United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY,
UNITED STATES NAVAL SHIP COMET,
FPO, San Francisco, CA, Employer
__________________________________________

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

Docket No. 20-0566
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a November 22, 2019 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 OWCP properly denied appellant’s request for authorization of home
equipment and modifications.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 22, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 6, 1968 appellant, then a 27-year-old seaman, filed a notice of injury or
occupational disease claim (Form CA-1) alleging that on January 5, 1968 he sustained a broken
left arm and a fractured left patella as a result of a motorcycle accident in Vietnam while in the
performance of duty. OWCP accepted the claim for skull fracture with convulsive disorder, left
wrist fracture, left patella open fracture, left bicep laceration, right hip fracture, and traumatic right
hip osteoarthritis. 3 The record reflects that OWCP paid appellant wage-loss compensation on the
periodic rolls as of June 16, 2002. On August 8, 2013 appellant underwent OWCP-authorized
total right hip replacement surgery.
In an August 8, 2019 letter, appellant requested that OWCP grant authorization for a
handicap bathroom extension, a new chair lift with a table, a ramp to access the rear of his property,
widen internal doors, and level and resurface areas around his house to facilitate his use of a
wheelchair, as recommended by his occupational therapist in an accompanyin g June 6, 2019
medical report.
Appellant also submitted an undated quote and quotes dated January 13, 18, June 16, and
August 8, 2019 for the recommended home modifications.
In an August 14, 2019 development letter, OWCP advised appellant that it required
periodic medical reports in cases in which compensation was being paid for prolonged disability.
It requested that he submit an opinion from his physician regarding the status of his accepted
condition, his ability to return to work, and his current medical treatment plan. OWCP afforded
appellant 30 days to respond.
A memorandum of telephone call (Form CA-110) dated September 4, 2019 reflects that
OWCP requested that appellant submit a report from his treating physician explaining the necessity
of an outdoor wheelchair ramp since he was not currently using a wheelchair.
OWCP received medical evidence from Dr. Aidan F. Lynch, an attending orthopedic
surgeon. In an August 27, 2019 attending physician’s report (Form CA-20), Dr. Lynch noted
appellant’s accepted conditions. He advised that appellant sustained multiple injuries and stiff
lower limbs that were caused or aggravated by the January 5, 1968 employment injury. Dr. Lynch
indicated that appellant was totally disabled from work as of May 1, 1986 and that he was
becoming increasingly disabled.
In a September 4, 2019 narrative report, Dr. Lynch noted appellant’s history of injury on
January 5, 1968. He also noted his current complaints of persistent shoulder discomfort.
Dr. Lynch observed that appellant’s ability to remain active was gradually deteriorating, he walked
with a shufﬂing gait and used a stick to mobilize, and his ability to walk was becoming more
restricted especially on rough ground or when attempting to climb steps or stairs. He further
observed that appellant was physically unable to work and he had to drive an automatic car.
Dr. Lynch reported findings on physical examination. He indicated that in 2013 appellant
3

By decision dated January 14, 1972, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the left arm, 55 percent permanent impairment of the left leg, a nd 12 percent permanent impairment of
the right leg.

2

underwent total right hip replacement surgery to convert a fused hip to a hip arthroplasty.
Dr. Lynch indicated that the operation provided him with improved hip mobility, but he still had
a signiﬁcant degree of stiffness in his hip in view of his previous arthrodesis. He advised that no
further improvement was anticipated regarding appellant’s hip function. Additionally, Dr. Lynch
advised that appellant had arthrodesis to his left knee, which was in a ﬁxed position, discomfort in
his back, which appeared to be associated with stiffness in both his right hip and left knee, and
restricted movement of both shoulders. He related that, in light of appellant’s injury, he was
becoming increasingly disabled in his ability to remain active. Dr. Lynch was also no longer able
to climb steps or stairs. He determined that appellant was 100 percent permanently disabled from
work. Dr. Lynch related that appellant was also becoming increasingly disabled from performing
activities of daily living (ADLs). He advised that his house required indoor modifications to
provide access to his bedroom and toilet. Dr. Lynch further advised that outdoor modifications,
which included a ramp to gain entrance into his house were required as appellant had to avoid
using steps or stairs and likely required a wheelchair in the future.
Dr. Lynch, in an October 1, 2019 addendum letter, advised that appellant had restricted
mobility as a result of his multiple injuries, which required indoor and outdoor modifications to
his house. He requested that OWCP grant authorization for such modifications. Dr. Lynch noted
that the ground at appellant’s house was quite rough and he was unable to walk on uneven surfaces.
As such, he maintained that a solid surface, either concrete or tarmac, was required. Dr. Lynch
also maintained that ramps instead of steps would be required at the entrance to appellant’s house.
He indicated that the front door and indoors of the house needed to be widened to allow wheelchair
access in the future. Dr. Lynch again opined that appellant remained permanently totally disabled
from work.
OWCP received additional estimates for a handicap bathroom and other home
modifications, including a wheelchair ramp with a platform and widened front and rear doorways.
By decision dated October 11, 2019, OWCP granted authorization for modification of
appellant’s existing bathroom and other indoor home modifications.
In an October 25, 2019 decision, OWCP denied authorization for a wheelchair ramp and
other outdoor home modifications, finding that the medical evidence of record was insufficient to
establish that the requested equipment and modifications were medically necessary to address the
effects of the January 5, 1968 employment injury.
By decision dated November 22, 2019, OWCP reissued the October 25, 2019 decision.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
4

5 U.S.C. § 8103; see R.P., Docket No. 17-0428 (issued April 19, 2018); Thomas W. Stevens, 50 ECAB
288 (1999).

3

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 5
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services, with the only limitation on OWCP’s authority being that of reasonableness.6
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evid ence could be construed so as to
produce a contrary factual conclusion.7
The Board has previously noted that OWCP’s procedures provide for housing
modifications under limited circumstances. 8 To be eligible for housing modifications, the claimant
must be severely restricted in terms of mobility, functionality, and independence in normal living
functions, on a permanent basis, due to the work-related injury. Examples are impairments that
require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, ca ne, or other
self-help devices. Such medical conditions include quadriplegia, paraplegia, amputation, total loss
of use of limbs, blindness, and profound deafness bilaterally.9
Before considering the technicalities of housing modification proposals, a determination
must be made on the medical necessity of the requested modification. There are several aspects
to consider when reviewing the evidence of record:
“(1) Does the level of impairment rise to the level delineated in the eligibility
section above?
“(2) Does the medical evidence support that the claimant has restrictions or
physical limitations which necessitate the modification?
“(3) Are these restrictions caused by the accepted work-related condition?
“(4) Does the physician provide detailed findings and rationale for the opinion that
the claimant’s work injury has caused restrictions which necessitate the requested

5

See R.P., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004); Zane H. Cassell, 32 ECAB 1537 (1981).

6
See B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990)
(abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or administrative actions which are contrary to both logic, and probable deductions from established facts).
7

D.S., Docket No. 18-0353 (issued May 18, 2020); P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59
ECAB 471 (2008).
8

R.K., Docket No. 14-1238 (issued September 23, 2014).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter 2.1800.3
(October 2009).

