United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA, Employer
__________________________________________

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Appearances:
John M. Poti, Esq., for the appellant
No appearance, for the Director

Docket No. 07-308
Issued: January 25, 2008

Oral Argument July 12, 2007

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

JURISDICTION
On November 2, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 4, 2006 which denied his claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On April 5, 1999 appellant, then a 43-year-old postal clerk, filed an occupational disease
claim for depression, stress and anxiety due to factors of his federal employment. He alleged
that he had been threatened several times at work by William Canada, a coworker, and that the
threats continued despite intervention of postal authorities. Appellant went to his immediate
supervisor on September 4, 1998 and to the postmaster on September 9, 1998 to request

assistance but experienced a lack of sympathy regarding the coworker’s behavior and alleged
that their comments aggravated his condition. Steve Ercha, appellant’s supervisor, allegedly told
appellant that he was a “big mouth troublemaker and you brought it on yourself.” The
postmaster told appellant “there is a different standard for management than craft” regarding
threats of violence and that he should “see a doctor or resign.” Appellant alleged that his
condition was further aggravated after employing establishment personnel failed to talk to any of
his witnesses and his case was closed. He stopped work on October 9, 1998 and did not return.
In a January 29, 1999 report, Dr. Chand K. Bhan, a Board-certified psychiatrist,
diagnosed major depression and post-traumatic stress disorder. He opined that the conditions
were “precipitated by problems at work.” Dr. Bhan advised that appellant could not work at his
present job. In a February 5, 1999 report, Robert L. Seyler, a licensed social worker, stated that
in order for appellant to return to work, changes or some kind of resolution was necessary.
Appellant submitted a June 15, 1998 statement which he provided to the postal inspector.
On June 10, 1998 he was allegedly threatened by Mr. Canada in the course of a discussion with
Ron Wood, a shop steward, over why Mr. Canada was permitted to be on an overtime rotation
while appellant was never asked. Mr. Canada came to appellant’s work area and said: “Let’s go
outside right now.” Appellant asked Mr. Wood if he would be a witness that Mr. Canada had
threatened him. He went to his supervisor’s office and alleged that Mr. Canada whispered that
he would “kick my fucking ass.” On June 13, 1998 appellant alleged that he was threatened by
Jose Espinosa, a coworker. He stated that Mr. Espinosa must have witnessed the incident with
Mr. Canada because he stated that “he had balls and I didn’t.” Appellant also alleged that
Mr. Espinosa complained to him that a friend of his had walked away while Mr. Espinosa was
talking to him. Mr. Espinosa became enraged, put his fist in appellant’s face and said “he would
like to smash it.” Appellant stated that M. Finn and T. Valancourt, coworkers, were present
when Mr. Espinosa threatened him.
Appellant contended that the postal investigator did not conduct a thorough investigation
of these incidents and the case was closed before contacting his witnesses. After he returned to
work, Mr. Espinosa continued to threaten him. On August 22, 1998, after entering the break
room, Mr. Espinosa stated to another clerk, “[Appellant’s] all talk and no action and has no balls
like that guy there.” When a union steward investigated this incident, he was told that the two
men were talking about the postmaster. Appellant stated that he became frustrated, angry and
anxious because Mr. Espinosa always escaped discipline. After he contacted the postal
investigator, he was told “someone dropped the ball in Lawrence.” Appellant believed this
statement to mean that his supervisors should have contacted the postal investigator after
Mr. Espinosa continued making threats. He advised that a crisis intervention specialist had
spoken to Mr. Espinosa, who stated that appellant had misunderstood him and that he harbored
no bad feelings.
Appellant alleged that, on September 4, 1998, Mr. Espinosa said “I’ll put a bullet in his
head,” and believed that “he was talking about me, but I wasn’t sure.” After he told his
supervisor of the incident, Mr. Ercha allegedly said, “you’re a big-mouth troublemaker and you
brought it all on yourself.” Appellant became frustrated due to the lack of response. He left
work and advised his supervisor that he would not return until after speaking to the postmaster.
When meeting with the postmaster on September 9, 1998, the postmaster advised that the “case

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was closed.” The postmaster told appellant that he was provided with a safe environment and
that if he did not feel that way he should “see a doctor or resign.” Appellant subsequently
stopped work. He submitted documents regarding workplace threats and violence.1
In a May 10, 1999 memorandum, Mr. Ercha stated that he notified the inspection service
after appellant reported the incidents to him. He denied calling appellant a big mouth
troublemaker. Mr. Ercha offered to keep appellant away from the alleged threatening employee
by having him work away in another area. On June 2, 1999 the U.S. Postal Inspector advised
management that further investigation was not warranted. Their report indicated that
Mr. Canada and Mr. Espinosa were interviewed and both denied ever threatening appellant.
Two witnesses, Mr. Wood and Scott Watkins, denied hearing any threats made towards
appellant.
In a September 1, 1998 letter, Judith A. Farrell, intervention analyst, advised the
postmaster that appellant still felt threatened after the inspection service investigation concluded.
She spoke to Mr. Espinosa, who denied making any threat. Mr. Espinosa offered to talk to
appellant to say that he had no bad feelings and did not intend any harm. Ms. Farrell noted that
appellant was satisfied with Mr. Espinosa’s responses and would return to work on
September 2, 1998.
Appellant submitted medical evidence, including return to work and prescription slips
from Dr. Perin Thavaseelan, an internist, who diagnosed work-related stress and opined that
appellant should remain off work for certain periods. In an April 3, 1999 assessment,
Dr. William Patterson, Board-certified in occupational and internal medicine, recommended that
appellant be accommodated. On September 23, 1998 Dr. J. Gary Dolinsky, a clinical
psychologist, diagnosed adjustment disorder with mixed anxiety, depressed mood and relational
problems. He explained that appellant’s condition was primarily related to personal factors.
Dr. Dolinsky advised that appellant was able to return to work but might require a change in
work environment in order to provide some peace of mind.
In a November 12, 1999 decision, the Office denied appellant’s claim. The Office found
that appellant had not established any compensable factor of employment.
Appellant requested a hearing that was held on March 21, 2000. He reiterated his
allegations and noted that he was not currently working. Appellant submitted statements from
James R. Smith and Karen Couthea, coworkers, who addressed their interactions with
Mr. Espinosa. In a separate statement, a coworker advised that Mr. Ercha had used an epithet in
speaking about a female coworker. After the hearing, appellant submitted a May 4, 2000 letter
reiterating his allegations. In an April 17, 2000 report, Dr. Bhan diagnosed major depression and

1

This included a policy statement from the employing establishment; a brochure on the topic from the
Employee’s Assistance Program; a joint statement on violence in the workplace by management and the union; an
article in a postal newsletter and a newspaper article.

