United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING, Washington DC,
Employer
__________________________________________

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

Docket No. 18-1609
Issued: March 7, 2019

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant filed a timely appeal from a July 26, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left foot condition
causally related to the accepted November 14, 2017 employment incident.
FACTUAL HISTORY
On November 20, 2017 appellant, then a 43-year-old offset pressman, filed a traumatic
injury claim (Form CA-1) alleging that, on November 14, 2017, he injured his left foot while in
1

5 U.S.C. § 8101 et seq.

the performance of duty. He reported that, while walking down steps on a catwalk, he felt pain in
his left foot which increased throughout the day.
On November 18, 2017 appellant sought treatment from Dr. Taira C. Everett, Boardcertified in internal medicine, and Dr. Peter Su, a Board-certified family practitioner. Neither
physician found a stress fracture based on x-rays.
On November 18, 2017 Dr. Scott W. Nutter, Board-certified in podiatric medicine and
surgery, reported that on November 14, 2017 appellant had developed left foot pain while coming
down a catwalk from the eight-foot press. By the end of the day, he could not walk. Dr. Nutter
found mild edema in appellant’s left forefoot with the maximum pain near his second metatarsal.
He noted that appellant wore steel-toed shoes. Dr. Nutter diagnosed sprained forefoot and possible
metatarsal stress fracture. On November 28 and December 8, 2017 he diagnosed sprained left
forefoot and possible stress fracture. Dr. Nutter attributed appellant’s condition to stepping down
steps/catwalk. He indicated by checking a box marked “yes” that he believed that appellant’s
condition was caused or aggravated by his employment activity.
In a report dated November 22, 2017, Dr. Richard Chang, a family practitioner, examined
appellant and diagnosed pain in the left foot.
By development letter of February 23, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the medical and factual evidence
necessary and provided a questionnaire for completion. OWCP afforded 30 days for the
submission of additional evidence. On March 22, 2018 appellant requested an extension of time
to comply with this request.
By decision dated March 28, 2018, OWCP denied appellant’s traumatic injury claim,
finding that he had not established fact of injury as he failed to respond to the questionnaire and
explain how the November 14, 2017 employment incident occurred. It further found that he had
not provided medical evidence establishing a diagnosed medical condition causally related to the
November 14, 2017 employment incident.
On May 1, 2018 appellant requested reconsideration of the March 28, 2018 decision and
provided additional evidence. On November 20, 2017 Dr. Nutter examined appellant due to a
November 14, 2017 left foot injury at work. He reported that appellant was coming down from a
catwalk off a press and felt immediate pain in his left foot. Dr. Nutter diagnosed sprained forefoot
and possible metatarsal stress fracture. During an examination on February 8, 2018 appellant
reported no further left foot pain and Dr. Nutter found no edema on examination.
Also on May 1, 2018 appellant submitted a completed OWCP development questionnaire.
He noted that, while descending from the upper catwalk steps, he felt pain in his left foot which
increased throughout the day. Thereafter, appellant was unable to work for three days. He noted
that he had previously been diagnosed with gout in his left toe and cellulitis.
By decision dated July 26, 2018, OWCP modified the March 28, 2018 decision to find fact
of injury, but denied the claim based on a lack of medical evidence establishing causal relationship
between his accepted November 14, 2017 employment incident and his diagnosed left foot
conditions.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation,3 that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left foot
condition is causally related to the accepted November 14, 2017 employment incident.
Appellant sought treatment on November 18, 2017 from Dr. Nutter who diagnosed left
forefoot sprain. He completed form reports and checked a box marked “yes” indicating that the
condition was caused or aggravated by the employment. The Board has held that an opinion

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

6

A.D., id.; T.H., 59 ECAB 388 (2008).

7

J.P., Docket No. 18-1165 (issued January 15, 2019).

8

A.D., supra note 5; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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consisting only of a checkmark notation supporting causation, without supporting medical
rationale, is of limited probative value and insufficient to establish causal relationship.9
There is no other medical evidence of record supporting causal relationship between
appellant’s left foot condition and his November 14, 2017 employment incident. Neither Dr. Su
nor Dr. Everett provided an opinion as to whether appellant’s left foot condition was causally
related to the accepted employment incident. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.10 These reports are, therefore, insufficient to establish appellant’s
claim. It is further noted that Dr. Chang only diagnosed foot pain.
The Board has consistently held that pain is a symptom and not a compensable medical
diagnosis.11 Without a clear diagnosis, Dr. Chang’s report is of limited probative value in
establishing appellant’s traumatic injury claim.12
As appellant has not submitted sufficiently rationalized medical evidence to support his
allegation that he sustained an injury causally related to the accepted November 14, 2017
employment incident, he has not met his burden of proof to establish a claim.
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 has not met his burden of proof to establish a left foot
condition causally related to the accepted November 14, 2017 employment incident.

9

K.R., Docket No. 18-1388 (issued January 9, 2019).

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

See K.V., Docket No. 18-0723 (issued November 9, 2018); B.P., Docket No. 12-1345 (issued November 13,
2012); C.F., Docket No. 08-1102 (issued October 2008).
12

E.K., Docket No. 18-0091 (issued April 6. 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MINNEAPOLIS VETERANS MEDICAL
CENTER, Minneapolis, MN, Employer
__________________________________________

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

Docket No. 16-1010
Issued: October 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2016 appellant filed a timely appeal from a December 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to an October 30, 2014 employment incident.
FACTUAL HISTORY
On November 7, 2014 appellant, then a 59-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1), alleging that on October 30, 2014 he sustained a left shoulder strain
when he transferred a patient from a bed to a chair. He stated that the patient fell onto his
1

5 U.S.C. § 8101 et seq.

shoulder causing pain that ran down from his ear to his shoulder and arm. Appellant did not stop
work.
Appellant submitted an October 31, 2014 left shoulder x-ray which revealed a chronic
rotator cuff injury. He was treated by a physician assistant on October 31, 2014, for a work
injury to his left shoulder. Appellant reported that on October 30, 2014 he was assisting a patient
transfer from his bed to a chair when the patient fell backwards injuring his neck and causing left
shoulder pain. The physician assistant noted findings and diagnosed a work injury to the left
shoulder.
On November 13, 2014 appellant was treated in follow-up for increasing left shoulder
pain and difficulty with movement and weakness. The physician assistant noted decreased left
shoulder range of motion and diagnosed left rotator cuff injury at work. She placed appellant on
light duty.
A December 11, 2014 magnetic resonance imaging (MRI) scan of the left shoulder
revealed fluid signal in the subacromial/subdeltoid bursa consistent with bursal surface tendon
fraying, reticulated fluid signal consistent with edema in the lateral acromion possibly related to
prior trauma, and fluid signal surrounding the extra-articular biceps tendon consistent with mild
tenosynovitis. Appellant underwent physical therapy for the left shoulder from November 26,
2014 to June 25, 2015.
On June 23, 2015 appellant was treated by Dr. Charles E. Kelly, a Board-certified
internist, for neck and upper back pain. He reported that he developed neck and left arm
symptoms on November 30, 2014 at work while transferring a patient from a bed to a chair.
Dr. Kelly noted that appellant was referred for physical therapy, but his symptoms persisted. He
noted findings on examination of limited range of motion of the neck, intact strength testing of
the grip, pinch, finger abduction, intact bilateral wrist, elbow and shoulder extension, intact
sensation of the right arm, disturbed sensation of the left arm on the lateral surface of the forearm
and hand, reflexes were equal and symmetrical, and tenderness of the left trapezius muscle.
Dr. Kelly diagnosed nonspecific cervical spine pain, shoulder pain of uncertain etiology, and
deconditioning syndrome. He recommended a short-term active rehabilitation program.
Dr. Kelly made no changes to the current work restrictions.
By letter dated September 16, 2015, OWCP noted that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work, and
payment of a limited amount of medical expenses was administratively approved without
considering the merits of the claim. It noted that it was reopening the claim for further
consideration and advised appellant of the type of evidence needed to establish his claim,
particularly requesting that he submit a physician’s reasoned opinion addressing the relationship
of his claimed condition and specific employment factors.
Appellant submitted a September 28, 2015 statement and noted that he still had residuals
of his October 30, 2014 injury. He reported that he had an “additional injury,” noting that he
broke his left arm due to residual weakness. Appellant advised that he could not use his left arm
to hold onto a banister while descending steps because of his work injury, and fell fracturing his
left arm.