4

modification? This should come from a physician who is a recognized authority in
the appropriate medical specialty.”10
ANALYSIS
The Board finds that OWCP properly appellant’s request for authorization of home
equipment and modifications.
OWCP accepted that on January 5, 1968 appellant sustained a work-related skull fracture
with convulsive disorder, left wrist fracture, left patella open fracture, left bicep laceration, right
hip fracture, and traumatic right hip osteoarthritis. Consequently, it granted authorization for
appellant’s handicap bathroom and other indoor home modifications, but denied authorization for
a wheelchair ramp and other outdoor home modifications.
In a September 4, 2019 report and October 1, 2019 addendum letter, Dr. Lynch requested
that OWCP authorize modification to the outside of appellant’s existing home, noting that he
would benefit from handicap accessible equipment. He noted that appellant’s current and
worsening ability to walk was restricted especially when he walked on rough or uneven ground
and attempted to climb steps or stairs. Dr. Lynch also noted that he had increasing difficulty
performing ADLs. He maintained that appellant would “likely” needed a wheelchair ramp to enter
his house because he should avoid using steps or stairs. As such, Dr. Lynch also related that the
front door and indoors of appellant’s house required widening to allow for the use of a wheelchair
in the future. Additionally, he indicated that a solid surface, such as concrete or tarmac, was
required outside appellant’s house due to his inability to walk on uneven surfaces. Dr. Lynch
found that appellant’s permanent total disability from work resulted from the January 5, 1968
employment injury, which required total right hip replacement surgery in 2013.
To establish the medical necessity of the requested modification, Dr. Lynch was required
to explain how appellant’s present inability to negotiate steps, requiring a wheelchair ramp, and to
walk on uneven ground, requiring a solid surface, were caused by the accepted employment injury
that occurred 51 years prior. The Board finds that Dr. Lynch failed to provide a rationalized
medical opinion explaining why the requested the wheelchair ramp and other home modifications
were medically necessary.11 Dr. Lynch did not provide the necessary medical explanation as to
how the wheelchair ramp and other outdoor home modifications would cure, reduce the period of
disability, or aid in lessening the amount of monthly compensation. 12
As noted, the only limitation on OWCP’s authority is approving or disapproving services
under FECA is one of reasonableness. 13 As the medical evidence submitted provided insufficient
10

Id. at Chapter 2.1800.4.

11

Supra note 4; see also O.M., Docket No. 20-0640 (issued April 19, 2021); D.K., Docket No. 20-0002 (issued
August 25, 2020); G.B., Docket No. 18-1444 (issued March 25, 2019); M.B., Docket No. 17-1679 (issued February 8,
2018); R.K., Docket No. 14-1238 (issued September 23, 2014) (medical conclusions unsupported by rationale are of
diminished probative value).
12

Supra note 3.

13

Supra note 5.

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explanation of medical necessity, the Board finds that OWCP properly denied appellant’s requests
under section 8103 of FECA.14
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of home
equipment and modifications.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

14

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
W.G. (BILL HEFNER) VETERANS
ADMINISTRATION MEDICAL CENTER,
Salisbury, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0738
Issued: October 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 12, 2019 appellant filed a timely appeal from a November 26, 2018 and
January 8, 2019 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 19-0738.
On July 14, 2018 appellant, then a 54-year-old retired nursing assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed ruptured discs and nerve
damage in her neck as a result of factors of her federal employment including lifting, pulling, and
pushing patients. She first became aware of her condition and its relationship to her federal
employment on January 18, 2006. Appellant explained that she reported her condition in 2006,
but that “other claims were being denied” and she “didn’t think it would be approved,” so a claim
was never filed. 1 On the reverse side of the claim form, a supervisor noted that appellant first
received medical care in September 2006 and retired on April 11, 2007.

1

The record demonstrates that appellant filed at least one prior claim with the same date of injury of
January 18, 2006, but that file is not presently before the Board and the contents of that claim file are not available for
review.

By decision dated August 15, 2018, OWCP denied appellant’s occupational disease claim
finding that although she had submitted a timely claim and that the employment factors occurred
as described, she had not submitted medical evidence containing a medical diagnosis in connection
with her federal employment duties. Appellant requested reconsideration on September 20, 2018.
By decision dated November 26, 2018, OWCP denied modification of the August 15, 2018
decision. On December 24, 2018 appellant again requested reconsideration. By decision dated
January 8, 2019, OWCP denied reconsideration without reviewing the merits of her claim.
The Board has duly considered the matter and finds that this case is not in posture for
decision.
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim. 2 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability or
death must be filed within three years after the injury or death. 3 In a case of occupational disease,
the time for filing a claim begins to run when the employee first becomes aware, or reasonably
should have been aware, of a possible relationship between his or her condition and federal
employment. Such awareness is competent to start the limitation period even though the employee
does not know the precise nature of the impairment or whether the ultimate result of such affect
would be temporary or permanent. 4 Section 8122(b) provides that, in latent disability cases, the
time limitation does not begin to run until the claimant is aware, or by the exercise of reasonable
diligence should have been aware, of the causal relationship between the employment and the
compensable disability. 5 The Board has emphasized that an employee need only be aware of a
possible relationship between his or her condition and his or her employment to commence the
running of the applicable statute of limitations,6 and that, if an employee continues to be exposed
to injurious working conditions after such awareness, the time limitation begins to run on the last
date of this exposure. 7 Even if a claim is not filed within the three-year period of limitation, it
would still be regarded as timely under section 8122(a)(1) if the immediate superior had actual
knowledge of his or her alleged employment-related injury within 30 days or written notice of the
injury was provided within 30 days pursuant to section 8119. 8 The knowledge must be such as to
put the immediate superior reasonably on notice of an on-the-job injury or death.9 It is the

2

R.T., Docket No. 18-1590 (issued February 15, 2019); see Charles W. Bishop, 6 ECAB 571 (1954).

3

Id.

4

See R.T., supra note 2.

5

5 U.S.C. § 8122(b).

6

R.T., supra note 2.

7

D.R., Docket No. 18-1754 (issued April 4, 2019).

8

5 U.S.C. §§ 8122(a)(1), 8122(a)(2).

9

D.R., supra note 7.

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employee’s burden of proof to establish that a claim is timely filed. 10 Furthermore, OWCP’s
procedures contemplate that duplicate cases should not be created and that development should
not occur under the duplicate case. 11
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make proper findings of fact. 12 Its procedure further
specifies that a final decision of OWCP should be clear and detailed so that the reader understands
the reasons for the disallowance of the benefit. 13 These requirements are supported by Board
precedent.14
The Board finds that OWCP’s November 26, 2018 decision, affirming its prior August 15,
2018 decision, failed to make adequate findings on the issues presented. The November 26, 2018
decision, affirming the prior August 15, 2018 decision, treated appellant’s claim as having been
timely filed, but did not provide regarding basis for this finding, despite appellant’s date of filing,
July 14, 2018, being over three years after appellant’s last exposure to employment factors on
April 11, 2007.15 The record is unclear as to whether appellant’s immediate superior had actual
knowledge of her alleged employment-related injury within 30 days or whether written notice of
the injury was provided within 30 days. 16 Moreover, the record is unclear as to whether the present
claim is a duplicate of appellant’s prior claims with a date of injury of January 18, 2006.17
The Board therefore finds that the case must be remanded fora decision, which includes
findings of fact and a clear and precise statement regarding why OWCP found that appellant’s
claim was timely filed and whether this claim constitutes a duplicate case. Following this and
other such further development as OWCP deems necessary, it shall issue an appropriate decision. 18

10

A.S., Docket No. 18-1094 (issued February 7, 2019).

