a causal
relationship exists between the employment itself, or the conditions under which it is required to
be performed, and the resultant injury.9
The Board has also recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Rather, such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.10 Due primarily to the myriad of factual situations presented by individual cases over
the years, certain exceptions to the general rule have developed where the hazards of travel may
fairly be considered a hazard of employment. Exceptions to the general coming and going rule
have been recognized, which are dependent upon the relative facts of each claim: (1) where the
employment requires the employee to travel on the highways; (2) where the employing
establishment contracts to and does furnish transportation to and from work; (3) where the
employee is subject to emergency calls, as in the case of firefighter; (4) where the employee uses
the highway to do something incidental to his or her employment with the knowledge and approval
of the employing establishment; and (5) where the employee is required to travel during a curfew
established by local, municipal, county, or state authorities because of civil disturbances or other
reasons.11 OWCP procedures indicate:
“Where the Employment Requires the Employee to Travel. This situation will not
occur in the case of an employee having a fixed place of employment unless on an
errand or special mission. It usually involves an employee who performs all or
most of the work away from the industrial premises, such as a chauffeur, truck
driver, or messenger. In cases of this type, the official superior should be requested
to submit a supplemental statement fully describing the employee’s assigned duties
and showing how and in what manner the work required the employee to travel,
whether on the highway or by public transportation. In injury cases a similar
statement should be obtained from the injured employee.”12
The Board has also recognized the special errand exception to the going to and coming
from work rule. When the employee is to perform a special errand, the employing establishment
is deemed to have agreed, expressly or impliedly, that the employment service should begin when
the employee leaves home to perform the errand. Ordinarily, cases falling within this exception
involve travel which differs in time or route or because of an intermediate stop, from the trip which
is normally taken between home and work. In such a case, the hazard encountered in the trip may
8

S.V., Docket No. 18-1299 (issued November 5, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
9

Mark Love, 52 ECAB 490 (2001).

10

See R.G., Docket No. 16-1419 (issued December 6, 2016).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(b) (August 1992).

6

differ somewhat from that involved in normally going to and returning from work. However, the
essence of the exception is not found in the fact that a greater or different hazard is encountered,
but in the agreement to undertake a special task. For this reason, coverage is afforded from the
time the employee leaves home, even though in time and route the journey may be, in part, identical
to that normally followed in going to work.13
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an injury in the
performance of duty on May 21, 2018, as alleged.
The evidence of record indicates that on May 21, 2018 at 7:02 a.m. appellant was traveling
to a required firearms training when a tree branch fell and impacted the roof and windshield of her
personal vehicle. While pulled over her vehicle was rear-ended by a speeding vehicle. OWCP
denied appellant’s traumatic injury claim, finding that her injury was caused by an ordinary
nonemployment hazard of the journey itself, which is shared by all travelers.
In accordance with OWCP’s procedures, OWCP requested in a June 10, 2019 development
letter that the employing establishment respond to a series of questions, including describing
appellant’s assigned duties and show how and in what manner the work required her to travel. In
a July 4, 2019 statement, the employing establishment explained that she was expected to perform
her official duties on requalifying with her required weapons on May 21, 2018 and attached a daily
assignment sheet that demonstrated that she was assigned to perform firearms training on the day
of the employment incident. Further, in a March 17, 2020 letter, the assistant human resources
manager indicated that appellant’s firearms training was a yearly requirement associated with her
employment duties. She attested that appellant was authorized to utilize her personal vehicle to
drive to the training range and that appellant’s work hours on May 21, 2018 were documented
from 6:00 a.m. to 2:00 p.m.
Appellant explained on multiple occasions that she was assigned to travel to a separate
location from her usual fixed location of work in order to complete required firearms training. The
employing establishment’s March 17, 2020 letter and a daily assignment sheet establish that she
was authorized to utilize her personal vehicle to travel to the training range and that she was on
the clock at 7:02 a.m. when the MVA occurred. For this reason, appellant was afforded coverage
from the time she left her home to travel to the firearms training under the special errand
exception.14 The Board thus finds that she has met her burden of proof to establish that the May 21,
2018 employment incident occurred in the performance of duty, as alleged. As it has been
established that appellant was in the performance of duty, the medical evidence of record must be
considered.15

13

D.T., Docket No. 11-0751 (issued March 12, 2012).