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Appellant underwent physical therapy on November 26, 2014 to June 23, 2015 for neck
and left trapezius pain. He was treated by a physician assistant on January 9, 2015, for a left
shoulder injury which occurred after a lifting incident at work on “November 30, 2014.”
Appellant reported radiation and pain in the lateral neck region and limited range of motion and
strength. The physician assistant diagnosed left upper extremity pain most consistent with
cervical radiculopathy, shoulder impingement, and rotator cuff tendinopathy. On May 14, 2015
appellant presented with worsening neck and shoulder pain. The physician assistant diagnosed
rotator cuff injury left, sequela, left shoulder pain in the neck on left side, and referred appellant
for physical therapy.
In a program status report dated July 21, 2015, Dr. Kelly indicated that appellant was
evaluated but did not complete the physical therapy program. He noted that appellant completed
one session and did not finish due to insurance issues. Appellant was treated in the emergency
room by a nurse on August 20 and 23, 2015 for a left upper arm fracture and wrist sprain.
In a December 10, 2015 decision, OWCP denied appellant’s claim because he failed to
establish that he sustained an injury or medical condition causally related to accepted work
events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4

2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS
It is undisputed that on October 30, 2014 appellant was transferring a patient from his bed
to a chair and the patient fell backwards into his left shoulder. However, the Board finds that he
has not submitted sufficient medical evidence to establish that this work incident caused or
aggravated his diagnosed left shoulder and neck conditions.
Appellant was treated by Dr. Kelly on June 23, 2015 for neck and upper back pain which
he noted had developed on November 30, 2014 while transferring a patient from his bed to a
chair. Dr. Kelly noted findings and diagnosed nonspecific cervical spine pain, shoulder pain of
uncertain etiology and deconditioning syndrome. Regarding causal relationship, his report
merely repeats the history of injury as reported by appellant without providing his own opinion
regarding whether appellant’s medical condition was work related. This report also indicated
that the etiology of the left shoulder pain was unknown. To the extent that Dr. Kelly is providing
his own opinion, the physician failed to provide a rationalized opinion regarding the causal
relationship between appellant’s left shoulder and neck conditions and the work incident
believed to have caused or contributed to such condition.5 The report is also of diminished
probative value as it is based on an inaccurate history as Dr. Kelly reports that the claimed injury
occurred on November 30, 2014 while the record indicates that the employment incident
occurred on October 30, 2014. Therefore, this report is insufficient to meet appellant’s burden of
proof. Dr. Kelly’s July 21, 2015 program status report is also insufficient to establish the claim
as Dr. Kelly did not address the cause of appellant’s claimed condition.6
Other evidence submitted by appellant included reports from a physician assistant and
reports from a nurse and physical therapy notes dated November 26, 2014 to June 23, 2015. The
Board has held that treatment notes signed by a physician assistant,7 nurse or physical therapist
are not considered medical evidence as these providers are not considered physicians under
FECA8 and are therefore not competent to render a medical opinion under FECA. Thus, this
evidence is insufficient to meet appellant’s burden of proof.
The remainder of the medical evidence fails to provide an opinion on the causal
relationship between appellant’s job and his diagnosed left shoulder condition. For this reason,
this evidence is insufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
5

Id. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon
an incomplete history have little probative value).
6

See M.B., Docket No. 16-0884 (issued September 8, 2016) (causal relationship not addressed).

7

See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as
medical evidence).
8

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).

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sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.9 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
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 meet his burden of proof to establish an injury
causally related to an October 30, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, LITTLE ROCK
PROCESSING & DISTRIBUTION CENTER,
Little Rock, AR, Employer
__________________________________________

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Appearances:
Paul Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1721
Issued: June 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 14, 2019 appellant, through counsel, filed a timely appeal from a June 17, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition while in the performance of duty on September 29, 2017, as alleged.
FACTUAL HISTORY
On October 25, 2017 appellant, then a 67-year-old mail handler equipment operator, filed
a traumatic injury claim (Form CA-1) alleging that on September 29, 2017 he developed
“emotional stress” as a result of being fired and having the postal inspectors and local police called
on him while in the performance of duty. He stopped work on October 24, 2017.
In an October 25, 2017 statement, appellant noted that on September 29, 2017 he had a
meeting at 8:00 a.m. and during the meeting protested disparate treatment by kneeling on one knee.
He noted that M.E., a supervisor for distribution operations, ended the meeting abruptly. Appellant
indicated that 10 minutes later M.E. called him back into the office and told him to punch off the
clock because he was fired for protesting in the meeting. He reported that he refused to punch off
the clock so M.E. called the local police and postal inspectors. Appellant explained that since that
incident he had not been able to sleep or eat and had nightmares, constipation, headaches, anxiety,
anger, and impotency. He noted that his doctor had informed him that he had post-traumatic stress
disorder (PTSD). Appellant indicated that he was returned to work because the employing
establishment had violated his constitutional rights, but he was put in an environment where the
“big guns” were watching him.
In an October 24, 2017 note, Dr. Derek Lewis, a Board-certified family practitioner,
requested that appellant be excused from work from October 24 through November 7, 2017 due
to a medical illness.
In a development letter dated October 30, 2017, OWCP advised appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and provided a questionnaire for completion. OWCP
also asked appellant to provide witness statements or evidence from anyone who could verify his
allegations and explain how the incidents had caused or contributed to his condition. It afforded
him 30 days to provide the necessary information.
In a separate letter, also dated October 30, 2017, OWCP requested that the employing
establishment provide details regarding appellant’s claim and whether they concurred with his
allegations.
Appellant submitted a November 6, 2017 work status note and attending physician’s report
(Form CA-20) by Dr. Lewis who noted a September 29, 2017 date of injury and described that a
“traumatic event triggered [patient’s] PTSD.” He explained that appellant was arrested and
dragged out of his workplace because he “took a knee.”
By decision dated November 30, 2017, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that he actually experienced the
September 29, 2017 incident, as alleged, and therefore had not established the factual component