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post-traumatic stress disorder and advised that appellant was disabled. Mr. Seyler noted in a
March 15, 2000 letter that appellant remained in counseling.2
In a May 22, 2000 decision, the Office hearing representative affirmed the November 12,
1999 denial of appellant’s claim.
Appellant requested reconsideration in a July 20, 2000 letter. He alleged that his
managers had been aware of his disability and inability to work in the office, but made no effort
to transfer him. Appellant submitted a 3105D form, contending that it established that he was
not reassigned to work elsewhere. He submitted a statement from Betty Lou Morey, a
supervisor, who advised that she met with appellant, Mr. Ercha and the postmaster on
September 9, 1998, at which time appellant wanted management to reopen the investigation into
the alleged incidents. The postmaster noted that he did not have authority to reopen an
investigation by the postal inspector. Appellant advised that he did not feel safe and that it was
the postmaster’s responsibility. The postmaster pulled out a resignation form and told appellant
that he could fill it out if he did not feel safe. In an April 28, 2000 statement, Mr. Ercha
addressed the incidents, noting that it was a former employee who had stated that appellant was a
big mouth troublemaker. At the September 9, 1998 meeting with the postmaster, appellant
complained that he did not feel safe, became agitated and began to blame everyone for not doing
enough. After the postmaster advised that management had done what it could, appellant stated
that he would see a doctor and stop work. Appellant was advised that he could write another
letter to the inspection service and the postmaster informed him of his options, including
resignation. The postal managers agreed that a psychological fitness-for-duty examination and
Employee Assistance Program referral were necessary.
In an October 19, 2000 decision, the Office denied modification of the May 22, 2000
decision.
On October 16, 2001 appellant requested reconsideration. He submitted an April 18,
2001 Merit Systems Protection Board (MSPB) decision overturning the denial of his application
for a disability retirement by the Office of Personnel Management (OPM). The decision found
that appellant had disabling medical conditions of depression and post-traumatic stress disorder
allegedly stemming from a June 13, 1998 incident at work. In noting that appellant’s version of
the incident did not comport with the findings of the postal inspection service, the administrative
judge stated:
“However, deciding which version is the correct one is not important in
determining whether appellant is entitled to disability retirement benefits. What is
important is whether the incident, as viewed by appellant, caused him to truly
develop the medical conditions he and his doctors claim he developed and
whether those conditions render him disabled under the retirement law.
Consequently, I recount the incident below solely from appellant’s perspective.”

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Appellant also submitted a March 22, 2000 letter to the postmaster requesting a transfer on the advice of his
doctors. Copies of superior achievement awards from the employing establishment and a letter of appreciation from
the U.S. Army were also received.

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***
“For 32 months appellant has been consistent in the details of his version of the
June 13, 1998 incident and the postal service’s reaction to his pleas for
intervention/correction. In addition, from observing appellant’s demeanor while
testifying at the Board hearing, I find that he fervently believes in the truth of his
version. To appellant, his perception that he is in danger at work and that
management is doing nothing to thwart that danger is very real. Certain of his
health care providers have also indicated their belief that the June 13, 1998
incident and its aftermath have been real to appellant and [have] adversely
affected his psychological state.”
Appellant noted that the MSPB judge made a finding that the employing establishment’s
assignment of appellant to a different part of the facility away from the coworker who threatened
him was an unreasonable accommodation. In a February 22, 2001 report, Dr. Leo F. Polizoti, a
licensed psychologist, indicated that appellant had post-traumatic stress disorder due to verbally
assaultive behavior with threat of bodily harm that occurred by a coworker towards appellant in
1998 at work. He opined that appellant was permanently and totally disabled until the situation
was resolved and appellant could reestablish a sense of security.
In a January 8, 2002 decision, the Office denied modification of the October 19, 2000
decision. It noted that the standards for determining entitlement to OPM retirement benefits
differed from those establishing disability under the Federal Employees’ Compensation Act and
that the administrative judge based his decision solely on appellant’s allegations without taking
into account the evidence from the employer.
On January 7, 2003 appellant requested reconsideration. In a January 6, 2003 medical
report, Dr. Clive Dalby, a Board-certified psychiatrist, stated that he had treated appellant on
July 1, 2001. He diagnosed post-traumatic stress disorder and major depression. Dr. Dalby
advised that appellant had no prior psychiatric illness and that his psychiatric conditions were
related to work stress. In a January 5, 2003 note, Rick Marshall, a union steward, advised, “[o]n
or about June 13, 1998, I recall overhearing J. Espinosa refer to [appellant] as having ‘no balls,’
on the workroom floor….”3
By decision dated June 12, 2003, the Office denied modification. It found that the
statement of Mr. Marshall was not sufficient to establish that appellant was threatened by
Mr. Espinosa.
On June 10, 2004 appellant, through his attorney, requested reconsideration contending
that the Office erred in denying his claim as the investigation by the employing establishment
was inadequate. He contended that the MSPB decision established administrative error and that
the evidence established verbal abuse and harassment by his coworkers and supervisors.

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Appellant also contended that Ms. Farrell was being forbidden from furnishing a statement in support of his
claim.

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In an August 6, 2004 statement, Joseph Faneiullo, postmaster, noted that appellant had
brought to management’s attention that he was threatened by coworkers. The inspection service
was immediately contacted to investigate the matter and concluded that there was no evidence of
any threats. Mr. Faneiullo noted that appellant was referred to the Employee Assistance Program
counselor and scheduled for a fitness-for-duty examination. The agency’s crisis intervention
analyst also met with the alleged harasser and appellant was told of their meeting and had
advised that he would return to work on September 2, 1998. Mr. Faneiullo noted that appellant
was dissatisfied with the postal investigation report and on September 9, 1998 a meeting was
held with him and his supervisors. He explained to appellant that no evidence of threats had
been found and appellant had the option to return to work, transfer from the office, or resign if he
felt he could not work. Mr. Faneiullo denied ever stating to appellant that there were different
safety rules for management or craft or that he had ever discriminated against appellant.
In an August 26, 2004 decision, the Office denied modification of its prior decisions. It
found that appellant submitted insufficient evidence to establish that the investigation was in
error or abusive.
In a letter dated August 25, 2005, appellant requested reconsideration. He again
contended that the investigation by the postal service had been inadequate. Appellant also
argued that the Office failed to follow established procedures as it did not provide him with a
copy of the postmaster’s August 6, 2004 statement which contained material errors.4
In an August 4, 2006 decision, the Office denied modification of its prior decisions. It
noted that, while the Office did not send appellant a copy of the postmaster’s August 6, 2004
statement when received, a copy was subsequently sent to appellant on June 6, 2005 upon his
request. Therefore, with his reconsideration request, appellant had the opportunity to rebut the
employing establishment’s response. The Office found that appellant did not submit evidence to
establish his allegation of material errors in the postmaster’s statement.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
4

The record contains an employing establishment memorandum in opposition to appellant’s request for
reconsideration of an Equal Employment Opportunity (EEO) Commission decision which affirmed the postal
service’s decision not to reinstate appellant’s complaint of unlawful employment discrimination.
5

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

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coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Act. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of his work or his fear and anxiety regarding his
ability to carry out his work duties.6 By contrast, there are disabilities having some kind of
causal connection with the employment that are not covered under workers’ compensation law
because they are not found to have arisen out of employment, such as when disability results
from an employee’s fear of reduction-in-force or frustration from not being permitted to work in
a particular environment or to hold a particular position.7 An employee’s emotional reaction to
an administrative or personnel matter is generally not covered by workers’ compensation. The
Board has held, however, that error or abuse by the employing establishment in an administrative
or personnel matter may afford coverage.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
The Board has held that allegations, alone, by a claimant are insufficient to establish a
factual basis for an emotional condition claim but must be substantiated by the evidence.10 Mere
perceptions and feelings of harassment or discrimination will not support an award of

6

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

7

Id.