14

Id.

15

C.R., Docket No. 19-1721 (issued June 17, 2020).

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As OWCP has not yet evaluated the medical evidence to determine whether there is a
causal relationship between the accepted employment incident and a diagnosed condition, the case
must be remanded to OWCP. On remand, it shall evaluate the medical evidence of record to
determine whether appellant sustained an injury and/or disability due to the May 21, 2018
employment incident.16 After any further development as deemed necessary, OWCP shall issue a
de novo decision.17
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on May 21, 2018, as alleged.18 The case is not in posture for decision,
however, with regard to whether appellant has met her burden of proof to establish causal
relationship between her diagnosed condition(s) and the accepted employment incident.

16

The Board notes that appellant reported on her Form CA-1 and testified during the hearing that she sustained
facial lacerations and a lip contusion. On remand, OWCP shall apply its procedures pertaining to visible injuries with
regard to appellant’s claimed contusions, abrasions, lacerations, and/or swelling. See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) (June 2011); Chapter 2.805.3(c)
(January 2013).
17

P.S., Docket No. 19-1818 (issued April 14, 2020).

18

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No.
19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54
ECAB 608 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


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

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

Docket No. 09-1798
Issued: August 5, 2010

Case Submitted on the Record

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

JURISDICTION
On July 6, 2009 appellant filed a timely appeal from a July 15, 2008 decision of the
Office of Workers’ Compensation Programs that denied her claim and a May 4, 2009 decision
that denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an ankle injury on January 22, 2008; and (2) whether the Office properly refused to
reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant asserts that the Office did not properly apply Board case precedent.

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An
appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20
C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 3, 2008 appellant, then a 65-year-old rural mail carrier, filed a traumatic
injury claim alleging that on January 22, 2008 she broke her ankle when she slipped and fell on
ice in the performance of duty. She stopped work that day. On January 30, 2008 Dr. Robert
Zura, Board-certified in orthopedic surgery, performed right ankle surgery and advised that
appellant could not work from four to five months.
The employing establishment controverted the claim, contending that appellant was not
in the performance of duty at the time of injury. On February 27, 2008 the Office advised
appellant that the evidence submitted was not sufficient to establish that she was injured while in
the performance of duty, noting that it occurred on her property. In a February 4, 2008
statement, appellant stated that she drove one of her personal automobiles to deliver her route or
an employing establishment vehicle. On January 22, 2008 she went to her vehicle to warm it up
and returned to her house to gather her belongings. When returning to her car, she slipped on ice
and broke her ankle. Appellant did not know until she reported to work whether she would be
using her own automobile or a postal vehicle to deliver mail. She attached medical reports from
Dr. Zura, who advised that she would be out of work four or five months.
By decision dated April 4, 2008, the Office denied the claim, finding that appellant was
not in the performance of duty when injured.
On April 14, 2008 appellant, through her representative, requested reconsideration. She
argued that she had already entered and started her car and was in the performance of duty.
Appellant returned to her house to get the supplies necessary for her postal duties and noted that
she was required to maintain a safe vehicle.
In a July 15, 2008 decision, the Office denied modification of the April 4, 2008 decision.
It noted that a rural carrier was required to maintain his or her vehicle in order to serve the route
safely and efficiently and that appellant would be in the performance of duty while driving her
own vehicle between home and the employing establishment. But since she started the car and
then returned to her home to get supplies, she was not performing actual duties and her injury
was not in the course of her employment.
On March 17, 2009 appellant’s representative requested reconsideration, arguing that
appellant was performing a required safety check before entering the vehicle when she slipped
and fell on January 22, 2008, which placed her in the performance of duty. He submitted copies
of employing establishment policies and publications regarding safety checks and duties and
responsibilities of rural carriers.
In a May 4, 2009 decision, the Office denied appellant’s reconsideration request, finding
that her contention had been previously addressed and the materials submitted were not relevant.
LEGAL PRECEDENT -- ISSUE 1
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might