11

See Federal (FECA) Procedure Manual, Part 1 -- Mail and Files, Duplicate Cases, Chapter 1.400.7
(February 2000); see also T.M., Docket No. 13-1310 (issued January 2, 2014); W.M., Docket No. 09-1609 (issued
April 5, 2010).
12

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons.
13

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

14

See James D. Boller, Jr., 12 ECAB 45, 46 (1960); see also J.N., Docket No. 17-1408 (issued December 11,
2017); R.B., Docket No. 16-1696 (issued September 7, 2017).
15

See D.S., Docket No. 18-0208 (issued May 4, 2018); J.N., id.

16

See supra note 8.

17

See M.S., Docket No. 13-1024 (issued January 14, 2014).

18

Given the disposition of this order on the preliminary issue of timeliness, the issue of whether OWCP properly
denied appellant’s request for reconsideration is moot. See P.L., Docket No. 16-0631 (issued August 9, 2016); D.A.,
Docket No. 14-0546 (issued October 6, 2014); L.G., Docket No. 13-1950 (issued January 28, 2014).

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IT IS HEREBY ORDERED THAT the January 8, 2019 and November 26, 2018
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further proceedings consistent with this order of the Board.
Issued: October 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Flushing, NY,
Employer
__________________________________________

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

Docket No. 20-0546
Issued: November 19, 2020

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 January 13, 2020 appellant filed a timely appeal from a January 8, 2020 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,214.84 because OWCP had failed to deduct postretirement basic life insurance
(PRBLI) premiums from her wage-loss compensation for the period June 22, 2018 through
October 12, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $250.00
every 28 days from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 23, 1997 appellant, then a 39-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that she injured her low back on that date when lifting a bag while in the
performance of duty. She stopped work on June 24, 1997. OWCP accepted the claim for lumbar
sprain. It subsequently expanded acceptance of the claim to include a herniated lumbar disc and
an aggravation of degeneration of lumbar disc disease. Appellant returned to limited-duty work
on August 9, 1997, but sustained recurrences of disability in August and September 1997. She
stopped work on September 14, 1997 and did not return.3 OWCP paid appellant wage-loss
compensation on the periodic rolls.
OWCP, on November 27, 2007, referred appellant to vocational rehabilitation. By
decision dated December 16, 2008, it reduced her wage-loss compensation effective October 30,
2008 as she had the capacity to perform the constructed positon of data entry clerk. By decision
dated August 14, 2009, an OWCP hearing representative affirmed the December 16, 2008 wageloss capacity determination.4
Appellant appealed to the Board. By decision dated May 21, 2010, the Board reversed
OWCP’s August 14, 2009 decision.5 The Board found that the medical evidence failed to establish
that the position of data entry clerk was within appellant’s physical limitations.
Subsequently, appellant accepted a position as a modified passport call center assistant
with the employing establishment on July 25, 2017. OWCP later accepted that she had sustained
a recurrence of disability in June 2018. It paid appellant using a date-of-recurrence pay rate of
June 19, 2018 at a weekly pay rate of $1,130.23 or a yearly salary of $58,772.00. Earnings
statements from 2018 indicated that she received gross pay of $2,311.23 per pay period at a yearly
salary of $60,092.00.
On October 30, 2019 the Office of Personnel Management (OPM) informed OWCP that
appellant, as a compensationer, was eligible to continued life insurance coverage under the Federal
Group Life Insurance (FEGLI) program. It notified OWCP that she had elected PRBLI with no
reduction. OPM indicated that the effective date of appellant’s postretirement deductions was
2

Docket No. 09-2286 (issued May 21, 2010).

3

By decision dated May 1, 2002, OWCP terminated appellant’s wage-loss compensation effective May 1, 2002
based on its finding that the weight of the evidence, as represented by the impartial medical examiner, established that
her work-related disability had ceased. On November 25, 2002 an OWCP hearing representative vacated the May 1,
2002 decision after finding that there was insufficient evidence that the impartial medical examiner was properly
selected.
4

By decision dated August 18, 2010, OWCP denied appellant’s claim for augmented compensation. By decision
dated February 2, 2011, OWCP’s hearing representative affirmed the August 18, 2010 decision.
5

Supra note 2.

2

June 22, 2018 and that her final base salary was $60,148.00. It enclosed a FEGLI continuation of
life insurance coverage form signed by appellant on September 26, 2019 electing PRBLI with no
reduction.
On November 5, 2019 OWCP notified appellant of its preliminary determination that she
had received an overpayment of compensation in the amount of $2,124.84 because it had failed to
deduct PRBLI premiums from her wage-loss compensation for the period June 22, 2018 through
October 12, 2019. It advised that it should have deduced premiums for PRBLI of $853.80 from
June 22 through December 31, 2018 and $1,260.80 from January 1 through October 12, 2019.
OWCP found that it should use a base salary of $60,148.00 rather than $58,772.00. To correct the
discrepancy, it adjusted the salary by adding $10.24 to find a total overpayment of $2,124.84.
OWCP further informed appellant of its preliminary determination that she was without fault in
the creation of the overpayment. It requested that she complete the enclosed overpayment recovery
questionnaire and submit supporting financial documents. Additionally, OWCP notified appellant
that, within 30 days of the date of the letter, she could request a telephonic conference, a final
decision based on the written evidence, or a prerecoupment hearing.
By decision dated January 8, 2020, OWCP finalized its preliminary determination that
appellant had received an overpayment of wage-loss compensation in the amount of $2,212.84 for
the period June 22, 2018 through October 12, 2019. It found that she was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment, noting that she
had not responded to the preliminary overpayment determination. OWCP found that it would
recover the overpayment by deducting $250.00 every 28 days from appellant’s continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA6 provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.7 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.8
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options.9 The coverage for basic life
insurance is effective unless waived,10 and premiums for basic and optional life coverage are
withheld from the employee’s pay.11 Upon retirement or upon separation from the employing
6

Supra note 1.

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

Id. at § 8702(a).

10

Id. at § 8702(b).

11

Id. at § 8707.

3

establishment or being placed on the periodic FECA compensation rolls, an employee may choose
to continue basic and optional life insurance coverage, in which case the schedule of deductions
made will be used to withhold premiums from his or her annuity or compensation payments.12
Basic insurance coverage shall be continued without cost to an employee who retired or began
receiving compensation on or before December 31, 1989;13 however, the employee is responsible
for payment of premiums for optional life insurance coverage, which is accomplished by
authorizing withholdings from his compensation.14
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).15
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.16 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.17
OWCP’s procedures, regarding PRBLI, provide:
“PRBLI prevents a life insurance benefit reduction at age 65. The default reduction
is a reduction of 75 [percent], but the claimant can elect either ‘No Reduction’ or
‘50 [percent] Reduction.’ Claimants must elect this coverage when separated or
retired form Federal employment. The coverage is effective immediately, and the
12

Id. at § 8706.