2

of fact of injury. It noted that he had failed to respond to OWCP’s October 30, 2017 development
letter or complete the attached questionnaire.
Following the decision, OWCP received a November 15, 2017 statement from appellant’s
supervisor, M.E. M.E. explained that on September 28, 2017 appellant was on the clock eating
breakfast in the breakroom when he instructed appellant to load the “northwest ark truck.” He
alleged that appellant began to argue with him and he informed appellant that if he did not follow
instructions then he would end appellant’s tour. M.E. noted that on September 29, 2017, during
the daily five-minute “stand up meeting” at the beginning of the tour, appellant knelt down in
protest and extended his left arm straight up in the air with his fist clenched. He indicated that he
went back to his office and sent two e-mails. M.E reported that after approximately 10 minutes he
requested that appellant come into his office. He noted that he informed appellant that he was
giving him an “Official Discussion” concerning his actions during the meeting. M.E. asserted that
appellant threatened to “hit,” “beat,” and “murder” him. He indicated that he told appellant that
he was ending his tour and that he needed to leave. M.E. explained that when appellant refused to
leave, he contacted the local police department and the postal inspectors.
On December 14, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.3 He also submitted his completed development
questionnaire, wherein he noted that on September 28, 2017 he was verbally assaulted by M.E.
who told him to shut up or else he would be fired. Appellant indicated that after the incident he
was too nervous and upset to perform his duties as a forklift driver. He also described that on
September 29, 2017 he was put in nonpay status because he knelt down during a meeting in protest
of disparate treatment. Appellant noted that the local police and postal inspectors were called and
he was escorted out of the building. He reported that the postal inspectors came to his house later
that same day to retrieve his keys and badge, which humiliated him in front of his neighbors.
Appellant asserted that he experienced nightmares, sleepless nights, panic attacks, and anger
attacks following the September 29, 2017 events.
Appellant also submitted additional evidence, including witness statements. In an undated
handwritten statement, J.M., a tour II group leader, stated that during a stand-up talk by M.E. on
September 29, 2017 he observed appellant kneel down on one knee and raise his hand in protest
at the way that he had been treated. He indicated that approximately 20 minutes later M.E. stormed
out of his office toward appellant, who was driving a forklift, and ordered him off the clock. J.M.
noted that he did not hear appellant threaten or make any kind of gesture toward M.E.
In an October 2, 2017 e-mail, A.T., an OSS In-Plant support, indicated that on
September 28, 2017 M.E. informed him that he had a problem with appellant and that if appellant
did anything else then he would put appellant off the clock. He explained that around 9:30 a.m.
he observed M.E. lean into appellant’s face to speak to him and that appellant did not appear to
like what M.E. had said. A.T. confirmed that this was not the first time that M.E. had singled out
a certain individual because M.E. thought that individual had been on break more than the allotted

3

In a December 27, 2017 letter, appellant requested to withdraw his request for an oral hearing. By decision dated
December 28, 2017, OWCP’s Branch of Hearings and Review granted appellant’s request to withdraw his hearing
request.

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time. He explained that most of the issues concerning employees at the employing establishment
postal annex were a result of M.E.
In an October 3, 2017 handwritten statement, T.B. indicated that on “October 28, 2017”
M.E. entered the breakroom and instructed appellant to get out of the breakroom and onto the
workroom floor. She explained that from her perspective as a supervisor his behavior was very
unprofessional and created a hostile work environment. T.B. confirmed that on “October 29,
2017” appellant knelt in protest during a meeting without saying a word.
In an October 3, 2017 statement, J.M. explained that on September 28, 2017 he was in the
breakroom when he observed M.E. yell at appellant to go to work. He indicated that M.E. yelled
at appellant to “shut up” or he would put him off the clock and fire him right then. J.M. stated that
he thought M.E.’s behavior was very unprofessional and should not be tolerated in the employing
establishment.
OWCP received an employing establishment standard grievance form dated September 28,
2017 by appellant. Appellant described that on that date M.E. yelled at him in the breakroom in
front of several employees and threatened to fire him. He asserted that he felt threatened by M.E.’s
racial overtone in his words and that he feared for his safety, his job, and his life. Appellant also
alleged that M.E. had continually stalked and harassed him since a previous altercation.
Appellant also submitted an October 3, 2017 standard grievance form which described an
incident when M.E. informed the postal inspector that appellant had threatened to kill him. The
standard grievance form noted that a witness, J.M., had informed the postal inspectors that
appellant had not made any threatening motion or said that he was going to kill M.E.
Appellant submitted an agreement to mediate letter dated December 5, 2017. He also
provided a December 5, 2017 no agreement letter, which indicated that appellant and M.E. had
appeared for their scheduled mediation, but they were unable to find a resolution to their dispute.
On January 3, 2018 appellant requested reconsideration and submitted additional evidence.
In a December 21, 2017 narrative report, Dr. Kenneth Counts, a clinical psychologist and
neuropsychologist, indicated that appellant was experiencing low energy levels, anxiety, and
worry and was having difficulty with concentration, memory, and sleeping at night. He diagnosed
adjustment disorder with mixed anxiety and depressed mood. Dr. Counts opined that the cause of
his current condition was the trauma that he experienced at work and being unable to continue to
work and suffering both financially and emotionally.
OWCP also received a September 29, 2017 letter from M.E. to appellant, which advised
appellant that he had been placed on emergency nonpay, off-duty status due to allegations of
improper conduct and that the allegations would be pending an investigation. An October 13,
2017 letter from the employing establishment to appellant also informed him that an investigative
interview was scheduled for October 17, 2017.
By decision dated April 5, 2018, OWCP modified the November 30, 2017 decision finding
that the factual evidence of record had established that the September 29, 2017 events had

4

occurred, as alleged. However, it denied appellant’s claim finding that he had not established a
compensable employment factor as the cause of his alleged emotional condition.
On April 4, 2019 appellant, through counsel, requested reconsideration.
Appellant submitted additional evidence in support of his reconsideration request. In a
statement dated January 9, 2019, he contended that the employing establishment took two
individuals from a three-person job and asked him to do the work of three. Appellant explained
that he worked under duress and the daily pressure to perform the job of three men or he would be
fired. He also asserted that M.E. bullied, harassed, and stalked him daily to the point that he now
suffered from anxiety, depression, PTSD, and depressive disorder. Appellant further explained
that while low mail volume affected the mail clerks, it had not affected a mail handler’s job of
loading trucks, bulk mail containers (BMC), and pallets because the same amount of pallets were
loaded onto a truck no matter how much mail is on them.
In an October 24, 2017 statement, J.M., explained that he was a mail handler and union
steward and asserted that M.E. abused his power daily from August to September 2017 to threaten,
bully, and harass appellant into performing the work of three individuals. He explained that he
had advised appellant to file a grievance with the postal inspector because he saw appellant suffer
from depression, anxiety, and panic attacks from the duress and pressure from M.E. J.M. indicated
that he was present on September 29, 2017 when appellant knelt down on one knee during a
meeting and described M.E.’s subsequent actions towards appellant. He explained that M.E.
became agitated and called the local police and postal inspectors. J.M. reported that he was also
present when the postal inspectors came to appellant’s home. He noted that appellant was very
upset and had a panic attack.
In an October 24, 2017 letter, J.W., appellant’s coworker at the employing establishment’s
annex, indicated that he worked with appellant and had observed him being ordered to perform the
work of two or three workers due to downsizing of the workforce and excessing of jobs. He
explained that the low mail volume had not affected appellant’s job in loading trucks because
appellant still had to load the same amount of BMC’s, wires, pallets, and cages whether or not they
were full. J.W. reported that M.E. had threatened, bullied, and stalked appellant. He observed that
appellant started having panic attacks, anxiety, depression, and could not function due to the duress
and pressure from M.E.
OWCP also received additional progress notes dated March 15 to June 18, 2018 by
Dr. Counts who reported a diagnosis of adjustment disorder with mixed anxiety and depressed
mood. In narrative reports dated May 24 to November 14, 2018, Dr. Counts noted that appellant
had felt bullied and threatened, and the work environment was hostile. He opined that appellant
had significant job-related stress that caused a deteriorating effect on his mood, thought, and
behavior. Dr. Counts reported that appellant’s work-related injury had not resolved nor improved
and that appellant was unable to work at that time due to his mood disorder.
Appellant submitted a February 23, 2016 settlement agreement. It specifically noted that,
by entering into this settlement agreement, neither party had waived its respective position. A
February 23, 2016 letter also noted that both parties had mutually agreed that appellant would be
paid back for 96 hours.