2

befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee/employer relation. Instead, Congress
provided for the payment of compensation for “the disability or death of an employee resulting
from personal injury sustained while in the performance of his duty.”2 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.”3 In deciding whether an injury is covered by the Federal
Employees’ Compensation Act,4 the test is whether, under all the circumstances, a causal
relationship exists between the employment itself, or the conditions under which it is required to
be performed and the resultant injury.5
The Board has also recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Rather such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.6 Due primarily to the myriad of factual situations presented by individual cases over
the years, certain exceptions to the general rule have developed where the hazards of travel may
fairly be considered a hazard of employment. Exceptions to the general coming and going rule
have been recognized, which are dependent upon the relative facts to each claim: (1) where the
employment requires the employee to travel on the highways; (2) where the employer contracts
to and does furnish transportation to and from work; (3) where the employee is subject to
emergency calls, as in the case of firemen; (4) where the employee uses the highway to do
something incidental to his or her employment with the knowledge and approval of the
employer; and (5) where the employee is required to travel during a curfew established by local,
municipal, county or state authorities because of civil disturbances or other reasons.7 The
Office’s procedure manual further indicates:
“Where the Employment Requires the Employee to Travel. This situation will not
occur in the case of an employee having a fixed place of employment unless on an
errand or special mission. It usually involves an employee who performs all or
most of the work away from the industrial premises, such as a chauffeur, truck
2

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

3

George E. Franks, 52 ECAB 474 (2001).

4

5 U.S.C. §§ 8101-8193.

5

Mark Love, 52 ECAB 490 (2001).

6

See Phyllis A. Sjoberg, 57 ECAB 409 (2006).

7

Melvin Silver, 45 ECAB 677 (1994); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of
Duty, Chapter 2.804.6(a)(1) (August 1992).

3

driver, or messenger. In cases of this type, the official superior should be
requested to submit a supplemental statement fully describing the employee’s
assigned duties and showing how and in what manner the work required the
employee to travel, whether on the highway or by public transportation. In injury
cases a similar statement should be obtained from the injured employee.”8
It is a well-established principle that where the employee as part of his or her job is
required to bring along his or her own car, truck or motorcycle for use during the working day,
the trip to and from work is by that fact alone embraced within the course of employment.9
ANALYSIS -- ISSUE 1
The Board finds that appellant did not sustain an injury in the performance of duty on
January 22, 2008. As noted, where an employee is required to use his or her own vehicle as part
of his or her job during the working day, the trip to and from work is by that fact alone embraced
within the course of employment.10 Accordingly, an injury sustained while traveling to and from
work may be within the performance of duty for that employee.11 Because rural carriers may use
their own transportation to deliver their routes, which is a benefit to the employer, they may be
deemed to be in the performance of their duties when they are driving their vehicles to and from
their route, when they are required by the employing establishment to provide their own
transportation.12 In this case, appellant stated that she would not know until she arrived at the
employing establishment whether she would have to use her automobile or an employing
establishment vehicle to deliver her route. She was not driving or inside her vehicle at the time
of injury. Appellant sustained an ankle injury while walking from her house to her vehicle.
Regardless of whether she used her private vehicle in the course of her employment, the act of
leaving one’s residence to get to work would remain the same and is an activity that all
employees engage in. The extension of coverage to rural carriers would not apply until the point
that she entered the vehicle to drive to work.13 Although appellant had previously entered her
vehicle to warm it up, she left the vehicle to get “her belongings” and it was upon her return to
the vehicle, that she slipped and fell, injuring her ankle. She had not reentered the vehicle and
had not begun her drive to work. While appellant contends on appeal that the Office did not
properly apply case precedent, the Board finds that appellant sustained her ankle injury in front
of her residence prior to entering her vehicle. She did not sustain an injury in the performance of
duty as she was not yet engaged in her master’s business or otherwise fulfilling the duties of her
employment or something incidental thereto.
8

Federal (FECA) Procedure Manual, id. at Chapter 2.804.6(b).