13

Id. at § 8707(b)(2).

14

Id. at § 8706(b)(3)(B). See Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that the claimant received
an overpayment of compensation where he elected PRBLI with no reduction and no premiums had been deducted
from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox, 42 ECAB 703 (1991) (the Board
found that an overpayment was created due to no deduction of premiums for optional life insurance for the periods
July 1983 through November 1989).
15

See C.A., Docket No. 18-1284 (issued April 15, 2019); V.H., Docket No. 18-1124 (issued January 16, 2019).

16

5 C.F.R. § 870.504(a)(1).

17

Id. at § 504(b).

4

premiums continue until death. Prior to age 65, the claimant must pay for both BLI
and PRBLI if it has been elected.”18
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.19
ANALYSIS -- ISSUE 1
The Board finds OWCP improperly determined that the overpayment of compensation in
the amount of $2,214.84 because OWCP had failed to deduct PRBLI premiums from appellant’s
wage-loss compensation for the period June 22, 2018 through October 12, 2019.
On October 30, 2019 OPM notified OWCP that appellant had elected PRBLI at no
reduction. It enclosed an election form signed by her on September 26, 2019. Based on this
information, OWCP found that appellant had received an overpayment of compensation as it failed
to deduct premiums for PRBLI from June 22, 2018 through October 12, 2019.
While in compensationer status, appellant is responsible for all insurance premiums,
including for PRBLI at whatever option selected.20 The Board finds, however, that OWCP failed
to adequately support its determination that she received an overpayment of compensation from
June 22, 2018 through October 12, 2019. OPM failed to provide documentation establishing the
date that appellant had elected PRBLI at no reduction. It enclosed an election form signed by her
on September 26, 2019 electing PRBLI with no reduction. The form does not specify the date of
the effective election. The date that appellant signed the election form, September 26, 2019, is
after June 22, 2018, the starting date of the overpayment found by OWCP in this case and date that
OPM indicated that she had elected coverage.
The Board has held that OWCP must document when a claimant elected life insurance
coverage after separation from federal service or retirement in order to establish the fact of
overpayment of compensation.21 In N.J.,22 the Board remanded the case to OWCP for further
development because the evidence was unclear why PRBLI premiums had been deducted as of a
certain date. As OWCP has not factually established that appellant elected PRBLI beginning
June 22, 2018, it has not met its burden of proof to establish that she received an overpayment of

18

Federal (FECA) Procedure Manual, Part 2, Claims, Compensation Claims, Chapter 2.901.15(c)(3)
(February 2013).
19

5 U.S.C. § 8707(d); D.H., Docket No. 19-0384 (issued August 12, 2019).

20

J.L., Docket No. 14-1094 (issued June 25, 2015).

21

See generally P.K., Docket No. 18-0913 (issued March 5, 2020); C.P., Docket No. 19-0317 (issued July 1, 2019).

22

Docket No. 13-2164 (issued April 18, 2014).

5

compensation from June 22 through October 12, 2019 due to its failure to deduct premiums for
PRBLI.23
CONCLUSION
The Board finds OWCP improperly determined that the overpayment of compensation in
the amount of $2,214.84 because OWCP had failed to deduct PRBLI premiums from appellant’s
wage-loss compensation for the period June 22, 2018 through October 12, 2019.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 19, 2020
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

23

P.K., Docket No. 18-0913 (issued March 5, 2020); C.P., supra note 21.

6


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

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1039
Issued: October 25, 2007

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 March 6, 2007 appellant timely appealed the March 23 and June 22, 2006 decisions
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.1
ISSUES
The issues are: (1) whether appellant’s cervical degenerative disc disease is causally
related to her January 8, 2003 employment injury; and (2) whether the Office properly denied
further merit review of appellant’s claim pursuant to 5 U.S.C. § 8128(a).

1

The record also includes an August 23, 2006 merit decision denying appellant’s claim for recurrence of
disability beginning May 8, 2006. She subsequently requested an oral hearing, which was held on January 25, 2007.
However, the Branch of Hearings & Review had yet to issue a final decision by the time appellant filed her current
appeal. In the March 6, 2007 filing, appellant’s representative did not specifically request that the Board review the
August 23, 2006 decision. Accordingly, the Board will not exercise jurisdiction over this latest Office decision.
The Board is precluded from considering any evidence that was not part of the record at the time the Office issued
the June 22, 2006 decision denying reconsideration. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case was previously before the Board. Appellant, a 41-year-old maintenance
support clerk, has an accepted occupational disease claim for bilateral wrist tendinitis, right
carpal tunnel syndrome and cervical strain, which arose on or about January 8, 2003.2 In
July 2003, appellant was diagnosed with cervical degenerative disc disease and spinal stenosis.3
In February 2004, she was diagnosed with right shoulder tendinitis with impingement and
cervical disc disease with right cervical radiculopathy. With the exception of the previously
noted cervical strain, the Office has not accepted any other cervical conditions as being related to
the January 8, 2003 employment injury.4
On June 22, 2004 the Office terminated appellant’s wage-loss compensation and medical
benefits.5 An Office hearing representative subsequently affirmed the termination of wage-loss
compensation, but found that appellant remained eligible for medical benefits and thus, set aside
that aspect of the June 22, 2004 decision. On the prior appeal, the Board affirmed the hearing
representative’s August 1, 2005 decision terminating wage-loss compensation.6
In its
January 11, 2006 decision, the Board found that the Office met its burden to terminate wage-loss
compensation as the evidence demonstrated that appellant was no longer disabled due to her
January 8, 2003 employment injury. The Board also found that appellant failed to establish that
her ongoing cervical condition and her diagnosed right shoulder tendinitis with impingement
were related to the January 8, 2003 employment injury.
In a December 16, 2005 report, Dr. Robert R. McIvor, a Board-certified orthopedic
surgeon and Office referral physician, diagnosed bilateral carpal tunnel compression, multilevel
cervical disc degeneration and probable minimal impingement syndrome in both shoulders. He
did not recommend any specific treatment for appellant’s cervical condition other than providing
her with a cervical pillow and sponge collar. Dr. McIvor also did not provide a specific opinion
on causal relationship.
The Office sought clarification on whether appellant’s cervical degenerative disc disease
was causally related to her January 8, 2003 employment injury. Dr. McIvor responded on
January 13, 2006, explaining that appellant’s cervical degenerative disease was longstanding, but
was rendered symptomatic by her frequent use of the computer and sustained positioning of her
2

Appellant underwent a right carpal tunnel release on September 22, 2003.

3

A July 21, 2003 cervical magnetic resonance imaging (MRI) scan revealed multilevel discogenic disease.
Dr. Anthony J. Abene, a Board-certified orthopedic surgeon and Office referral physician, explained in his July 23,
2003 report that appellant’s cervical degenerative disc disease and spinal stenosis were underlying conditions that
were not created by the employment injury. However, they were related to appellant’s work factors by way of
aggravation of a preexisting condition. Dr. Abene further indicated that the aggravation should be temporary.
4

The Office also had not accepted an employment-related right shoulder condition.

5

The Office based its decision on a May 12, 2004 report from Dr. John W. Batcheller, a Board-certified
orthopedic surgeon and impartial medical examiner.
6

Docket No. 05-1819 (issued January 11, 2006). The Board’s January 11, 2006 decision is incorporated herein
by reference.