5

OWCP received an August 10, 2017 letter from the employing establishment to appellant,
which informed him that due to a loss of mail volume a job held by a senior employee was
abolished and he needed to submit an in-section bidding sheet.
By decision dated June 17, 2019, OWCP denied modification of the April 5, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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 is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.8 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.9 On the other hand, the disability
is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.10

4

5 U.S.C. § 8101 et seq.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
9

L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

6

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.11 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.12
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.13
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.14
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.15
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.16 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.17 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence which has been submitted.18
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he sustained an emotional condition as a result of a number of
employment incidents and work conditions. OWCP denied his emotional condition claim finding
that he had not established a compensable employment factor. The Board must, therefore, initially

11

See G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170-71 (2001), 52
ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 556 (1991).
12

See O.G., Docket No. 18-0359 (issued August 7, 2019); D.R., Docket No. 16-0605 (issued October 17, 2016);
William H. Fortner, 49 ECAB 324 (1998).
13

B.S., Docket No. 19-0378 (issued July 10, 2019); Ruth S. Johnson, 46 ECAB 237 (1994).

14

T.G., Docket No. 19-0071 (issued May 28, 2019); Marlon Vera, 54 ECAB 834 (2003).

15

Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

16

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

17

L.S., Docket No. 18-1471 (issued February 26, 2020); Charles E. McAndrews, 55 ECAB 711 (2004).

18

M.A., Docket No. 19-1017 (issued December 4, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

review whether these alleged incidents are covered employment factors under the terms of
FECA.19
Appellant has alleged that he was overworked as he was required to perform the work of
two or three individuals. The Board has held that overwork, when substantiated by sufficient
factual information to corroborate appellant’s account of events may be a compensable factor of
employment.20 Appellant explained that the employing establishment took away two men from a
three-man job and he was under the daily pressure to perform the job of three men. He further
indicated that, while low mail volume affected the mail clerks, he was still required to load the
same number of trucks, mail containers, and pallets onto a truck. Appellant substantiated his
account by statements of his coworker, J.W., who reported that he had observed appellant being
ordered to perform the work of two or three men due to downsizing in the workforce. Moreover,
an August 10, 2017 letter by the employing establishment also indicated that a more senior job
position was eliminated. OWCP had determined that the fact that a job position was eliminated
due to lower mail volume showed that appellant was not overworked. The Board notes, however,
that appellant submitted supportive evidence that the elimination of staff resulted in overwork as
the same number of containers were moved during the shift, despite an alleged reduction in overall
volume of mail. Furthermore, both appellant and his coworkers have explained that a lower mail
volume would not affect appellant’s duties operating a fork lift as he was still required to move
the same amount of pallets and containers.
The Board finds that appellant has met his burden of proof to establish the compensable
factor of overwork.
Appellant has also attributed his emotional stress to a hostile work environment alleging
that he had been harassed, bullied, and threatened by his supervisor, M.E. He specifically
described events that occurred at work on September 28 and 29, 2017. Appellant reported that on
September 28, 2017 he was in the breakroom when M.E. yelled at him in front of everyone to get
back to work. He indicated that M.E. told him to shut up or else he would be fired.
Appellant submitted several witness statements regarding the pattern of harassment and
verbal abuse from M.E. Regarding the September 28, 2017 incident in the breakroom, OWCP
received statements from A.T. and T.B. who noted that on that date, M.E. entered the breakroom
and instructed appellant to go onto the workroom floor. A.T. claimed that this was not the first
time that M.E. had singled out a certain individual and indicated that most of the issues concerning
employees at the postal annex stemmed from M.E.’s actions. In an October 3, 2017 statement,
J.M. also explained that on September 28, 2017 he was in the breakroom when he observed M.E.
yell at appellant to “shut up” and get to work or else be fired. Both T.B. and J.M. explained that
they found M.E.’s behavior to be unprofessional and created a hostile work environment.
Appellant further described that on September 29, 2017 he knelt down on one knee during
an 8:00 a.m. meeting in protest of the disparate treatment. He indicated that M.E. abruptly ended
19

Supra note 16.

20
W.F., Docket No. 18-1526 (issued November 26, 2019); I.P., Docket No. 17-1178 (issued June 12, 2018);
William H. Fortner, 49 ECAB 324 (1998).

8

the meeting, subsequently called appellant to his office, and told him to punch off the clock due to
improper conduct during the meeting. Appellant explained that, when he refused to leave, M.E.
called the local police and postal inspectors to put him out of the building. He further related that
when he got home postal inspectors came to his house to obtain his keys and badge.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from the
employee’s performance of his or her regular duties, these could constitute employment factors.21
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur.22 Verbal altercations
and difficult relationships with supervisors/managers, when sufficiently detailed and supported by
the record, may constitute compensable factors of employment. However, this does not imply that
every ostensibly abusive or threatening statement uttered in the workplace will give rise to
coverage under FECA.23 A claimant must establish a factual basis for his or her allegations that
the harassment occurred with probative and reliable evidence.24
Regarding the September 29, 2017 incident, appellant submitted statements from J.M. who
explained that he had observed M.E. threaten, bully, and harass appellant from August to
September 2017. He noted that he was present on September 29, 2017 when appellant knelt down
in protest during a meeting and observed that M.E. became agitated and called the local police and
postal inspectors. J.M. noted that appellant had not threatened anyone or made any kind of gesture
toward M.E. He reported that he was also present when the postal inspectors came to appellant’s
home and observed that appellant was very upset and had a panic attack.
The evidence of record demonstrates that M.E.’s calling of the police and postal
investigators on September 29, 2017 was part of his pattern of harassment and abusive behavior.
Furthermore, the statements do not support M.E.’s version of the story. Thus, the Board finds that
appellant has submitted reliable and supportive evidence corroborating M.E.’s abusive conduct
and mistreatment of appellant on September 28 and 29, 2017 and his pattern of harassment.25
Appellant, therefore, has established compensable employment factors with respect to these
allegations of harassment and discrimination.
The Board finds that appellant has established compensable employment factors with
respect to overwork and his allegations of harassment by M.E., his supervisor, regarding his
actions on September 28 and 29, 2017. Thus, OWCP must base its decision on analysis of the
medical opinion evidence with regard to causal relationship. The Board will therefore remand the
case for OWCP to review the medical evidence as it relates to the accepted compensable factors
21

Supra note 11.