8

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
9

D.L., supra note 5; T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); C.S., 58 ECAB ___
(Docket No. 06-1583, issued November 6, 2006); A.K., 58 ECAB ___ (Docket No. 06-626, issued
October 17, 2006).
10

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).

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compensation.
evidence.11

The claimant must establish such allegations with probative and reliable

With regard to claims under the Act, the Board has held that the determination of an
employee’s rights or remedies under other statutory authority does not establish entitlement to
benefits under the Act. Under the Act, to establish disability, an employee’s injury must be
shown to be causally related to an accepted injury or accepted factors of his or her federal
employment. For this reason, the determinations of other administrative agencies or courts,
while instructive, are not determinative with regard to disability arising under the Act. Findings
made by the MSPB or EEO Commission may constitute substantial evidence relative to a claim
to be considered by the Office and the Board.12
ANALYSIS
Appellant attributed his emotional condition to threats made by Mr. Canada and
Mr. Espinosa, coworkers, and to an inadequate investigation into his complaints by management
and the postal investigation service. The Office found that appellant did not submit sufficient
evidence to support his allegations as factual and denied the claim as no compensable factor of
employment was established.
Appellant alleged that he was threatened by Mr. Canada on June 10, 1998 after
complaining to Mr. Wood that Mr. Canada was permitted on an overtime rotation list while
appellant had not been asked. He stated that Mr. Canada came to his workspace and threatened
him by saying “let’s go outside” and had whispered to him that he would “kick my fucking ass.”
Appellant alleged that on June 13, 1998 he was threatened by Mr. Espinosa, who placed his fist
in appellant’s face and stated that he would like to “smash it.” He alleged that, on August 22,
1998, Mr. Espinosa apparently made a comment to another clerk that appellant was “all talk and
no action and has no balls.” On September 4, 1998 appellant alleged that Mr. Espinosa
threatened to “put a bullet in his head”; noting that he believed this comment to be directed at
him, but he was not sure.
The Board has recognized the compensability of physical threats and verbal abuse in
certain circumstances.13 In such cases, the Board has reviewed the evidence of record to
determine whether the allegations of the claimant are substantiated by reliable and probative
evidence. This is where appellant’s claim fails. The record establishes that appellant notified his
supervisor, Mr. Ercha, of threats made by Mr. Canada and Mr. Espinosa. In turn, the postal
service investigative service was contacted and it conducted an investigation into his complaints.
11

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (it was found that the employee failed to establish the incidents or
actions characterized as harassment).
12

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

13

See Leroy Thomas, III, 46 ECAB 946, 954 (1995) (the employee did not establish as factual that a supervisor
threatened to kill him); Alton L. White, 42 ECAB 666, 669-70 (1991) (the employee established physical contact by
his supervisor as a compensable factor).

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By letters day June 2 and 3, 1999, the postal inspector advised that it had interviewed
Mr. Canada and Mr. Espinosa in addition to Mr. Wood and Mr. Watkins. Mr. Canada and
Mr. Espinosa denied making threats as alleged by appellant and Mr. Wood and Mr. Watkins also
denied hearing any threats made against appellant on those dates. The postal inspector
determined that it could not be determined that a credible threat against appellant was made on
either June 10 or 13, 1998. The matter was referred to the intervention analyst, Ms. Farrell, who
advised the postmaster that appellant felt threatened following the investigation and that she
spoke with Mr. Espinosa, who again denied making any threat. Mr. Espinosa offered to speak to
appellant to say that there were not hard feelings. She communicated this information to
appellant, who indicated to her that he would return to work.
The Board finds that appellant’s complaints of threats by coworkers were investigated by
the postal service. It determined that there was insufficient evidence to substantiate his
allegations. Mr. Wood, an individual identified by appellant as present on June 10, 1998, did not
support his description of threats by Mr. Canada. Ms. Farrell spoke to Mr. Espinosa who denied
having threatened appellant as alleged. Appellant has not provided sufficient evidence to
establish his version of the incidents on those dates. The Board notes that he did not submit any
statements from Mr. Finn or Mr. Valancourt in support of his allegations concerning the June 13,
1998 incident. Rather, appellant contends that it was an error on the part of the postal inspector
and Ms. Farrell not to secure statements from these individuals. However, in a claim under the
Act, he bears the burden of proof to substantiate his allegations with probative and reliable
evidence. Appellant did secure statements from Mr. Smith and Ms. Couthea, as noted.
However, these statements are not sufficient to establish his allegations of being threatened by
Mr. Espinosa. The statements of his coworkers addressed interactions they had with
Mr. Espinosa. They do not address the specifics of any allegations raised by appellant to the
postal authorities concerning June 13, 1998 or the comments attributed to Mr. Espinosa of
August 22 and September 4, 1998. Appellant even stated that he was unsure whether
Mr. Espinosa had directed the comments of September 4, 1998 to him.
Appellant provided a January 5, 2003 note from Mr. Marshall, who stated that he recalled
overhearing Mr. Espinosa refer to appellant as having “no balls” on or about June 13, 1998.
However, this brief statement is of diminished probative value as it does not address how
Mr. Marshall knew Mr. Espinosa’s comment was specifically directed at appellant or whether he
was present during the June 13, 1998 incident. The Board notes that appellant did not attribute
the “no balls” comment to the June 13, 1998 incident; rather he alleged that the June 13, 1998
event concerned Mr. Espinosa putting a fist in his face and saying he would like to “smash it.”
Appellant stated that the “no balls” comment was made by Mr. Espinosa on August 22, 1998,
after he entered a break room. This evidence is insufficient to establish appellant’s allegations as
factual. Appellant did not explain why similar statements could not be obtained from Mr. Finn
or Mr. Valancourt, noting only that they might be reluctant to become involved.
After receiving the results of the postal inspection, Ms. Farrell noted that appellant would
return as of September 2, 1998. The September 9, 1998 meeting was held to facilitate his return
to work. The statement of Ms. Morey noted that appellant wanted management to reopen the
investigation. Her description of the meeting does not provide support for appellant’s allegations
that his supervisor or the postmaster erred in the investigation process. Appellant was advised by
the postmaster that the employing establishment had done what it could and he did not have the