2

head and neck. He further explained that the condition was not connected with any specific
injury, but rather a cumulative trauma-type situation on the basis of appellant’s work activities.
In a February 13, 2006 report, Dr. Mark H. Chan, a Board-certified physiatrist who
treated appellant for her cervical condition dating back to 2003, indicated that the cervical strain
and MRI scan documented foramina stenosis were related injuries and in practical terms could
not be separated in regards to causality.
The Office again requested clarification from Dr. McIvor. In a March 5, 2006
supplemental report, he stated that appellant’s cervical degenerative disc disease was almost
certainly present prior to her January 8, 2003 complaints of pain and numbness in the right hand.
He further stated that the condition presumably had not been symptomatic until more recently.
Dr. McIvor explained that the only argument that work would have something to do with the
neck being symptomatic would be the fact of appellant having to hold her head and neck in a
fixed position while operating the computer. He further explained that this would put a certain
amount of strain on the neck and the damaged discs could become inflamed on that basis.
In a March 23, 2006 decision, the Office disallowed appellant’s cervical degenerative
disc disease. The Office found that the record did not establish that this condition was causally
related to the January 8, 2003 employment injury.
On March 27, 2006 appellant requested reconsideration based on Dr. McIvor’s report.
Appellant did not submit any additional evidence with the March 27, 2006 request. By decision
dated June 22, 2006, the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under the Federal Employees’ Compensation Act7 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.8
Where appellant claims that a condition not accepted or approved by the Office was due
to her employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.9
7

5 U.S.C. § 8101-8193 (2000).

8

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the 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.
9

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

3

ANALYSIS -- ISSUE 1
The medical evidence of record fails to establish that appellant’s cervical degenerative
disc disease is causally related to her January 8, 2003 employment injury. When Dr. Abene
examined appellant in July 2003, he explained that her cervical degenerative disc disease and
spinal stenosis were underlying conditions that were not created by the employment injury, but
were related to the work factors by aggravation of a preexisting condition, which should only be
temporary. At the time of the examination, appellant was working part-time, limited duty.
Dr. Abene did not clearly indicate whether appellant’s pre-January 8, 2003 work exposure was
the aggravating factor or whether her continued employment was the cause of her ongoing
cervical complaints.
Dr. Chan initially diagnosed cervical disc disease with right cervical radiculopathy in
February 2004. However, at that time, he did not specifically attribute the diagnosed cervical
condition to appellant’s January 8, 2003 injury. In Dr. Chan’s recent February 13, 2006 report,
he stated that appellant’s cervical strain and MRI scan documented foramina stenosis were
related injuries and in practical terms could not be separated. But despite his statement that a
causal relationship exists, Dr. Chan’s opinion is insufficient because he failed to explain how
appellant’s cervical disc disease was causally related to her January 8, 2003 employment injury.
Dr. McIvor expressed the opinion that appellant’s underlying cervical degenerative disc
disease was aggravated by her employment activities. He explained that the condition was not
connected with any specific injury, but rather a cumulative trauma-type situation on the basis of
appellant’s work activities. Dr. McIvor indicated that having to hold her head and neck in a
fixed position while operating the computer would put a certain amount of strain on the neck and
the damaged discs could become inflamed on that basis. It is not clear, however, whether the
aggravation he spoke of occurred on or about January 8, 2003 or subsequent thereto. If the latter
scenario is the more accurate description of the onset of appellant’s condition, then it cannot be
said to be related to the current claim. This appears to be the more reasonable interpretation of
Dr. McIvor’s findings given his March 5, 2006 statement that “the condition presumably [had]
not been symptomatic until more recently….”
Appellant’s cervical degenerative disc disease may very well have been aggravated by
her employment activities. However, the current record does not clearly establish that her preJanuary 8, 2003 employment exposure was an aggravating factor. Accordingly, the Office
properly found that appellant failed to establish that her cervical degenerative disc disease was
causally related to her January 8, 2003 employment injury.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.10 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
10

5 U.S.C. § 8128(a).

4

of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.11
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.12
ANALYSIS -- ISSUE 2
Appellant’s March 27, 2006 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).13 She also failed to satisfy the third
requirement under section 10.606(b)(2). Appellant did not submit any relevant and pertinent
new evidence with her March 27, 2006 request for reconsideration and therefore she is not
entitled to a review of the merits of her claim based on the third requirement under section
10.606(b)(2).14 Because appellant was not entitled to a review of the merits of her claim
pursuant to any of the three requirements under section 10.606(b)(2), the Office properly denied
the March 27, 2006 request for reconsideration.
CONCLUSION
Appellant has not established that her cervical degenerative disc disease is causally
related to the January 8, 2003 employment injury. The Board further finds that the Office
properly denied appellant’s March 27, 2006 request for a review of the merits of her claim.

11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.608(b).

13

Id. at § 10.606(b)(2)(i) and (ii).

14

Id. at § 10.606(b)(2)(iii).

5

ORDER
IT IS HEREBY ORDERED THAT the June 22 and March 23, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 25, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Titusville, FL, Employer
__________________________________________

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Appearances:
Molly J. Durso, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-411
Issued: July 17, 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 December 16, 2013 appellant, through her attorney, filed a timely appeal from a
July 31, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained an injury in the
performance of duty on August 30, 2012, as alleged.
On appeal counsel contends that appellant’s injury occurred on premises controlled by
the employing establishment as shown by the photographs submitted to OWCP and that
appellant was on an authorized break.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 2012 appellant, then a 55-year-old mail processing clerk, filed a traumatic
injury claim alleging that she injured her right knee and arm on that date when she stepped into a
weed covered pothole while outside on break. The employing establishment authorized medical
treatment for right elbow fracture on an OWCP CA-16 form.
In correspondence dated September 4, 2012, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. She was advised as to the medical and factual
evidence required and provided 30 days to submit this information.
On September 6, 2012 a conference was held to discuss appellant’s claim. Appellant
started work at 3:00 a.m. on August 30, 2012 and the injury occurred at 4:08 a.m. She stated that
at the time of the injury she was not on an authorized break as she was not entitled to take a
break until she had worked two hours. The reason appellant went outside was to watch a rocket
launch. She related that her injury occurred in a parking lot not used by the employing
establishment and the area was dark and unlit.
In an August 31, 2012 report, Dr. James D. Glenn, a treating, Board-certified orthopedic
surgeon, diagnosed a radial head facture. He obtained a history that the injury occurred on
August 30, 2012 when she fell in a pothole while at work.
In a September 25, 2012 letter, appellant’s counsel contended that appellant was on an
authorized break at the time of the August 30, 2012 incident. Appellant had previously taken a
15-minute break at 4:00 a.m. when starting work at 3:00 a.m. She also alleged that the parking
lot was under the control of the employing establishment. Appellant submitted a statement from
Ricky Edward, a coworker, who related that appellant went on break a little after 4:00 a.m. on
August 22, 2012 to watch the Atlas rocket launch.
By decision dated October 11, 2012, OWCP denied appellant’s claim. It found that the
injury did not arise in the performance of duty or within the scope of her employment.
On December 3, 2012 appellant’s counsel requested reconsideration. She argued that it
had been past practice for the employing establishment to allow employees to watch a space
launch. Counsel contended that appellant was on an authorized break as employees were
allowed one break before lunch and one break after lunch.
By decision dated February 11, 2013, OWCP denied modification of the October 11,
2012 decision. It found that appellant’s injury did not arise within the performance of duty.
In a letter dated April 24, 2013, appellant’s counsel requested reconsideration and
submitted additional medical and factual evidence. Counsel argued that the enclosed maps
showed that the parking area was not open to the public and was exclusively for the use of
employees of the employing establishment. She noted that, while the public records suggest that
the property was not owned by the employing establishment, “the facts and circumstances” prove
control and management of the premises by the employing establishment. Counsel also argued
that appellant’s break was authorized as she was on the clock at the time of the injury.