22

Supra note 12.

23

J.M., Docket No. 16-0717 (issued January 12, 2017), Y.J., Docket No. 15-1137 (issued October 4, 2016); L.M.,
Docket No. 13-0267 (issued November 15, 2013).
24

Supra note 14.

25
See D.H., Docket No. 17-1529 (issued February 14, 2018); see also E.M., Docket No. 16-1695 (issued
June 27, 2017).

9

of employment.26 Following this and such further development as OWCP deems necessary, it
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 17, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

26

See T.Y., Docket No. 19-0654 (issued November 5, 2019); T.F., Docket No. 12-0439 (issued August 20, 2012).

10


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

)
)
)
)
)
)
)
)

Docket No. 21-0797
Issued: January 27, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 29, 2021 appellant filed a timely appeal from a March 2, 2021 decision of the
Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 21-0797.
By letter dated November 17, 2021 and received November 29, 2021, appellant requested
that the appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

1

Appellant’s AB-1 Form notes that she is appealing from a purported April 17, 2021 decision of OWCP; however,
there is no final adverse decision of that date found in the case record. The only final adverse decision of OWCP
which the Board has jurisdiction is the March 2, 2021 decision.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0797 is dismissed.
Issued: January 27, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-449
Issued: September 20, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from September 21 and
November 22, 2010 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
denying reimbursement of expenses. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 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 OWCP properly denied appellant’s request for reimbursement of an
overnight hotel stay and parking fees incurred on August 17, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2001 appellant, then a 47-year-old heavy mobile equipment mechanic, filed a
claim alleging that on that date he sustained an injury to three fingers on his right hand in the
performance of duty. OWCP accepted the claim for a right hand contusion, a crush injury to the
right finger, carpal tunnel syndrome of the right wrist, a boutonniere deformity of the small and
middle right fingers and right hand traumatic arthropathy.2 Appellant underwent a right carpal
tunnel release on May 3, 2004.
On August 17, 2010 Dr. Vita Kesner, a Board-certified neurologist, performed a
neurological examination on appellant in Atlanta, Georgia.
By letter dated September 13, 2010, OWCP advised appellant that it had paid his claim
for mileage for travel from his home in Albany, Georgia to Atlanta, Georgia for his appointment
with Dr. Kesner. It informed him that he was not entitled to overnight hotel accommodations or
parking fees associated with his hotel stay as his travel from Albany to Atlanta was under 12
hours and less than 500 miles round-trip. OWCP utilized a computer mapping site to determine
the distance from appellant’s home to Atlanta, Georgia.
On September 15, 2010 appellant challenged the denial of his request for lodging. He
noted that he had an early morning appointment with Dr. Kesner.
By decision dated September 21, 2010, OWCP denied appellant’s request for
reimbursement for an overnight hotel stay and parking fees resulting from the overnight stay. It
found that its procedure manual did not provide for reimbursement for lodging without prior
authorization or when the travel was under 12 total hours or less than 500 miles round-trip.
On September 24, 2010 appellant requested reconsideration. In an undated statement
received on September 30, 2010, he contended that due to his disability and need for medication
he drove to Atlanta the day before his medical appointment. Appellant avoided rush hour traffic
by going the day before. He also maintained that he was not aware of an OWCP requirement
that denied hotel reimbursement for trips under 500 miles round-trip or less than 12 hours total.
By decision dated November 22, 2010, OWCP denied modification of its September 21,
2010 decision. It found that it was his choice to schedule an early morning appointment and that
he went the night before for his own convenience.
LEGAL PRECEDENT
Section 8103 of FECA3 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
2

By decision dated April 16, 2003, OWCP granted appellant a schedule award for a 20 percent permanent
impairment of the right hand. In a decision dated January 10, 2005, it granted him a schedule award for a five
percent impairment of the right thumb. By decisions dated March 24 and July 21, 2008, OWCP denied appellant’s
claim for an additional schedule award. In a decision dated May 11, 2010, it denied his request for an oral hearing
as it was made regarding an information letter rather than a final decision.
3

Supra note 1.

2

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.4
Section 10.315 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel,
OWCP will consider the availability of services, the employee’s condition and the
means of transportation. Generally 25 miles from the place of injury, the work
site or the employee’s home is considered a reasonable distance to travel. The
standard form designated for [f]ederal employees to claim travel expenses should
be used to seek reimbursement under this section.”5
OWCP’s procedures state, “There will be no reimbursement for meals or lodging when
travel is for less than 12 hours in total or fewer than 500 miles round-trip. Lodging must receive
prior authorization.”6
ANALYSIS
OWCP accepted that appellant sustained a right hand contusion, a crush injury to the
right finger, right carpal tunnel syndrome, a boutonniere deformity of the small and middle right
fingers and right hand traumatic arthropathy due to a May 8, 2001 employment injury. On
August 17, 2010 appellant received treatment for his work injury from Dr. Kesner in Atlanta,
Georgia. OWCP reimbursed him for mileage from his home in Albany, Georgia to Atlanta,
Georgia but denied his request for reimbursement for an overnight hotel stay and parking fees
associated with the hotel stay.
Appellant argued that he was entitled to reimbursement because he could not drive early
in the morning to his appointment given his need for medication. OWCP’s procedure manual,
however, provides that it will not reimburse for lodging when the travel is under 12 hours total or
less than 500 miles round-trip.7 OWCP used a computer mapping program to determine that the
distance from appellant’s home in Albany to Atlanta was less than 12 hours in total and under
500 total miles round-trip.8 It further noted that he had not requested authorization for lodging in
advance. Consequently, OWCP properly denied appellant’s request for reimbursement for
lodging and associated expenses.

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

20 C.F.R. § 10.315.

6

Federal (FECA) Procedure Manual, Part 5 -- Overview of the BPS, Unique Bills, Chapter 200.9i (April 2005).

7

Id.

8

The distance between Albany, GA and Atlanta, GA is approximately 183 miles.

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reimbursement of an
overnight hotel stay and parking fees incurred on August 17, 2010.
ORDER
IT IS HEREBY ORDERED THAT the November 22 and September 21, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 20, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.Y., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Patuxent, MD, Employer
__________________________________________

)
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)
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)
)
)