9

A. Larson, The Law of Workers’ Compensation § 15.05 (2000); J.E., 59 ECAB ____ (Docket No. 07-814,
issued October 2, 2007).
10

J.E., id.

11

Kathryn A. Tuel-Gillem, 52 ECAB 451 (2001).

12

Supra note 8.

13

Kathryn A. Tuel-Gillem, supra note 11.

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.14 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).15 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.16 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.17
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.18 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.19 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.20
ANALYSIS -- ISSUE 2
On reconsideration, counsel argued that appellant was performing a required safety check
before entering the vehicle when she slipped and fell on January 22, 2008. Appellant had not
previously raised this argument before the Office. It pertains to whether she was engaged in a
matter incidental to her employment as a rural carrier. The Office noted in its July 15, 2008
decision that a rural carrier was required to maintain his or her vehicle in order to serve the route
safely and efficiently. Appellant has advanced a relevant legal argument not previously
considered by the Office, and is consequently entitled to a review of the merits of her claim
based on the second above-noted requirements under section 10.606(b)(2).21
14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.608(a).

16

Id. at § 10.608(b)(1) and (2).

17

Id. at § 10.608(b).

18

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

19

Ronald A. Eldridge, 53 ECAB 218 (2001).

20

Vincent Holmes, 53 ECAB 468 (2002).

21

20 C.F.R. § 10.606(b)(2).

5

With respect to the third above-noted requirement under section 10.606(b)(2), with her
reconsideration request, appellant submitted copies of employing establishment policies and
publications regarding safety checks and rural carriers’ duties and responsibilities. This evidence
is relevant to the argument raised on reconsideration. As appellant advanced a relevant legal
argument not previously considered and submitted relevant evidence in that regard, the Office
improperly denied her request for further review of the merits. The case will be remanded to the
Office to conduct further merit review. Following this and such other development as deemed
necessary, the Office shall issue a merit decision on appellant’s claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on January 22, 2008. The Board finds, however,
that the Office erred in refusing to reopen her case for further consideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 15, 2008 is affirmed. The decision dated May 4, 2009 is
vacated and the case remanded to the Office for proceedings consistent with this decision of the
Board.
Issued: August 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Raymond, MT, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1020
Issued: July 9, 2015

Case Submitted on the Record

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

JURISDICTION
On March 31, 2014 appellant, through counsel, timely appealed a March 4, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for temporary total
disability during the period September 18, 2004 through May 1, 2012.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its March 4, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 63-year-old former customs and border protection (CBP) officer, has an
accepted claim for permanent aggravation of right hip osteoarthritis, which arose on
June 11, 2003. At the time of his June 2003 injury, he was temporarily stationed at the Federal
Law Enforcement Training Center (FLETC) in Glynn County, GA. Appellant was participating
in a role-playing exercise when another student-trainee tackled him and landed on his right upper
leg. He completed the remaining seven weeks of his scheduled training at FLETC, and in early
August 2003 he returned home to Montana to begin work as a CBP officer.
Dr. Gregory M. Behm, a Board-certified orthopedic surgeon, examined appellant on
July 9, 2004 and diagnosed right hip osteoarthritis and right knee pain.3 He noted that appellant
was injured in a training exercise more than a year prior. Dr. Behm imposed work restrictions
that included “no running, no ladders, [and] no climbing.”
Appellant indicated that he provided the employing establishment a copy of Dr. Behm’s
July 9, 2004 work restrictions, which was placed in his personnel file. Frank Bailey, the port
director, reportedly told appellant not to do the activities (running, climbing, and ladders) that
Dr. Behm noted. Appellant’s specific law enforcement duties did not change on or after
July 9, 2004. He indicated that his assigned work was no different than any other CBP officer at
Port Raymond, MT.
Appellant last worked for the employing establishment on August 25, 2004, but he
remained in pay status through September 17, 2004. A “separation clearance certification” form
dated August 25, 2004, identified his reason for leaving as “leg pains [and] headaches” and
“resignation.” The noted separation date was September 18, 2004. Both appellant and his thensupervisor, Jeff McCall, signed the separation clearance form. Appellant wrote “leg pains and
headaches” as his reason for leaving and then signed the form and gave it to Mr. McCall, who
later added “resignation.” At the time of the August 25, 2004 work stoppage, he was reportedly
unaware of his options with respect to workers’ compensation. OWCP had not yet formally
adjudicated appellant’s claim, which was ultimately accepted on February 27, 2008.
In a series of statements, appellant represented that, between March and July 2004, there
were several instances at work when his right leg gave way such that he fell or almost fell. He
also identified a July 2004 incident when his right hip locked up while squatting and he was
unable to move for a few minutes. Based on his previous firearms training, appellant was
concerned that his inability to squat and seek cover would leave him vulnerable in a gunfight.
He also indicated that he needed to be able to run in order to protect himself. Appellant
expressed discomfort about carrying a firearm under the circumstances, and the Port Director
reportedly told appellant that if he could not carry a firearm, there was no job for him at CBP.
He explained that he resigned in August 2004 because he could no longer protect himself and his
fellow officers due to his right hip/leg condition.4 The latest schedule had appellant working the
3