2

In an undated statement, appellant related that at the time of her injury she was on an
authorized 10-minute break. She contended that the area where she was injured was employing
establishment property as there were no barriers or signs prohibiting anyone from being in the
area.
By decision dated July 31, 2013, OWCP denied modification of the February 11, 2013
decision.2 It found that she was not in the performance of duty at the time of the injury as going
to watch a space launch was for her personal convenience and not incidental to her employment.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.4 In the course of employment relates to the elements of time, place and work
activity. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in his or her master’s business, at a place when
he or she may reasonably be expected to be in connection with his or her employment, and while
he or she was reasonably fulfilling the duties of his or her employment or engaged in doing
something incidental thereto.5 As to the phrase in the course of employment, the Board has
accepted the general rule of workers’ compensation law that, as to employees having fixed hours
and places of work, injuries occurring on the premises of the employing establishment, while the
employees are going to or from work, before or after working hours, or at lunch time, are
compensable.6
As a general rule, off-premises injuries sustained by employees having fixed hours and
place of work, while going to or coming home from work or during a lunch period, are not
compensable as they do not arise out of and in the course of employment but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.7 When
an employee has a definite place and time for work and the time for work does not include the
2

The Board notes that, following the July 13, 2013 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947). See also M.A., Docket No. 08-2510
(issued July 16, 2009); Phyllis A. Sjoberg, 57 ECAB 409 (2006).
5

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

6

R.M., Docket No. 07-1066 (issued February 6, 2009); Narbik A. Karamian, 40 ECAB 617 (1989). The Board
has also applied this general rule of workers compensation law in circumstances where the employee was on an
authorized break. See Eileen R. Gibbons, 52 ECAB 209 (2001).
7

Mary Keszler, 38 ECAB 735, 739 (1987).

3

lunch period, the trip away from and back to the premises for the purposes of getting lunch is
indistinguishable in principle from the trip at the beginning and end of the workday and is
governed by the same rules and exceptions.8 Exceptions to the general rule have been made in
order to protect activities that are so closely related to the employment itself as to be incidental
thereto9 or which are in the nature of necessary personal comfort or ministration.10
ANALYSIS
Appellant filed a traumatic injury claim alleging that she sustained a right elbow fracture
on August 30, 2012 in the performance of duty. OWCP denied her claim finding that her injury
was not sustained in the performance of duty.
To be covered, an injury must occur at a time when the employee may reasonably be said
to be engaged in his or her master’s business, at a place where he or she may reasonably be
expected to be in connection with his or her employment and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.11
In the instant case, appellant injured her right knee and arm when she stepped into a weed
covered pothole while outside on break. She related that at the time of the injury she had gone to
watch a rocket launch from a parking lot not used by the employing establishment and the area
was dark and unlit.
Appellant contends that she was in the performance of duty when she went outside to
watch a rocket launch at approximately 4:00 a.m. on August 30, 2012. The Board has held that
certain injuries that arise on the employer’s premises may be compensable if the employee was
engaged in an activity reasonably incidental to the employment, such as personal acts for the
employee’s comfort, convenience and relaxation.12 The Board has found that this doctrine
applies in such cases as using the restroom facilities,13 clearing snow off a claimant’s car that is
parked in the employing establishment’s parking lot14 and moving a car within the parking lot of
8

Cheryl Bowman, 51 ECAB 519 (2000); Donna K. Schuler, 38 ECAB 273, 274 (1986); A. Larson, The Law of
Workers’ Compensation § 13.05 (2004).
9

The Board has stated that these exceptions are dependent upon the particular facts and related situations:
(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; and (4) where the employee uses the highway to do something incidental to his employment, with the
knowledge and approval of the employer. Betty R. Rutherford, 40 ECAB 496, 498-99; Lillie J. Wiley, 6 ECAB 500,
502 (1954).
10

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

11

V.H., Docket No. 10-1053 (issued April 20, 2011); David P. Sawchuk, 57 ECAB 316 (2006).

12

J.O., Docket No. 09-1432 (issued February 3, 2010); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

V.O., 59 ECAB 500 (2008); James P. Schilling, 54 ECAB 641 (2003).

14

J.O., supra note 12 (where the Board held that using a portion of appellant’s lunch hour to clean the snow off
her vehicle that was parked on government property did not take the injury out of the performance of duty); see also
Annette Stonework, 35 ECAB 306 (1983).

4

the employing establishment.15 The Board has also found a claimant to be in the performance of
duty in certain instances when the injury occurred off-premises of the employing establishment.
The Board has held that an injury was sustained in the course of employment in cases where the
employee was on a paid break, on a brief errand and acted with the consent of the employing
establishment. These circumstances included going off-premises to get coffee when no coffee
was available in the building,16 taking a smoke break adjacent to the office building,17 or taking a
walk when the employing establishment encouraged the word processing employees to take
regular breaks for walking.18
The Board finds that appellant was not in the performance of duty at the time of her
injury. This case is similar to Mary Keszler,19 where the employee was injured while feeding
parking meters on a public street for herself and other employees. In Keszler, the employee was
on her lunch break when she went outside to put money in parking meters for herself and for two
other employees. She was struck by a motor vehicle and sustained injury. The employee
contended that her injury was compensable even though it occurred off-premises on a public
street because her conduct was condoned or supported by her supervisors and that different staff
members were assigned to feed the meters on a rotating basis. The administrative law judge in
charge of the office stated that the practice of rotating employees to put money in meters was
done with his knowledge. It was a voluntary duty employees were not required to perform. The
Board found, however, that the employee’s injury did not arise in the performance of duty as the
practice constituted an informal arrangement among the employees who drove their private
vehicles to work and was a personal convenience for the employees. Although there was no
question that appellant’s supervisor and the judge in charge of the office knew of and condoned
this practice, no employment factors were involved in appellant’s absence from the employer’s
premises at the time her injury occurred. The Board noted that the mere knowledge of the
practice itself by the employee’s supervisors was not sufficient to make an informal office
practice an activity incidental to her employment.20
In this case, appellant testified that she went out on a break to watch a rocket launch and
the employing establishment was aware of this practice. The Board notes that no employment
factors were involved in appellant’s absence from her work premises at the time of injury. As in
Keszler, appellant’s injury was sustained while she was engaged in a matter of a personal
convenience, i.e., going outside to watch a rocket launch. Her activity did not relate to her work
as a mail processing clerk or to personal ministration while on the premises of the employing
establishment. The Board finds that appellant’s injury was not in the performance of duty.