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

Docket No. 10-848
Issued: March 28, 2011

Case Submitted on the Record

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

JURISDICTION
On February 12, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision concerning an overpayment dated November 2, 2009. Under
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 the Office properly determined that appellant received an
overpayment in the amount of $45,104.89 for the period July 3, 2004 through November 22,
2008 because she received dual compensation benefits from the Office of Personnel
Management (OPM) and the Office; and (2) whether the Office properly found that appellant
was at fault in the creation of the overpayment and therefore ineligible for waiver of recovery of
the overpayment.
FACTUAL HISTORY
Appellant, a 53-year-old nursing assistant, injured her right arm in the performance of
duty on January 29, 1996. The Office accepted the claim for right arm fracture. It paid

compensation for total disability and placed appellant on the periodic rolls. Appellant returned
to work on July 1, 1996 and subsequently stopped work on October 9, 1996. She was separated
from the employing establishment on November 3, 1997.
In a decision dated October 14, 2000, the Office informed appellant that it was adjusting
her compensation because the medical evidence showed that she was no longer totally disabled
for work. It determined that she would receive monthly compensation at the rate of $617.26,
based on her adjusted wage-earning capacity. The decision contained the following notice to
appellant:
“You are advised that receipt of [the Office] payments for loss of wage-earning
capacity and receipt of an annuity from [OPM] constitutes a dual benefit. If you
receive such benefits from OPM, you should so advise this office immediately.
You will be asked to make an election between the two benefits.”
Appellant began receiving an OPM benefit annuity on July 3, 2004.
In a decision dated November 14, 2008, the Office informed appellant that it was
suspending her compensation because she failed to complete and submit the Form CA-1032
which it sent to her on August 21, 2008 pursuant to section 10.525(a) of the Office’s regulations.
It advised her that if she completed and returned an enclosed Form CA-1032 her compensation
benefits would be restored retroactively to the date they were suspended. Appellant did not
respond to this letter.
In a Form CA-1032 dated January 2, 2009, received by the Office on January 8, 2009,
appellant indicated that she was not receiving any other federal benefits or payments, including
OPM benefits.
By letter dated June 4, 2009, OPM advised the Office that appellant was receiving OPM
retirement benefits. It stated that she had received dual compensation from OPM, while she was
simultaneously receiving benefits from the Office, for the period July 3, 2004, the commencing
date of her annuity, through November 22, 2008, the date the Office suspended her
compensation.
By letter dated July 28, 2009, the Office informed appellant that OPM had notified that
she was receiving benefits from OPM. It stated that benefits paid by OPM and benefits for wage
loss paid by the Office were not payable for the same period of time and that employees entitled
to both the Office and OPM annuity benefits must elect which benefit to receive. The Office
stated that it had enclosed two copies of election CA-l105-1288 forms; it instructed her to
complete the forms and return them to the Office within 30 days.
An Office worksheet dated July 28, 2009 indicated that appellant had been paid the
amount of $45,104.89 for the period July 3, 2004 to November 22, 2008.
On July 31, 2009 appellant submitted a form letter to the Office in which she checked a
box indicating that she had not received a lump-sum annuity from OPM.

2

By letters dated August 19 and September 9, 2009, the Office informed appellant that her
July 31, 2009 letter did not provide sufficient indication as to whether she had elected to receive
compensation from either the Office or OPM. It reiterated that she needed to complete and
submit CA-l105-1288 forms. Appellant did not respond to this letter.
In response to an OPM inquiry, received by the Office on September 11, 2009, appellant
stated, “I have not received any retirement or compensation at any time.…” On October 1, 2009
the Office made a preliminary determination that appellant received an overpayment in the
amount of $45,104.89 due to her receipt of dual benefits from OPM and under the Federal
Employees’ Compensation Act during the period July 3, 2004 through November 22, 2008. It
found that she was at fault in the creation of the overpayment. The Office stated that appellant
was aware or should have reasonably been aware that she was receiving compensation that she
was not entitled to receive. Appellant was advised that she could request a telephone conference,
a final decision based on the written evidence only or a hearing within 30 days if she disagreed
that the overpayment occurred, with the amount of the overpayment or if she believed that
recovery of the overpayment should be waived. The Office requested that she complete an
accompanying overpayment recovery questionnaire (Form OWCP-20) and submit financial
documents in support thereof within 30 days. Appellant did not respond to this request within 30
days.
In a decision dated November 2, 2009, the Office finalized the preliminary determination
regarding the overpayment of $45,104.89. It found that appellant was at fault in the creation of
the overpayment in the amount of $45,104.89 for the period July 3, 2004 through November 22,
2008 and ordered her to repay the overpayment in full in monthly installments of $300.00
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Act states that, while an employee is receiving workers’
compensation, he or she may not receive salary, pay or remuneration of any type from the United
States, except in return for services actually performed or for certain payments related to service
in the Armed Forces, including benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death being compensated for
under the Act.1 The implementing regulations provide that a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity.2 The beneficiary
must elect the benefit that he or she wishes to receive.3
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $45,104.89 for the period July 3, 2004 through
November 22, 2008. Appellant received dual compensation from OPM in addition to wage-loss
1

5 U.S.C. § 8116(a).

2

20 C.F.R. § 10.421(a).

3

Id.

3

compensation she had been receiving under the Act during this period. The evidence of record
establishes that she never completed an election of benefits and therefore received both OPM and
the Office benefits. Consequently, any wage-loss compensation appellant received from the
Office for a period beginning on or after July 3, 2004 constitutes an overpayment of benefits.
She is not eligible to receive wage-loss compensation and disability retirement benefits from
OPM for the same time period.4 The Board finds that appellant received an overpayment of
compensation in the amount of $45,104.89 for the period July 3, 2004 through
November 22, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.6
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment-Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
Failed to provide information which the individual knew or should have
known to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.”7
With respect to whether an individual is without fault, section 10.433(b) of the Office
regulations provide in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the

4

Id., see Franklin L. Bryan, 56 ECAB 310 (2005).

5

5 U.S.C. § 8129(a)-(b).

6

Bonnye Mathews, 45 ECAB 657 (1994).

7

20 C.F.R. § 10.433(a).

4

complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”8
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment.
The Office found that appellant was at fault in the creation of the overpayment as she
knew or should have known that she was not entitled to dual benefits. The record establishes
that on October 14, 2000 she was informed that receipt of the Office payments for loss of wageearning capacity and receipt of an annuity from OPM constituted a dual benefit and that she was
instructed to immediately contact the Office if she received such benefits from OPM. Appellant
knew or should have known that acceptance of compensation benefits for periods after July 3,
2004 were incorrect. She accepted such payments after this date which she knew or should have
known to be incorrect, as indicated by her incorrect responses to OPM inquiries and the
January 2, 2009 CA-1032 forms on which she indicated that she was not receiving any other
federal benefits or payments.9 As appellant accepted compensation benefits from the Office
which covered the period July 3, 2004 through November 22, 2008, the Board finds that she was
at fault in the creation of the overpayment and is not entitled to waiver.10
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.11 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.12
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $45,104.89 during the period July 3, 2004 through November 22, 2008 because she received
dual compensation benefits from OPM and under the Act. The Board further finds that the
Office properly found that she was at fault in the creation of the overpayment.

8

Id. at § 10.433(b).

9

Lorenzo Rodriguez, 51 ECAB 295, note 13 (2000). The Board notes that the Office apparently was not aware
that appellant was receiving OPM benefits until it received OPM’s June 4, 2009 letter.
10

Lawrence J. Dubuque, 55 ECAB 667, 673 (2004).

11

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

12

Cheryl Thomas, id.