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authority to reopen the investigation. Mr. Ercha noted that appellant contended that management
had not done enough and was advised that he could make another written request to the postal
inspection service. The postmaster advised that the investigation was closed and that appellant’s
options were to return to work, transfer or resign. Appellant stated that he would see a physician
and stopped work.
An investigation by the employing establishment is an administrative matter.14
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.15
The Board finds that the evidence of record is insufficient to establish administrative error or
abuse in the investigation of appellant’s complaints. The record reflects that appellant was
dissatisfied with the outcome of the investigation, contending that Mr. Espinosa always escaped
discipline. The record, however, does not establish his allegations as factual.
Appellant stated that he felt lost and betrayed by a lack of sympathy over his concerns
regarding Mr. Espinosa and alleged that comments by his superiors aggravated his condition.
Appellant alleged that Supervisor Ercha said that he was a “big mouth trouble maker and you
brought it on yourself” and that the postmaster told him that there was a different standard for
management than craft regarding threats of violence. Mr. Ercha denied calling appellant a “big
mouth troublemaker” and explained that a former employee had once called appellant a
troublemaker and that he asked appellant whether he was bringing this on himself. Mr. Faneiullo
denied telling appellant that there were different safety rules for management or craft.
Appellant’s allegations are not supported by the statements of Ms. Morey or Mr. Ercha.
Appellant contends that the decision of the MSPB established administrative error on the
part of the employing establishment. The Board has carefully reviewed the decision, and finds
that it is not probative to his claim under the Act. The April 18, 2001 decision set aside a
determination of OPM denying appellant’s application for a disability retirement. The
administrative judge noted the disparity between the findings of the postal inspection and
appellant’s allegations concerning his underlying emotional condition. He stated that “deciding
which version is correct” was not important to determining appellant’s eligibility to disability
retirement benefits; what was important was appellant’s view of the alleged incidents.
Consequently, the administrative judge’s review of the claim was “solely from appellant’s
perspective.” He found that the perception of being in danger at work and that management had
done nothing to thwart the danger was very real to appellant. The administrative judge
determined that appellant’s relocation to sort parcels in a different area at the employing
establishment was not a reasonable accommodation, noting that “the coworker could, if he were
so inclined, readily locate the appellant and confront him.”
In proceeding under the Act, the Board has held that an employee must establish a factual
basis for his or her emotional condition claim and that mere perceptions of harassment or
14

Jimmy B. Copeland, 43 ECAB 339 (1991).

15

Michael Thomas Plante, 44 ECAB 510 (1993).

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discrimination will not support an award of compensation.16 The primary reason for requiring
factual evidence from the claimant in support of his or her allegations of stress in the workplace
is to establish a basis in fact for the contentions made, as opposed to mere perceptions, which in
turn may be fully examined and evaluated by the Office and the Board.17 While appellant’s
perceptions of dangers and threats at work were found sufficient to support his application for a
disability retirement, such perceptions have not been established as having a basis in fact by the
evidence of record presently before the Board. As his various allegations of threats by
Mr. Canada or Mr. Espinosa have not been established and his perceptions of other “dangers” at
work are vague, the finding by MSPB that the parcel sorting assignment was unreasonable lacks
adequate support in this proceeding under the Act. Appellant’s dissatisfaction with the
investigation of his complaints and his perceptions of threats must be considered self-generated.
He has not substantiated a compensable factor of employment.
CONCLUSION
The Board finds that appellant has not established that his emotional condition arose in
the course of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 25, 2008
Washington, DC

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

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

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

16

Charles E. McAndrews, 55 ECAB 711 (2004).

17

See Mary J. Summers, 55 ECAB 730 (2004); Paul Trotman-Hall, 45 ECAB 229, 236 (Groom, M.E.,
concurring).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, BROOKSHIRE POST
OFFICE, Brookshire, TX, Employer
__________________________________________

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

Docket No. 20-0800
Issued: November 4, 2021

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 February 28, 2020 appellant filed a timely appeal from a December 13, 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 required recovery of the overpayment by deducting
$423.52 from her continuing compensation payments every 28 days.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 13, 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
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 15, 2002 appellant, then a 50-year-old postmaster, filed an occupational disease
claim (Form CA-2) alleging that she sustained an emotional condition due to factors of her federal
employment. By decision dated December 19, 2002, OWCP accepted that she sustained a brief
period of aggravation of depression that had resolved. It found that appellant was entitled to wage loss compensation and medical benefits only for the period January 19, 2000 to
December 19, 2002.
Appellant filed a claim for compensation (Form CA-7) for disability from work during the
period January 19, 2000 to July 16, 2001. On February 14, 2003 OWCP paid her wage-loss
compensation totaling $6,920.70 for the period January 19, 2000 through July 16, 2001.
In a July 28, 2005 letter, appellant requested 164 hours of leave buy back. By decision
dated June 13, 2007, OWCP denied her claim for leave buy back.
In a preliminary determination also dated June 13, 2007, OWCP found that an overpayment
of compensation in the amount of $4,666.20 had been created because appellant was paid for 368
hours for the period January 19, 2000 through July 16, 2001 when she was only entitled to 120
hours. On July 12, 2007 appellant submitted a partially completed overpayment recovery
questionnaire (Form OWCP-20) and an overpayment action request in which she requested a
prerecoupment hearing. Following a preliminary review, by decision dated December 31, 2007,
an OWCP hearing representative set aside the June 13, 2007 preliminary overpayment
determination and remanded the case to OWCP.
On May 14, 2008 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $4,142.76 was created, for which appellant was
without fault. It explained that, based on pay rate information beginning January 31, 2001, it had
recomputed the amount of compensation appellant was entitled to for the period May 8 through
July 13, 2001 and determined that she was entitled to 148 hours of LWOP using the recurrent pay
rate of $1,126.19 per week which resulted in the amount of $2,777.94. OWCP noted that on
February 14, 2003 it had paid appellant $6,920.70 in compensation for 348 hours of LWOP when
she was only entitled to $2,777.94 for 148 hours of LWOP. Therefore, an overpayment of
compensation in the amount of $4,142.76 had been created.
On June 14, 2008 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. On November 25, 2008 OWCP provided her with
another Form OWCP-20 for her completion, noting that updated information was needed.
By decision dated January 29, 2009, an OWCP hearing representative finalized the
May 14, 2008 preliminary overpayment determination that an overpayment of compensation in
3

Docket No. 07-2336 (issued April 14, 2008).