15

Cheryl Bean-Welch, Docket No. 03-714 (issued June 12, 2003).

16

Helen Gunderson, 7 ECAB 288 (1954).

17

Roma A. Mortenson-Kindschi, supra note 12.

18

Lola M. Thomas, 34 ECAB 525 (1983).

19

38 ECAB 735 (1987).

20

Id.

5

Accordingly, appellant has not met her burden of proving that she sustained an injury in the
performance of duty.
On appeal appellant’s counsel argues that her claim should be covered under FECA as
the parking lot where appellant fell was under the control of the employing establishment.
Furthermore, appellant was on an authorized break at the time of the incident. The evidence
submitted is not sufficient to establish these contentions. As noted, the Board finds that the
activity of going outside to watch a space launch was not incidental to her federal employment.
Appellant was not in the performance of duty at the time of the injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty on August 30, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 31, 2013 is affirmed.
Issued: July 17, 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
_________________________________________
S.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
_________________________________________

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

Docket No. 12-1799
Issued: February 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from an April 2, 2012 Office of
Workers’ Compensation Programs (OWCP) schedule award decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than an eight
percent impairment of his left arm, for which he received a schedule award.
FACTUAL HISTORY
On December 7, 2010 appellant, then a 34-year-old border patrol agent, was injured
during all terrain vehicle (ATV) training when he was ejected from a vehicle and landed on his
left shoulder. OWCP accepted his claim for closed fracture of the left clavicle. On
1

5 U.S.C. § 8101 et seq.

December 16, 2010 appellant underwent a left clavicle open reduction with internal fixation. He
received wage-loss compensation benefits.
In a May 11, 2011 report, Dr. Thomas W. Harris, an orthopedic surgeon specializing in
sports medicine, reviewed appellant’s history of injury and medical treatment, noting that he was
post left clavicle open reduction and internal fixation. He utilized the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009) (A.M.A.,
Guides). On examination, the left shoulder showed a well-healed incision with no evidence of
rotator cuff atrophy and tenderness to palpation over the greater tuberosity in the area of the
supraspinatus tendon. Dr. Harris found that the joint capsule was nontender, although appellant
had tenderness to palpation along the long head of the biceps tendon. Appellant had mild
tenderness to palpation in the area of the upper trapezius, levator, and rhomboid muscle group
and the acromioclavicular joint was nontender to palpation. Left shoulder range of motion
findings included: 45 degrees of extension; 160 degrees of flexion; 60 degrees internal rotation,
65 degrees external rotation; abduction of 160 degrees; and adduction of 50 degrees. Dr. Harris
found that appellant reached maximum medical improvement on May 11, 2011 and was capable
of working his usual and customary job without restrictions. After surgery, appellant had
continued loss of motion and mild weakness. Dr. Harris referred to Table 15-5 of the A.M.A.,
Guides to rate 10 percent left arm impairment.2 Dr. Harris explained that the A.M.A., Guides did
not address the specific condition or procedure that appellant underwent; however, the closest
condition would be an acromioclavicular joint injury with residual loss of motion and strength.
On July 14, 2011 appellant submitted a Form CA-7 requesting a schedule award.
On August 17, 2011 Dr. Christopher R. Brigham, a Board-certified orthopedic surgeon
and OWCP medical consultant, noted appellant’s treatment and history. He reviewed Dr. Harris’
report and opined that appellant had an eight percent impairment of the arm. Dr. Brigham
explained that Dr. Harris based his impairment upon loss of motion and weakness. He stated that
it was appropriate to rate impairment due to loss of motion but the A.M.A., Guides did not allow
ratings based on weakness. Dr. Brigham noted that evaluation of impairment due to the clavicle
fracture was based upon section 15.2, Diagnosis-Based Impairment and section 15.2e, Shoulder.3
He referred to Table 15-5, Shoulder Regional Grid, the section on Ligament/Bone/Joint4 and
advised that for the diagnosis “fracture” there was a class 1 rating for “residual symptoms,
consistent objective findings and/or, functional with normal motion.” This yielded a default
rating of three percent arm impairment. Dr. Brigham noted that section 1 15.3a, Adjustment
Grid -- Functional History and Table 15-7, Functional History Adjustment -- Upper Extremity,5
appellant was assigned grade modifier 1; and the functional history was consistent with
“pain/symptoms with strenuous/vigorous activity; + /- medication to control symptoms.” He
referred to section 15.3b, Adjustment Grid -- Physical Examination and Table 15-8, Physical
Examination on Adjustment -- Upper Extremities,6 and noted that appellant was assigned a grade
2

A.M.A., Guides 403, Table 15-5.

3

Id. at 387, 390.

4

Id. at 405.

5

Id. at 406.

6

Id. at 407, 408.

2

modifier 1, as the physical examination revealed mild motion loss. Dr. Brigham referred to
section 15.3; Adjustment Grid -- Clinical Studies and Table 15-9, Clinical Studies Adjustment -Upper Extremities,7 and determined that appellant was assigned a grade modifier 1 as the
diagnostic study confirmed the diagnosis. He explained that each grade modifier was 1, which
was compared to the diagnosis class of one, yielding no net adjustment from the grade C default
impairment of three percent. Dr. Brigham stated that, based upon the nature of the diagnosis,
impairment was also evaluated using the range of motion method under section 15.7g, Shoulder
Motion and Table 15-34, Shoulder Range of Motion.8 He explained that the A.M.A., Guides
directed that this section was to be used as a stand-alone rating when applicable.9 Left shoulder
ranges of motion were: flexion of 160 degrees, which corresponded to three percent impairment;
extension of 45 degrees, which corresponded to no impairment; abduction of 160 degrees, which
corresponded to three percent impairment; adduction of 50 degrees, which corresponded to no
impairment; internal rotation of 60 degrees, which corresponded to two percent impairment and
external rotation of 65 degrees which corresponded to no impairment. Dr. Brigham added the
shoulder range of motion impairments to yield eight percent impairment. As this was a higher
rating, he opined that appellant had eight percent impairment of the left upper extremity.
By decision dated April 2, 2012, OWCP granted appellant a schedule award for a total of
24.96 weeks of compensation for an eight percent permanent impairment of the left upper
extremity.
LEGAL PRECEDENT
The schedule award provision of FECA,10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 For decisions issued
after May 1, 2009, the sixth edition will be used.13
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers

7

Id. at 407, 410, 411.

8

Id. at 472, 475.

9

Id. at 461.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13

FECA Bulletin No. 09-03 (issued March 15, 2009).