5

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-817
Issued: May 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 22, 2013 appellant, through her attorney, filed a timely appeal from merit
decisions dated October 4, 2012 and February 6, 2013 of the Office of Workers’ Compensation
Programs (OWCP) terminating her compensation benefits. 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits on August 28, 2011.
On appeal, counsel contends that OWCP improperly relied on the medical opinion of an
impartial medical examiner to terminate appellant’s benefits as it was based on a deficient
statement of accepted facts. The statement of accepted facts did not reflect the diagnostic
testing, right arm surgery and functional impairment evaluations appellant had undergone over
1

5 U.S.C. § 8101 et seq.

the years. An attending physician provided a history of her medical treatment and opined that
she continued to have residuals of her accepted employment-related injuries, developed new
employment-related conditions and was unable to return to her repetitive work duties. Counsel
further contends that the impartial medical examiner was not properly selected from the
Physicians Directory System (PDS). There was no screenshot showing her selection. Lastly,
counsel contends that the impartial medical examiner’s reports were not rationalized.
FACTUAL HISTORY
On April 12, 1994 appellant, then a 43-year-old distribution clerk, filed an occupational
disease claim alleging that in September 1980 she first became aware of her bilateral carpal
tunnel syndrome and thoracic outlet syndrome. She further alleged that on October 15, 1980 she
first realized that her conditions were caused by her repetitive work duties. Appellant stopped
work on September 15, 1992. On March 4, 1994 she returned to part-time light-duty work at the
employing establishment. Appellant stopped work on March 8, 1994 and has not returned to
work. OWCP accepted her claim for bilateral carpal tunnel syndrome and a right lesion of the
ulnar nerve and authorized right median neuropathy repair which was performed on
December 14, 1994.
Dr. Scott M. Fried, an attending Board-certified neurologist, advised that appellant had
permanent and ongoing work-related injuries that required further medical treatment. He further
advised that she was also unable to return to her regular work duties.
By letter dated April 5, 2010, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Kevin Hanley, the second opinion Board-certified
orthopedic surgeon.
In a May 17, 2010 medical report, Dr. Hanley reviewed the medical history and provided
findings on physical examination.2 He concluded that appellant’s employment-related bilateral
carpal tunnel syndrome had resolved. Dr. Hanley advised that there were no objective findings
to correlate with her subjective complaints. He concluded that appellant could return to her
regular work duties, eight hours a day with no restrictions.
On February 14, 2011 OWCP found a conflict in the medical opinion between Drs. Fried
and Hanley regarding appellant’s current condition and capacity to perform her regular work
duties. By letter dated March 3, 2011, it referred appellant to Dr. Stephanie Sweet, a Boardcertified orthopedic surgeon, for an impartial medical evaluation. The record includes an iFECS
Report: MEO23 Appointment Schedule Notification which stated that appellant had an
appointment with Dr. Sweet on April 15, 2011 and a Form ME-M Memorandum of Referral to
Specialist which listed the previous physicians involved in the case.
In an April 15, 2011 report, Dr. Sweet reviewed the medical evidence, statement of
accepted facts and set forth findings on physical examination. She opined that appellant no
2

The Board notes that Dr. Hanley previously served as an OWCP referral physician and submitted a
January 20, 2009 report. In this report, Dr. Hanley opined that appellant had no residuals of her employment-related
bilateral carpal tunnel syndrome. Appellant could perform her regular work duties with no restrictions.

2

longer had any residuals or disability due to her employment-related injuries. Dr. Sweet further
opined that appellant did not have brachial plexopathy. She concluded that appellant was
capable of working with no restrictions. On examination, appellant presented with subjective
findings not borne out by physical findings, pain that was out of proportion to physical findings
and symptom magnification.
On July 11, 2011 OWCP issued a notice of proposed termination of appellant’s wage-loss
compensation and medical benefits. It found that Dr. Sweet’s report constituted the weight of
the medical evidence. Appellant was advised that she had 30 days to submit additional evidence
in response to the proposed termination.
In an August 4, 2011 report, Dr. Fried reviewed appellant’s medical history. He
diagnosed bilateral carpal tunnel (median neuropathy) at the wrist and hand level, right radial
neuropathy with radial tunnel and de Quervain’s tenosynovitis and bilateral brachial plexopathy.
Appellant was status post March 1997 ulnar nerve decompression and carpal tunnel median
nerve decompression of which she had ongoing residuals. Dr. Fried advised that she had
ongoing residual disability with respect to her employment-related bilateral carpal tunnel and
ulnar nerve injury. Appellant also had a proximal injury with cervical and brachial plexus
injuries which were well documented by electrical studies, magnetic resonance imaging scans
and functional capacity tests. Dr. Fried concluded that she could not perform her prior work
activities, but she could work with permanent limitations.
In an August 19, 2011 decision, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective August 28, 2011, finding that she had no residuals or disability
causally related to her accepted employment-related injuries and that she did not have any other
employment-related injuries based on Dr. Sweet’s impartial medical opinion.
By letter dated August 23, 2011, appellant, through her attorney, requested an oral
hearing before an OWCP hearing representative.
In a July 29, 2011 report, Dr. Fried reviewed the findings of a June 22, 2011 functional
capacity evaluation and recommended vocational rehabilitation as appellant could not return to
her original job. The test findings demonstrated an excellent effort on evaluation and were a
valid representation of her limits and capabilities with coefficients of variance showing a full
consistent effort. In a January 9, 2012 report, Dr. Fried listed findings on neurological
examination and reiterated his prior diagnosis of right de Quervain’s tenosynovitis and opinion
regarding appellant’s work capacity. On January 9, 2012 he also diagnosed bilateral carpal
tunnel syndrome and a right ulnar nerve lesion. Dr. Fried ordered an ultra sound.
In a February 23, 2012 decision, OWCP’s hearing representative affirmed the
August 19, 2011 termination decision. She found that the Form ME023 established that
Dr. Sweet was properly selected as an impartial medical specialist under OWCP protocol and the
PDS. The hearing representative further found that as Dr. Fried was on one side of the conflict
that Dr. Sweet resolved, the additional report dated August 4, 2011 from Dr. Fried was
insufficient to overcome the special weight accorded Dr. Sweet’s report as the impartial medical
specialist.

3

By letter dated March 5, 2012, appellant’s attorney requested reconsideration.
In a March 5, 2012 report, Dr. Fried listed findings on neurological examination. He
diagnosed bilateral radial and median neuropathy and right and left cervical radiculopathy.
Dr. Fried again advised that appellant continued to have residuals of her employment-related
injuries and that she could work with restrictions. He further advised that further medical
treatment was necessary.
By decision dated June 1, 2012, OWCP denied modification of the February 23, 2012
decision. It found that Dr. Sweet was properly selected under the PDS. OWCP further found
that the medical evidence submitted by appellant was insufficient to outweigh the special weight
accorded to Dr. Sweet’s impartial opinion.
On June 22, 2012 appellant’s attorney requested reconsideration.
In a December 14, 2011 electromyogram (EMG) report, Richard Read, a Board-certified
electrophysiologic clinical specialist, listed his impressions which he compared to a
July 18, 2006 EMG study. He found bilateral median nerve compromises at the wrist levels that
were significant on the right and severe on the left and more compromised than on the prior
EMG test. Mr. Read also found moderate bilateral radial/posterior interosseous nerve
compromises at the radial tunnel levels; the right was relatively unchanged while the left had
been previously reported normal based on the prior EMG test. There was continued evidence of
moderate residual right ulnar nerve compromise at the medial elbow level status post a previous
anterior transposition that had slightly improved since the previous EMG test. There was also
continued EMG evidence to suggest a bilateral C6 cervical nerve root radicular component
compromise that was relatively unchanged since the previous EMG test and without acute nerve
root denervation activity.
By letter dated August 3, 2012, OWCP requested that Dr. Sweet review the
December 14, 2011 EMG report and provide an opinion as to whether this evidence changed her
April 15, 2011 opinion that appellant had fully recovered from her work-related injuries with no
residuals.
In a September 24, 2012 report, Dr. Sweet indicated that she reviewed the
December 2011 EMG report and her April 15, 2011 opinion regarding appellant’s work injury
remained unchanged. She stated that the EMG findings were not clinically pertinent.
In an October 4, 2012 decision, OWCP denied modification of the June 1, 2012 decision
based on Dr. Sweet’s April 15, 2011 and September 24, 2012 reports.
By letter dated November 15, 2012, appellant, through her attorney, requested
reconsideration.
A July 25, 2012 work capacity evaluation report performed at the request of Dr. Fried,
determined that appellant could not return to her previous full-duty work, but she could perform
a sedentary job with restrictions.