A July 9, 2004 right hip x-ray revealed severe degenerative arthritis. There was also x-ray evidence of early
degenerative changes in appellant’s right knee.
4

Appellant also suffered from migraine headaches, which predated his June 11, 2003 employment injury.

2

day shift at Port of Raymond for the next two weeks or more5 and because of his hip and leg
condition, appellant felt unable to handle the longer, busier hours on day shift at Port of
Raymond.
In a September 3, 2004 report, Dr. Behm noted that appellant recently quit his job
because his employing establishment had been asking him to do things that appellant could not
do with his hip. He diagnosed right hip osteoarthritis. Dr. Behm imposed a 40-pound lifting
restriction, and advised appellant against working at heights. He restricted appellant from
squatting and running, and limited appellant’s driving. Dr. Behm further indicated that desk
work was the best option. He explained that as long as appellant could control his pain with
activity modification, no other intervention was necessary.
When Dr. Behm saw appellant on February 4, 2005, he recommended right total hip
replacement. He noted that appellant was unable to perform his previous job, and was also
precluded from performing manual labor. Additionally, Dr. Behm indicated that just sitting was
very uncomfortable for appellant. In fact, sitting was one of his most uncomfortable activities.
Dr. Thomas R. Templeton, a Board-certified family practitioner, examined appellant on
May 9, 2005, and diagnosed severe right hip osteoarthritis. He advised that appellant could
probably work part time, four hours a day, and should not do any heavy lifting. Dr. Templeton
also noted that appellant should probably not do any squatting, avoid ladders, and limit stairs.
Additionally, he noted that they discussed hip replacement surgery, but appellant was not
interested at the time.
In October 2006, the Social Security Administration (SSA) awarded appellant disability
benefits due to severe hip joint osteoarthritis and migraine headaches. It determined that he was
disabled as of September 18, 2004.
On June 11, 2009 OWCP granted a schedule award for 50 percent impairment of the right
lower extremity. The award covered a period 144 weeks from March 13, 2009 through
December 15, 2011.
Following the expiration of his schedule award, appellant filed a claim for wage-loss
compensation (Form CA-7) for the period September 18, 2004 through May 1, 2012.
On May 18, 2012 OWCP acknowledged receipt of appellant’s Form CA-7, and advised
him that because he had voluntarily resigned effective September 18, 2014, he was not eligible
for wage-loss compensation.
Dr. Dale A. Adishian, a Board-certified orthopedic surgeon, examined appellant on
March 16, 2012, and submitted an attending physician’s report (Form CA-20). He had treated
appellant dating back at least to April 2008, and previously submitted a right lower extremity

5

Appellant usually divided his time between working evenings and occasional days at Port of Raymond and
working the day shift at Port of Whitetail. He would drive two and a half hours to and from Whitetail, MT each day
and work approximately five and a half hours per shift at what he described as the “slower” Port of Whitetail.