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based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.16
ANALYSIS
In a May 11, 2011 report, Dr. Harris determined that appellant had a 10 percent
impairment of the left arm. He stated that the A.M.A., Guides, did not address appellant’s
condition and that the closest comparable condition was an acromioclavicular injury with
residual loss of motion and strength under Table 15-5, page 403 of the A.M.A., Guides. The
Board finds that Dr. Harris did not adequately explain how this diagnosis best approximated
appellant’s condition or how he applied grade modifiers. Dr. Harris did not address why the
impairment rating for a fracture in the shoulder region that is set forth on page 405 of the
A.M.A., Guides, was not applicable. The record establishes that appellant had a fractured
clavicle which was surgically impaired and did not have a distal clavicle resection.17 To the
extent that Dr. Harris was attempting to combine a diagnosis-based rating with findings for loss
of range of motion, this was not in conformance with the A.M.A., Guides. The Board notes that
the A.M.A., Guides indicate that range of motion is not to be combined with other impairment.
The A.M.A., Guides explains that diagnosis-based impairment is the method of choice for
calculating impairment, while range of motion is used principally as an adjustment factor. When
other grids refer the evaluator to the range of motion section or when no other diagnosis-based
system is applicable, range of motion impairment serves as a stand-alone rating, one that cannot
be combined with a diagnosis-based estimate.18 Board precedent is well settled that when an
attending physician’s report gives an estimate of impairment but does not address how the
estimate is based upon the A.M.A., Guides, OWCP is correct to follow the advice of its medical
adviser or consultant where he has properly applied the A.M.A., Guides.19
In an August 17, 2011 report, Dr. Brigham utilized the findings provided by Dr. Harris.
He opined that the applicable diagnosis for appellant’s surgically repaired left clavicle fracture
14

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

15

Id. at 411.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
17

See A.M.A., Guides 403 (the description for an acromioclavicular joint injury which merits a 10 percent default
impairment rating, indicates that the patient has undergone a distal clavicle resection or has a type III
acromioclavicular joint separation with complete disruption of the joint capsule and coracoclavicular ligaments).
18

A.M.A., Guides 461.

19

J.Q., Docket No. 06-2152 (issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

4

was the fracture diagnosis in Table 15-5, page 405. It provides a three percent default
impairment rating for the arm. The medical adviser noted the applicable grade modifiers,
applied the net adjustment formula and determined that there was no net adjustment from the
three percent default rating.20 He properly noted that loss of range of motion could not be
combined with a diagnosis-based rating. The medical adviser evaluated impairment using the
range of motion method according to section 15.7g, Shoulder Motion and Table 15-34, Shoulder
Range of Motion.21 He explained that this section could be used as a stand-alone rating when
other grids referred to this section.22 Using Dr. Harris’ range of motion findings, the medical
adviser found three percent arm impairment for left shoulder flexion of 160 degrees, three
percent impairment for abduction of 160 degrees and two percent impairment for internal
rotation of 60 degrees. Adding the range of motion impairment values, Dr. Brigham determined
that appellant had an eight percent impairment of the left arm due to limited left shoulder motion.
The Board notes that the medical adviser correctly utilized the A.M.A., Guides and utilized the
range of motion method, which provided for a higher impairment rating of eight percent of the
left upper extremity.
Appellant has not submitted any other medical evidence conforming with the A.M.A.,
Guides establishing that he has a greater schedule award.
On appeal, appellant argued that OWCP’s medical adviser ignored the categories for
extension and external rotation and that he was entitled to the 10 percent provided by Dr. Harris.
The medical adviser properly found that those two motion measurements did not merit
impairment.23 As explained, the medical adviser properly applied the A.M.A., Guides to the
findings of Dr. Harris in calculating appellant’s impairment.
The Board notes that appellant retains the right to file a claim for an increased schedule
award based on new exposure or on medical evidence indicating that the progression of an
employment-related condition, without new exposure to employment factors, has resulted in a
greater permanent impairment than previously calculated.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
greater than eight percent of the left upper extremity.

20

See supra notes 3-7 and accompanying text.

21

A.M.A., Guides 472, 475.

22

Id. at 461.

23

Appellant had extension of 45 degrees but Table 15-34 provides for impairment only when the measurement is
40 percent or less. He had external rotation of 65 degrees but Table 15-34 provides for no impairment when the
measurement is over 60 degrees. See id. at 475.

5

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 14-620
Issued: June 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2014 appellant filed a timely appeal from a July 30, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he abandoned
his request for an oral hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision
by OWCP. The last merit decision of record was OWCP’s February 7, 2013 decision. Because
more than 180 days has elapsed from the last merit decision to the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant abandoned his request for an oral hearing before an
OWCP hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 26, 2012 appellant, then a 46-year-old temporary relief carrier (TRC), filed
a traumatic injury claim (Form CA-1) alleging that on November 24, 2012 he sustained right
foot, left shoulder and left arm injuries when he twisted his foot while exiting his truck.
By letter dated January 4, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked to respond to the provided questions within 30 days.
In support of his claim, appellant submitted medical records dated January 8 and 22, 2013
and a November 24, 2012 narrative statement.
By decision dated February 7, 2013, OWCP denied appellant’s claim finding that the
evidence failed to establish that the diagnosed condition was causally related to the accepted
November 24, 2012 employment incident.
On March 8, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
By letter dated June 13, 2013, OWCP notified appellant that a hearing would be held on
July 15, 2013 at 9:30 a.m. Eastern time. It provided him with a toll free number to call at that
time to be connected to the hearing representative.
By decision dated July 30, 2013, an OWCP hearing representative found that appellant
abandoned his request for an oral hearing. The hearing representative determined that appellant
received written notice 30 days in advance of the hearing but failed to participate. The hearing
representative found no evidence that appellant contacted OWCP either prior to or subsequent to
the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides the right to a hearing before an OWCP hearing
representative, stating:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”2
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s hearing
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.616 (a).

2

representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.4 OWCP has the burden of proving that
it mailed to appellant and his representative a notice of a scheduled hearing.5
The authority governing abandonment of hearings rests with OWCP’s regulations, which
provide in pertinent part as follows: A claimant who fails to appear at a scheduled hearing may
request in writing within 10 days after the date set for the hearing that another hearing be
scheduled. Where good cause for failure to appear is shown, another hearing will be scheduled
and conducted by teleconference. The failure of the claimant to request another hearing within
10 days, or the failure of the claimant to appear at the second scheduled hearing without good
cause shown, shall constitute abandonment of the request for a hearing.6
ANALYSIS
Following OWCP’s February 7, 2013 decision denying his claim for compensation,
appellant requested an oral hearing on March 8, 2013 before an OWCP hearing representative.
By letter dated June 13, 2013, OWCP notified appellant that his telephone hearing was scheduled
for July 15, 2013 at 9:30 a.m. Eastern time. It provided him with a toll-free number and pass
code to call in at the time of the hearing. Appellant did not request a postponement, failed to call
in at the scheduled hearing and failed to provide any explanation for such failure within 10 days
of the scheduled date of the hearing.7 As all three conditions for abandonment are met, the
Board finds that appellant abandoned his request for an oral hearing. The Board will therefore
affirm the hearing representative’s July 30, 2013 decision.
On appeal, appellant argues that OWCP should pay for his medical bills because his
injury was work related. As previously noted, the Board does not have jurisdiction to review the
February 7, 2013 merit decision denying appellant’s claim for compensation.8
CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing before an
OWCP hearing representative on July 15, 2013.

4

Id. at 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991); see also K.D., Docket No. 11-77 (issued August 18, 2011).

6

20 C.F.R. § 10.622(f); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.6(g) (October 2011). See also M.F., Docket No. 14-128 (issued March 18, 2014).
7

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See James A. Gray, 54 ECAB 277 (2002). The June 13, 2013 OWCP letter was
sent to appellant’s address of record.
8

Supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the July 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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