2

the amount of $4,142.76 had been created because appellant had erroneously been paid FECA
compensation for the period May 8 through July 15, 2001 when she had also received sick leave
for this period. She found that appellant was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment because she had not completed a Form OWCP-20
or provided financial documentation to support waiver. The hearing representative required
recovery of the overpayment in full.
By decision dated December 13, 2019, OWCP found that an overpayment of compensation
with a current balance of $5,437.41 existed regarding debt No. xxxxxx243 in which she was
concurrently paid FECA compensation for the period May 8 through July 13, 2001. It noted that
a preliminary overpayment was issued on May 14, 2008 and that a final determination was issued
on January 29, 2009.4 OWCP had referred the debt to the Department of the Treasury for servicing
on July 31, 2009, and additional payments had been received. It explained that appellant was
currently in receipt of wage-loss compensation payments on the automated periodic rolls under
OWCP File No. xxxxxx135 in the amount of $423.52 every 28 days. OWCP noted that section
10.441 of its regulations provided that, when an overpayment had been made to an individual who
was entitled to further payments, the overpaid individual should refund the amount of the
overpayment as soon as the error was discovered, and that if no refund was made, OWCP should
decrease later payments, taking into consideration financial circumstances. It indicated that
appellant had failed to provide a requested overpayment recovery questionnaire and set recovery
at $423.52 every 28 days from appellant’s continuing compensation payments, effective
January 4, 2020.
LEGAL PRECEDENT
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.5
Section 10.441 of OWCP’s regulations provides that, when an overpayment of
compensation has been made to an individual who is entitled to further payments, the individual
shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to the same. If no refund is made, OWCP shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of

OWCP noted in its December 13, 2019 decision that “A preliminary finding of fault was issued on May 14, 2008
and a final determination was issued on January 29, 2009.” However, this appears to be a typographical error as
appellant was found without fault in the May 14, 2008 and January 29, 2009 decisions.
4

5

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

3

compensation, the financial circumstances of the individual, and any other relevant factors so as
to minimize hardship. 6
ANALYSIS
The Board finds that OWCP properly required recovery of the overpayment by deducting
$423.52 from appellant’s continuing compensation payments every 28 days.
Although appellant submitted a partially-completed overpayment recovery questionnaire
in response to the June 13, 2007 preliminary overpayment determination, she had not submitted a
completed questionnaire or supporting financial documentation prior to the December 13, 2019
decision. The overpaid individual is responsible for providing information about income,
expenses, and assets as specified by OWCP. 7 When an individual fails to provide the necessary
financial information, OWCP should follow minimum collection guidelines designed to collect
the debt promptly and in full. 8 The record supports that, in requiring recovery of the overpayment,
OWCP took into consideration the f actors set forth in 20 C.F.R. § 10.441 and found that this
method of recovery would minimize resulting hardship. Therefore, OWCP properly required
recovery of the overpayment by deducting $423.52 from his continuing compensation every 28
days.9
CONCLUSION
The Board finds that OWCP properly required recovery of the overpayment by deducting
$423.52 from appellant’s continuing compensation payments every 28 days.

6

Id.

7

20 C.F.R. § 10.438; see also A.F., Docket No. 19-0054 (issued June 12, 2019).

8

See B.A., Docket No. 20-0947(issued July 15, 2021); A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick
Arters, 53 ECAB 397 (2002).
9

See B.A., id.

4

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2021
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
New York, NY, Employer
__________________________________________

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

Docket No. 13-2152
Issued: March 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from an April 4, 2013 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on November 16, 2010.
FACTUAL HISTORY
On November 17, 2010 appellant, then a 40-year-old food service worker, filed a
traumatic injury claim (Form CA-1) alleging that on November 10, 2010 she injured the third
1

5 U.S.C. § 8101 et seq.

finger of her left hand when it got squeezed between the two crates in the cook tank while she
was raising the crates to remove the meat. Appellant’s supervisor noted on the claim form that
the injury occurred in the performance of duty. No evidence was submitted with the claim.
By letter dated April 27, 2012, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was afforded 30 days to respond. No evidence was submitted.
By decision dated May 31, 2012, OWCP denied appellant’s claim finding that a medical
condition had not been diagnosed in connection with the accepted injury and/or event. It noted
that no medical evidence had been received.
By letter dated December 31, 2012, appellant requested reconsideration of OWCP’s
decision. In an undated statement, she indicated that she injured her left middle finger herself
while hoisting a lift to empty a tank containing a cooked product. Appellant was taken to
Jamaica Hospital and received treatment for her injury, which included an x-ray, five stiches, a
tetanus shot and a prescription for pain medicine. She returned to her job and reported her injury
to the medical department, where she was told that all of the paperwork would be collected and
submitted to workers’ compensation. Appellant indicated that she submitted all the information,
but then started receiving bills from the hospital for payment rendered in connection with the
services rendered. She indicated that she turned all the bills over to the medical department.
Appellant did not realize that the medical department failed to file her workers’ compensation
claim until she was contacted by a law firm contracted by the hospital for payment. She
indicated that she resubmitted all the paperwork to the medical department again and her
workers’ compensation claim was finally submitted.
The hospital record and x-ray of appellant’s middle left finger dated November 16, 2010
from the Jamaica Hospital Center Emergency Department was submitted. Appellant presented
with a finger laceration, third finger, left. The history of injury provided was that, while lifting a
pot with meat, her finger was lacerated by the pot. A diagnosis of finger laceration from the
physician’s assistant, Nilkeshia Stephens, was provided.
By decision dated April 4, 2013, OWCP denied modification of its prior decision. It
found that, although a medical condition has been diagnosed in connection with the history of
injury provided with the reconsideration request, appellant provided differing histories of injury
on her claim form, on her reconsideration request, and to the hospital without an explanation as
to why differing histories were provided.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the

2

employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.5 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation, is causally related to the accepted injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2 at 1143 (1989).

5

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989).
6

See Elaine Pendleton, supra note 2.

7

Betty J. Smith, 54 ECAB 174 (2002).