3

impairment rating, which formed the basis of OWCP’s June 11, 2009 schedule award.6 In his
March 16, 2012 report, Dr. Adishian diagnosed severe right hip osteoarthritis, which he
attributed to a June 11, 2003 physical training injury. He also noted that appellant had no right
hip problems prior to the injury, which accelerated his symptoms. Dr. Adishian noted that
appellant was currently receiving nonoperative treatment for his hip arthritis, although he was
considering right total hip arthroplasty. Additionally, he indicated that appellant had been totally
disabled since September 18, 2004. Dr. Adishian prescribed a walking cane and advised that
appellant was unable to perform/resume either regular work or light work.
In an August 15, 2012 report, Dr. Cory E. Rathgeber, a Board-certified family
practitioner and primary care physician, diagnosed headache and severe right hip osteoarthritis.
He began treating appellant in April 2007. Dr. Rathgeber noted appellant had a severe right hip
traumatic injury nine years ago, and his hip continued to be a major health issue that impaired
appellant’s ability to do any physical activity. He further indicated that, since he began treating
appellant in April 2007, appellant had been disabled from performing any type of physical
work.7 Dr. Rathgeber also explained that appellant’s headaches, while a limiting factor, did not
impair his ability to work.
When Dr. Rathgeber saw appellant for a follow-up examination on February 27, 2013, he
noted appellant was unable to perform the duties of a border patrol agent. He explained that
appellant could not run or even walk quickly, and that he used a cane to walk. Dr. Rathgeber
also noted that weight bearing caused constant pain. Additionally, appellant could not climb,
squat, or kneel. Dr. Rathgeber further noted that sitting aggravated appellant’s right hip pain.
Driving was painful and appellant could not sit comfortably in a chair. Also, appellant had a
severe (four centimeters) leg length discrepancy secondary to his severe osteoarthritis.
OWCP prepared a statement of accepted facts (SOAF) and referred appellant to
Dr. Lawrence G. Splitter, Board-certified in occupational medicine, for a second opinion

6

In an April 21, 2008 report, Dr. Adishian noted that appellant would likely require right total hip arthroplasty.
At the time, he advised appellant to avoid impact activity such as running, avoid kneeling, and squatting avoid
lifting or bending. Dr. Adishian recommended that appellant use a cane, and use shoes with heel cushions. He
reported “work restrictions to sedentary activity with a minimum of physical demands since [September 18, 2004].”
7

In a February 7, 2008 report, Dr. Rathgeber indicated that appellant was incapable of doing any job requiring
sustained standing or walking. His March 10, 2008 treatment notes indicated appellant was “totally disabled” due to
his severe right hip arthritic condition. In a March 13, 2008 letter to OWCP, Dr. Rathgeber noted that, since
April 2007, appellant had been completely disabled from performing any type of work requiring walking or standing
for any length of time. Currently, his severe right hip degenerative joint disease rendered him incapable of
performing any physical activity requiring any type of sustained activity while on his feet. Dr. Rathgeber’s July 1,
2009 treatment notes indicated that appellant was unable to perform his former job as a border control agent. A
September 30, 2009 letter to OWCP similarly noted that appellant was unable to return to his former employment as
a border crossing agent, and without hip replacement surgery he would never be able to resume his former duties.
Dr. Rathgeber stated that appellant was basically limited from doing any type of work that required any degree of
walking or standing. He reiterated those same findings in an October 6, 2010 report to OWCP. Dr. Rathgeber also
indicated in his similarly dated treatment notes that appellant was not prepared to consider hip replacement at the
time.