8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

3

This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
In its May 31, 2012 decision, OWCP accepted that on November 16, 2010 appellant
injured the third finger of her left hand during the performance of her federal duties but denied
the claim on the grounds that she did not submit any medical evidence containing a diagnosis in
connection with the November 16, 2010 event. While it subsequently found a medical condition
had been diagnosed, it denied modification of the May 31, 2012 decision on the basis that
appellant provided differing histories of injuries on her claim form, to the hospital and with her
request for reconsideration.
The Board finds that appellant’s descriptions of her November 16, 2010 injury on her
claim form, to the hospital and with her request for reconsideration are consistent and do not cast
serious doubt on the validity of the claim. On her claim form dated November 17, 2010,
appellant indicated that on November 16, 2010 she was raising the crates in the cook tank to
remove the meat when she injured the third finger of her left hand as her finger was squeezed
between two crates. In the hospital emergency room report of November 16, 2010, appellant
stated that she was lifting a pot with meat when her finger was injured or, more specifically,
lacerated. In her reconsideration request, appellant again states that she injured her left middle
finger while “hoisting a lift to empty a tank containing a cooked product.” Appellant
consistently alleged that her injury to the third finger of her left hand occurred when her finger
was squeezed between crates while lifting or raising the container containing cooked food. This
is consistent with her duties as a food service worker. Additionally, the employing establishment
has not contested that an injury occurred during the performance of duty on November 16, 2010.
Thus, the Board finds that appellant’s statements regarding her November 16, 2010 injury are
consistent.
While OWCP found that a medical condition has been diagnosed in connection with the
event (i.e., a laceration), OWCP noted the diagnosis was provided by a physician’s assistant,
Nilkeshia Stephens in the November 16, 2010 hospital record. Healthcare providers such as a
nurse, acupuncturist, physician’s assistant and physical therapist are not defined as a physician
under FECA. These reports do not constitute competent medical evidence to establish a medical
condition, disability or causal relationship.10
However, the Board notes that OWCP procedures recognize that a claim may be accepted
without a medical report when the condition is a minor one which can be identified on visual

9

James Mack, 43 ECAB 321 (1991).

10

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

4

inspection, if the injury was promptly reported, no dispute exists regarding the occurrence and
the employee has no lost time from the injury.11
The facts of this case establish that appellant’s lacerated finger was a minor condition
which could be visualized. Appellant’s claim form also establishes that the injury was promptly
reported and the employing establishment acknowledged that the injury occurred in the
performance of duty. Furthermore, she has clarified that the claim is for medical expenses, not
disability. The Board therefore concludes that appellant has established that she sustained a
lacerated finger in the performance of duty on November 16, 2010. This case is remanded for
payment of medical expenses.
CONCLUSION
The Board finds that appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on November 16, 2010.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).
See also J.W., Docket No. 13-262 (issued April 23, 2013).

5


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

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

Docket No. 08-1876
Issued: May 22, 2009

Case Submitted on the Record

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

JURISDICTION
On June 23, 2008 appellant filed a timely appeal from the May 5, 2008 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative, who denied waiver of an
overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.1
ISSUE
The issue is whether the Office properly denied waiver of the $6,026.04 overpayment
that arose from appellant’s November 21, 2006 schedule award. On appeal, he argues that the
Office overlooked his bankruptcy when it denied waiver.

1

The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its May 5,
2008 decision. 20 C.F.R. § 501.2(c). The Board has no jurisdiction to review the documents appellant submitted on
appeal relating to credit and loan requests and to a 1999 discharge in U.S. Bankruptcy Court, as these documents were
not before the Office when it issued its final decision.

FACTUAL HISTORY
On July 29, 1994 appellant, then a 36-year-old letter carrier, twisted his left knee while
walking down steps in the performance of duty. The Office accepted his claim and on
November 21, 2006 issued a schedule award for 26 percent impairment of his left lower
extremity. On appeal,2 the Board found that appellant had no more than 23 percent impairment.
Following the Board’s decision, the Office issued a preliminary determination on
October 24, 2007 that appellant received a $6,026.04 overpayment from the November 21, 2006
schedule award. It explained how it arrived at that amount.3 The Office made a preliminary
finding that appellant was without fault in the creation of this overpayment.
Appellant requested a prerecoupment hearing before an Office hearing representative,
which was held on February 11, 2008. At the hearing, he noted that he had filed for bankruptcy.
Appellant’s wife was diagnosed with cancer in 1999, she lost her job and they filed for
bankruptcy. She passed away in 2004, before they were able to come out of bankruptcy.
Appellant testified about his income and expenses. He asked the hearing representative to take
into account that he was just coming out of bankruptcy.
In a decision dated May 5, 2008, the Office hearing representative found that appellant
was without fault in the creation of the overpayment. Based on the financial information
appellant provided, the hearing representative denied waiver on the grounds that appellant’s
monthly income exceeded his monthly expenses by over $2,000.00.
LEGAL PRECEDENT
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.4 The Office may consider waiving an
overpayment only if the individual to whom it was made was not at fault in accepting or creating
the overpayment.5 If the Office finds that the recipient of an overpayment was not at fault,
repayment will still be required unless: (1) adjustment or recovery of the overpayment would

2

Docket No. 07-463 (issued July 6, 2007).

3

The Office originally paid for 13 percent impairment. It then paid for an additional 8 percent impairment, or for
a total of 21 percent. When the Office determined that appellant had 26 percent impairment, it paid $9,479.16 for
the additional 5 percent. But, as the Board found, his impairment was actually 23 percent. So the correct payment
should have been $3,453.12 for the additional two percent. The difference between $9,479.16 and $3,453.12 was
the resulting overpayment.
4

5 U.S.C. § 8129(a).

5

20 C.F.R. § 10.433(a) (1999).

2

defeat the purpose of the Federal Employees’ Compensation Act or (2) adjustment or recovery of
the overpayment would be against equity and good conscience.6
A claimant’s obligation to repay an overpayment is forgiven if the bankruptcy court has
discharged the debt in a bankruptcy proceeding, unless the debt is found to be nondischargeable.7
ANALYSIS
Appellant does not dispute that he received an overpayment of compensation. The Office
paid him for 26 percent impairment of his left lower extremity. The Board, however, found that
appellant’s impairment was only 23 percent. So he received more compensation than he was
entitled to. Appellant does not dispute the amount of the overpayment, which the Office clearly
explained in its October 24, 2007 preliminary determination.8
Appellant contends that the Office hearing representative overlooked his bankruptcy
status in denying waiver. He submitted to the Board a bankruptcy document dated December 22,
1999 granting him a discharge. Appellant added that his financial situation was in grave
condition due to bankruptcy and the nation’s economy, and that he was no longer able to repay
the debt as the Office directed.
As noted, a claimant’s obligation to repay an overpayment is forgiven if the bankruptcy
court has discharged the debt in a bankruptcy proceeding. But appellant has submitted no
evidence that the $6,026.04 debt arising from the hearing representative’s May 5, 2008 final
decision was discharged by any bankruptcy court. He appears to argue that his bankruptcy and
discharge some years ago should continue to protect him against any future debts he might incur,

6

Id. at § 10.434. Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause
hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks
recovery needs substantially all of his current income (including compensation benefits) to meet current ordinary
and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data furnished by the Bureau of Labor Statistics. Id. at § 10.436. Under Office procedures, an
individual is deemed to need substantially all of his current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00. If this condition is met and
the individual’s nonexempt assets do not exceed $8,000.00 (the asset limit for an individual with one dependent),
recovery of an overpayment will defeat the purpose of the Act and warrant waiver. Waiver requires that both
conditions be met. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapters 6.0200.6.a(1), .6(a)(4) (October 2004). Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt. 20 C.F.R. § 10.437(a) (1999). Recovery of an overpayment is also considered to be
against equity and good conscience when any individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his position for the worse. Id. at § 10.437(b).
7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4.e(3) (May 2004).
8

The circumstances were a little complicated, but the math was straightforward. The Office made a direct
payment of $9,479.16 when it thought appellant’s impairment was 26 percent. But because his impairment was in
fact 23 percent, the Office should have paid only $3,453.12.

3

but he cites no provision of the U.S. Bankruptcy Code or any other authority to support such a
contention.
Although appellant was without fault in creating this overpayment, the Office is still
required to recover the debt unless: (1) recovery would defeat the purpose of the Act; or
(2) recovery would be against equity and good conscience. He reviewed his income and
expenses with the hearing representative during the February 11, 2008 hearing. Apart from that
portion of appellant’s daughter’s dental expenses covered by insurance, the hearing
representative essentially accepted every financial figure appellant provided. Because his
monthly income exceeded monthly expenses by well over $50.00, the hearing representative
properly found that appellant did not need substantially all of his current income to meet current
ordinary and necessary living expenses.9 Recovery of the overpayment will therefore not defeat
the purpose of the Act.
Neither is recovery considered to be against equity and good conscience. The financial
information does not support that appellant, with over $2,000.00 in disposable monthly income,
would experience severe financial hardship in attempting to repay the debt. Appellant made no
argument that he gave up a valuable right or changed his position for the worse in reliance on the
overpayment or on notice that the payment would be made.
As recovery of the overpayment will neither defeat the purpose of the Act nor be
considered against equity and good conscience, the Board will affirm the hearing
representative’s decision to deny waiver. The Office must recover the overpayment.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where the Office decreases later payments of compensation to which the individual
in entitled.10 The record does not establish that appellant is currently in receipt of continuing
compensation for his accepted injury. Therefore, the Office must recover the debt by other
means and the Board lacks jurisdiction to review the rate of recovery determined by the hearing
representative.11
CONCLUSION
The Board finds that the Office properly denied waiver of the $6,026.04 overpayment
that arose from appellant’s November 21, 2006 schedule award.

9

See note 6.

10

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

11

If appellant’s financial circumstances have changed since the Office’s May 5, 2008 decision such that he can no
longer make any payment on the debt, he may write to the district Office to request waiver of the balance. But as
before, it would be his burden of proof to submit the financial documentation or other evidence necessary to
establish that further recovery would defeat the purpose of the Act or be against equity and good conscience, as
those phrases are defined in note 6 above.

4

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redbank, NJ, Employer
__________________________________________

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Appearances:
Thomas Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1110
Issued: November 8, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from an October 16, 2006 decision of
an Office of Workers’ Compensation Programs’ hearing representative, who affirmed a schedule
award decision dated March 2, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of his
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On August 8, 2001 appellant, then a 42-year-old mail carrier, sustained injury to his right
index finger when it became trapped between the metal slats of the rear door of his motor
vehicle. He stopped work on August 8, 2001. The Office accepted appellant’s claim for right
index finger fracture, crushing injury of the right index finger and nail bed laceration of right

index finger. The Office authorized surgical reconstruction and physical therapy. Appellant
received appropriate compensation benefits.
On June 14, 2003 appellant requested a schedule award. In a March 25, 2003 report,
Dr. David Weiss, an osteopath and orthopedic surgeon, noted appellant’s history of injury and
treatment, which included a right medial and radial nerve block to the right wrist; irrigation and
debridement of the skin, subcutaneous tissue tendon and bone; osteotomy of the distal phalanx;
local flap rotation advancement; and a nail bed repair of the right index finger. He also noted
that appellant had pain and that his activities of daily living were affected. Dr. Weiss advised
that appellant had pain on a scale of 5 out of 10, while prior to the accident, appellant had no
pain. He referred to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides) and advised that for the amputation to the right
index finger distal phalanx (DP) appellant was entitled to an impairment of 10 percent.1 For the
transverse sensory loss to the distal tuft index, he advised that 10 percent to the digit translated to
3 percent.2 For range of motion, Dr. Weiss advised that right index metatarsal phalangeal (MP)
joint extension equated to 10 percent3 and that right index proximal interphalangeal (PIP) joint
flexion equated to 6 percent.4 He indicated that the range of motion deficit of the right index
distal interphalangeal (DIP) joint flexion equated to 26 percent.5 Dr. Weiss opined that the
combined index digit impairment equated to 46 percent or 9 percent to the hand and that the
range of motion deficit for the right middle finger DIP flexion was equal to 26 percent or 5
percent to the hand. He also provided findings for the range of motion deficits of appellant’s
other fingers, and determined that appellant had 20 percent impairment to the hand or total
combined right upper extremity impairment of 26 percent. Dr. Weiss also noted that appellant
had a pain-related impairment of 3 percent which he combined with the 26 percent for the right
upper extremity and determined that appellant had a total right upper extremity impairment of 29
percent. He advised that appellant reached maximum medical improvement on March 25, 2003.
By letter dated January 28, 2005, the Office referred appellant for a second opinion to
Dr. Irving Strouse, a Board-certified orthopedic surgeon. In a February 22, 2005 report,
Dr. Strouse noted appellant’s history of injury and treatment and noted findings on examination.
He noted that appellant had a compound fracture distal phalanx right index finger with partial
amputation. Regarding impairment, Dr. Strouse referred to the A.M.A, Guides and a 20 percent
impairment to the right index finger for amputation of the distal phalanx,6 a 10 percent
impairment to the right index finger for partial sensory loss of the tip,7 and 3 percent to the right
index finger due to loss of full extension of the proximal interphalangeal joint of the right index
1

A.M.A., Guides 443, Figure 16-5.

2

Id. at 448, Table 16-7.

3

Id. at 464, Figure 16-25.

4

Id. at 463, Figure 16-23.

5

Id. at 461, Figure 16-21.

6

Id. at 443, Figure 16-5.

7

Id. at 447, Table-16-5.