4

evaluation.8 It also prepared a list of questions (seven) that Dr. Splitter was expected to answer
based on his examination and review of the pertinent medical records.
In a June 3, 2013 report, Dr. Splitter diagnosed severe osteoarthritis of the right hip.9 He
advised that the June 11, 2003 incident/injury permanently aggravated appellant’s preexisting
right hip osteoarthritis. Dr. Splitter further advised that absent right total hip arthroplasty,
appellant had reached maximum medical improvement. He also noted that appellant was
incapable of performing his date-of-injury position. Dr. Splitter explained that loss of right hip
range of motion and some strength loss secondary to pain from osteoarthritis precluded appellant
from running, climbing, squatting, and crawling. Although appellant could not return to his
former duties, he recommended “sedentary physical demand level” type work. Dr. Splitter’s
June 25, 2013, work capacity evaluation (Form OWCP-5c), indicated that appellant could work
eight hours with restrictions, which included walking and standing, half hour to one hour.
Additionally, he precluded squatting, kneeling, climbing, and operating a motor vehicle at work.
These work restrictions were noted to be permanent.
Dr. Rathgeber’s October 2, 2013 treatment notes included restrictions with respect to
driving and sitting at a desk. He indicated that appellant experienced severe hip pain getting in
and out of vehicle. Dr. Rathgeber also noted that appellant could not comfortably sit at a desk
for eight hours a day. He explained that appellant’s right hip only flexed to 40 degrees, and
when seated he needed to stretch his right leg out. As such, this “would not be conducive to a
desk work environment.” Lastly, Dr. Rathgeber noted that because of appellant’s severe right
hip arthritis, he required a cane to offload his right leg, which was necessary for all ambulation.
In a March 4, 2014 decision, OWCP denied wage-loss compensation for the claimed
period. It indicated that while appellant was unable to return to his date-of-injury job, the
medical evidence did not support total disability from all employment. OWCP found that
Dr. Splitter’s June 3, 2013 second opinion evaluation represented the weight of the medical
evidence. As such, appellant could perform full-time, sedentary work. OWCP also found that
the employing establishment had been “accommodating [appellant’s] work restrictions,” and that
he resigned from federal employment due to fear of future injury. In conclusion, it stated that
appellant “abandoned employment.” Consequently, OWCP denied appellant’s claim for wageloss compensation beginning September 18, 2004.

8

The April 15, 2013 SOAF included a two-paragraph description of the various requirements of appellant’s dateof-injury job. This abridged description appears to have been derived from a 14-page CBP officer summary of
medical standards and physical requirements.
9

The first four pages of Dr. Splitter’s 11-page report are not included in the record.

5

LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of his or her claim,
including that the medical condition for which compensation claimed is causally related to the
employment injury.10 Compensation for wage loss due to disability is available for periods
during which an employee’s work-related medical condition prevents him from earning the
wages earned before the work-related injury.11 The claimant must submit medical evidence
showing that the condition claimed is disabling.12 The evidence submitted must be reliable,
probative, and substantial.13 The physician’s opinion must be based on the facts of the case and
the complete medical background of the employee, must be one of reasonable medical certainty,
and must include objective findings in support of its conclusions.14 Subjective complaints of
pain are not sufficient, in and of themselves, to support payment of continuing compensation.15
Likewise, medical limitations based solely on the fear of a possible future injury are also
insufficient to support payment of continuing compensation.16 The determination of an
employee’s rights and/or remedies under other statutory authority, such as SSA disability, does
not establish entitlement to benefits under FECA.17
ANALYSIS
Appellant claims entitlement to wage-loss compensation for the period September 18,
2004 through May 1, 2012. OWCP denied wage-loss compensation because the employing
establishment had been “accommodating [appellant’s] work restrictions” prior to his resignation,
and thus, he “abandoned employment.” It further found that based on Dr. Splitter’s June 3, 2013
report, appellant was capable of performing full-time sedentary work.
The Board finds that the case is not in posture for decision because OWCP has yet to
fully develop the factual and medical record. Proceedings under FECA are not adversarial in
10

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed
condition and the implicated employment factors must be based on a complete factual and medical background.
Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms
of a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
11

Id. at § 10.500(a).

12

Id. at § 10.115(f).

13

Id. at § 10.115.

14

Id. at § 10.501(a)(2).

15

Id.

16

Id.