2

finger.8 He determined that the combined value equated to 30 percent of the right index finger or
6.5 percent of the right hand and advised that appellant reached maximum medical improvement.
In a June 22, 2005 report, the Office medical adviser noted appellant’s history of injury
and treatment, including that maximum medical improvement was reached on February 22,
2005, the date of Dr. Strouse’s final report. He referred to the A.M.A., Guides and noted 20
percent impairment for the amputation to his finger according to Figure16-5.9 Regarding sensory
loss, the Office medical adviser determined that appellant had 10 percent impairment pursuant to
Figure 16-5.10 Dr. Strouse provided an additional three percent for loss of extension according to
Figure16-21.11 The Office medical adviser noted that this resulted in a combined percentage of
30 percent which equated to an impairment of 6 percent to the hand or 5 percent to the right
upper extremity.12
On August 26, 2005 the Office granted appellant a schedule award for five percent
impairment of the right upper extremity. The award covered a period of 15.60 weeks from
June 14 to October 1, 2003.
By letter dated September 13, 2005, appellant requested a hearing. On November 23,
2005 the Office hearing representative determined that the case was not in posture for a hearing
due to a conflict in medical opinion between Dr. Weiss, Dr. Strouse and the Office medical
adviser regarding the extent of impairment. The Office hearing representative directed that the
Office refer appellant for an impartial medical examination. The Office hearing representative
vacated the Office’s August 26, 2005 schedule award.
On January 24, 2006 the Office referred appellant for an impartial medical examination
to Dr. Robert Dennis, a Board-certified orthopedic surgeon. In a February 13, 2006 report,
Dr. Dennis reviewed the history of injury and set forth findings on examination. He stated that
appellant sustained a partial amputation of the distal tip and pulp of the index finger of the right
hand, a fracture of the distal phalanx and a four millimeter distal amputation of the bone.
Dr. Dennis explained that the index finger was very important for pinch and sensation and noted
that he had taken this into consideration. He added that he had given the maximum benefit by
assuming that there was an amputation just above the DIP joint of the index finger, despite the
surgical repair. Dr. Dennis also advised that appellant sustained a crush injury and laceration of
the nail bed, which was repaired with some re-growth of the nail and some deformity. He also
noted that a plastic surgical repair preserved the majority portion of the tip of the index finger.
Dr. Dennis referred to Table 16-413 and advised that this table summarized the worst case
scenario which would be an amputation. Regarding the index/middle finger, at the DIP joint, a
8

Id. at 461, Figure 16-21.

9

Id. at 443.

10

Id. at 44.

11

Id. at 461.

12

Id. at 438, 439, Table 16-2, Table 16-1.

13

Id. at 440.

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complete amputation would represent a 45 percent functional loss of the digit which would
convert to a 6 percent functional loss of the hand, or a 5 percent impairment of the right upper
extremity. Dr. Dennis noted that Dr. Weiss’ findings were “redundant” and “overlapped.” He
further noted that, assuming that the amputation was not repaired, appellant could not receive
greater than a six percent impairment of the hand, which converted to a five percent impairment
of the right upper extremity.14
In a March 1, 2006 report, the Office medical adviser reviewed the reports of Dr. Dennis.
He agreed that appellant had sustained a five percent permanent impairment to the right upper
extremity.15
By decision dated March 2, 2006, the Office found that appellant had no more than five
percent loss of use of the right arm, as was previously awarded.
By letter dated March 7, 2006, appellant’s representative requested a hearing, which was
held on June 30, 2006. By letter dated August 15, 2006, appellant’s representative enclosed a
statement from appellant. Appellant described his injury and how his activities of daily living
were affected by the injury.
By decision dated October 16, 2006, the Office hearing representative affirmed the
Office’s March 2, 2006 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act16 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.17 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.18 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.19
Section 8123(a) of the Act provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”20 Where a case is
14

Id. at 439 and 438, Table 16-1 and 16-2.

15

Id. at 442, Figure 16-3; 438, Table 16-1; 439, Table 16-2.

16

5 U.S.C. §§ 8101-8193.

17

5 U.S.C. § 8107.

18

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

19

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

20

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan, 45
ECAB 207, 210 (1993).

4

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.21
ANALYSIS
The Office accepted that appellant sustained a right index finger fracture, crushing injury
of the right index finger and nail bed laceration of right index finger in the performance of duty.
The Office authorized surgical reconstruction and physical therapy. On November 23, 2005 the
Office hearing representative determined that a conflict in medical opinion arose between the
reports of appellant’s treating physician, Dr. Weiss, and the second opinion physician,
Dr. Strouse, and an Office medical adviser regarding the extent of impairment. On January 24,
2006 the Office referred appellant for an impartial medical examination with Dr. Robert Dennis,
a Board-certified orthopedic surgeon.
In a February 13, 2006 report, Dr. Dennis noted appellant’s history and listed findings on
examination. He noted that to give appellant the maximum benefit of the doubt, he assumed that
there was an amputation just above the DIP joint of the index finger, despite the surgical repair.
Dr. Dennis referred to Table 16-422 and explained the worst case scenario for the index/middle
finger, at the DIP joint, would be a complete amputation and it would equate to 45 percent
functional loss of the digit which he converted to 6 percent functional loss of the hand, or 5
percent impairment of the right upper extremity. However, according to Table 16-1, the Board
notes that 45 percent impairment of the index or middle finger represents 9 percent impairment
of the hand.23 It appears that Dr. Dennis inadvertently looked at the column for the ring or little
finger, instead of the column for the index or middle finger. Accordingly, pursuant to Table
16-2, this represents eight percent impairment of the right upper extremity.24 The Board finds
that the thorough and rationalized report of Dr. Dennis is entitled to special weight. Dr. Dennis
explained why he believed that appellant should receive the maximum benefit for the
amputation. Appellant has eight percent impairment to the right arm.
The Office medical adviser, on March 1, 2006, opined that appellant had five percent
impairment of the right arm. He noted that he differed with Dr. Dennis because he did not think
the level of amputation warranted the degree of impairment found by Dr. Dennis. However, the
Board has held that, where a medical conflict is present, to properly resolve the conflict, it is the
impartial medical specialist who should provide a reasoned opinion as to a permanent
impairment to a scheduled member of the body in accordance with the A.M.A., Guides. An
Office medical adviser may review the opinion, but the resolution of the conflict is the
21

See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel
Milton, 37 ECAB 712, 723-24 (1986).
22

Supra note 1 at 440.

23

Id. at 438.

24

The Board notes that the Office medical adviser translated Dr. Dennis’ findings and arrived at five percent to
the right upper extremity. Neither physician appeared to notice the translation error. However, since the Board is
modifying based on the actual value, this is harmless error.

5

responsibility of the impartial medical specialist.25 If the impartial specialist’s opinion as to
permanent impairment is in accordance with the A.M.A., Guides, then his report should be given
the weight of medical opinion.26 As noted, Dr. Dennis’ report establishes that appellant has eight
percent impairment of his right arm pursuant to the A.M.A., Guides.
Accordingly, the Board finds that appellant has no more than eight percent permanent
impairment of the right arm.
CONCLUSION
The Board finds that appellant had no more than an eight percent impairment to the right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2006 is affirmed, as modified.
Issued: November 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

25

Thomas J. Fragale, 55 ECAB 619 (2004); see Richard R. LeMay, 56 ECAB ___ (Docket No. 04-1652, issued
February 16, 2005).
26

Richard R. LeMay, supra note 25.

6