17

J.F., 59 ECAB 331, 339 (2008); H.S., 58 ECAB 554, 560 n.22 (2007); Dianna L. Smith, 56 ECAB 524,
527 (2005).

6

nature and OWCP is not a disinterested arbiter. The claimant has the burden to establish
entitlement to compensation. However, OWCP shares responsibility in the development of the
evidence to see that justice is done.18
In this instance, OWCP did not adequately develop the record with respect to appellant’s
job duties and the circumstances giving rise to his August 2004 work stoppage. Also, there is
scan information regarding what, if any, work restrictions were in place prior to and at the time
of appellant’s August 25, 2004 work stoppage.
An employee is not entitled to compensation for any wage-loss claimed on a Form CA-7
to the extent: (1) evidence contemporaneous with the claimed period establishes that an
employee had medical work restrictions in place; (2) that light-duty within those work
restrictions was available; and (3) the employee was previously notified in writing that such duty
was available.19
According to appellant, he provided the employing establishment a copy of Dr. Behm’s
July 9, 2004 restrictions, which was placed in his personnel file. The work restrictions included:
“no running, no ladders, [and] no climbing.” Mr. Bailey, the Port Director, reportedly told
appellant not to perform these actions. However, appellant claimed that his assigned duties did
not change on or after July 9, 2004. His work was reportedly no different than any other CBP
officer at Port Raymond.
On September 24, 2013 OWCP wrote to the employing establishment inquiring whether
there was a job that could have been offered to appellant within his medical restrictions had he
not “retired” on September 18, 2014. It also requested “employment specifics.” However, there
is no indication within the record that the employing establishment responded. The employing
establishment is responsible for submitting to OWCP all relevant and probative factual and
medical evidence in its possession, or which it may acquire through investigation or other
means.20 It cannot withhold information to its employee’s detriment.21
Once OWCP undertakes development of the record, it must do a complete job in
procuring evidence that will resolve the relevant issues in the case.22 As noted, OWCP referred
appellant to Dr. Splitter to address appellant’s claimed disability dating back to August 2004.
However, Dr. Splitter did not specifically comment on appellant’s disability status beginning
August 25, 2004.23 Additionally, the copy of his report provided to OWCP appears to be
18

William J. Cantrell, 34 ECAB 1223 (1983).

19

20 C.F.R. § 10.500(a).

20

Id. at § 10.118.

21

As evidence appearing in the employing establishments files is not generally available to claimants, the
employing establishment must assemble and submit such evidence. Federal (FECA) Procedure Manual, Part 2 -Claims, Initial Development of Claims, Chapter 2.800.4(b) (June 2011).
22

Richard F. Williams, 55 ECAB 343, 346 (2004).

23

In fact, the February 12, 2013 questions OWCP provided Dr. Splitter did not address appellant’s work status
during the claimed period September 18, 2004 through May 1, 2012.

7

missing page 1 through 5 (of 14 pages). Lastly, the Board notes that Dr. Splitter did not
adequately explain how appellant was capable of performing sedentary work on a full-time basis.
Because the record lacks sufficient evidence for the Board to render an informed
decision, the case shall be remanded to OWCP for further development. On remand, OWCP
shall advise the employing establishment of its responsibility for submitting all relevant and
probative factual and medical evidence in its possession. Additionally, clarification is necessary
with respect to Dr. Splitter’s findings.24 After OWCP has developed the record consistent with
the above-noted directives, it shall issue a de novo decision regarding appellant’s claim for wageloss compensation.
CONCLUSION
Appellant’s claim for wage-loss compensation for the period September 18, 2004 through
May 1, 2012 is not in posture for decision.25

24

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2) (June 2015).
25

Wage-loss compensation for temporary total disability may not be paid concurrently with a schedule award for
the same work-related injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.4a(3) (February 2013). Appellant has already received a right lower
extremity schedule award for the period March 13, 2009 through December 15, 2011. Accordingly, he is not
entitled to wage-loss compensation for the same period.

8

ORDER
IT IS HEREBY ORDERED THAT the March 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: July 9, 2015
Washington, DC

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

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

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

9