4

By letter dated December 13, 2012, OWCP again referred appellant, together with a
statement of accepted facts and the medical record, to Dr. Sweet for an impartial medical
examination to determine whether appellant continued to suffer from residuals of her accepted
employment injuries and whether she could return to work with no restrictions. An iFECS
Report: MEO23 Appointment Schedule Notification and a screenshot indicated that Dr. Sweet
was selected as the impartial medical specialist and that appellant had an appointment with her
on January 4, 2013.
In a January 10, 2013 letter, OWCP advised counsel that the PDS was not used to select a
new impartial medical specialist as appellant was being referred to Dr. Sweet for reevaluation.
In a January 4, 2013 report, Dr. Sweet reviewed a history of appellant’s medical,
occupational, social and family background. She also reviewed the medical record. Dr. Sweet
noted appellant’s complaints of diffuse symptoms which were somewhat vague, nonanatomic
and out of proportion to physical findings. Appellant had pain in her volar wrist and across her
chest into her shoulder and sternal which radiate to her right shoulder and soreness in her right
medial forearm, right lateral elbow and volar forearm. When she put pressure on her sternum
she experienced pain in her right shoulder blade. Dr. Sweet reported essentially normal findings
on physical examination with the exception of a Tinel’s sign that elicited diffuse nonspecific pain
throughout the right upper extremity without any true radiation over the anatomic distribution of
the nerve including, the brachial plexus, cubital and carpal tunnels. On the left side appellant
reported slight pain with carpal tunnel Tinel’s testing, but no true radiation. A Phalen’s test and
reverse Phalen’s test elicited vague, nonspecific symptoms. Dr. Sweet reported that a
January 4, 2013 radiograph of the bilateral wrists revealed no significant pathology other than
mild early left thumb basal joint arthritis. She advised that appellant did not have any ongoing
work-related disability. Appellant did not require ongoing active therapy or other care for her
previous work-related injury. Again she had vague, nonspecific complaints of pain in her
sternal, posterior shoulder and other areas of discomfort that were not related to her initial carpal
tunnel or cubital tunnel problems. Dr. Sweet found that appellant had fully recovered from her
work-related right carpal tunnel syndrome and right cubital tunnel syndrome. She concluded that
appellant had no specific restrictions.
In a February 6, 2013 decision, OWCP denied modification of the October 4, 2012
decision based on Dr. Sweet’s January 4, 2013 impartial medical opinion which was supported
by Dr. Hanley’s May 17, 2010 second opinion report.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer

3

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

5

related to the employment.4 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.8 Where a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background must be
given special weight.9
A physician selected by OWCP to serve as a referee should be one wholly free to make a
completely independent evaluation and judgment. In order to achieve this, OWCP has
developed specific procedures for the selection of referee physicians designed to provide
adequate safeguards against any possible appearance that the selected physician’s opinion was
biased or prejudiced. The procedures contemplate that referees will be selected on a strict
rotating basis through the PDS in order to negate any appearance that preferential treatment
exists between a particular physician and OWCP.10
ANALYSIS
Dr. Fried, a treating Board-certified neurologist, opined that appellant continued to have
residuals and disability causally related to the accepted employment-related injuries. Dr. Hanley,
a second opinion Board-certified orthopedic surgeon, concluded that appellant no longer had any
residuals or disability due to the accepted work injuries. OWCP found a conflict between
Drs. Fried and Hanley, and selected Dr. Sweet, a Board-certified orthopedic surgeon, as impartial
medical examiner. In reports dated April 15, 2011, September 24, 2012 and January 4, 2013,
4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

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

7

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

8

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

10

See Raymond J. Brown, 52 ECAB 192 (2001). The Board notes that as of July 2011, the Medical Management
Application in iFECS replaced the prior PDS selection procedure for an impartial medical specialist. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.500.5 (July 2011).

6

Dr. Sweet concluded that appellant no longer had any residuals or disability due to the accepted
employment injuries. Based on her opinion, OWCP terminated appellant’s compensation and
medical benefits effective August 28, 2011.
On appeal, counsel argued that OWCP did not follow its procedures in referring appellant
to Dr. Sweet. More specifically, that Dr. Sweet was not properly selected under the PDS as there
was no screenshot showing her selection.
It is well established that OWCP has an obligation to verify that it selected Dr. Sweet in a
fair and unbiased manner.11 It maintains records for this very purpose.12 The current record
includes a March 3, 2011 and December 13, 2012 Form MEO23 report Appointment Schedule
Notification that lists Dr. Sweet as the selected physician. Contrary to counsel’s above-noted
contention, the record also contains a screenshot that indicates the selection of Dr. Sweet.
(Additionally, the record contains a Form ME-M Memorandum of Referral to Specialist which
listed previous physicians involved in the case.
There is no evidence in the record that shows that any other physicians were bypassed
without good cause before Dr. Sweet was selected. The fact that the screen shot was not imaged
in the record until December 13, 2012 does not nullify the IME selection.
The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.13 As OWCP has met its affirmative obligation to establish that it properly
followed its selection procedures, the Board finds that counsel’s argument is not substantiated.
The Board finds the weight of the medical evidence is represented by the thorough, well
rationalized opinion of Dr. Sweet. The April 15, 2011 report of Dr. Sweet establishes that
pursuant to her examination, appellant no longer had any residuals or disability due to her
employment-related injuries. Dr. Sweet referenced that appellant had presented with subjective
findings not borne out of physical findings, pain out of proportion to physical findings. She
further indicated that she had fully recovered from her right carpal tunnel and her right cubital
tunnel syndrome and was not in need of further care. Additionally Dr. Sweet indicated that
appellant did not suffer from brachial plexopathy and was capable of working without specific
restrictions.
Counsel alleged that Dr. Sweet was provided a deficient statement of facts by OWCP and
was lacking any indication to surgeries that she had previously undergone. Contrary to his
assertion, the March 23, 2010 statement of accepted facts specifically mentions the
December 14, 1994 right sided median neuropathy repair procedure. Further, Dr. Sweet
mentions all of appellant’s previous surgeries in her past medical history. Lastly, counsel argues
in her report that Dr. Sweet did not reference the EMG studies conducted after appellant’s 1994
11

J.W., Docket No. 12-331 (issued January 14, 2013).

12

M.A., Docket No. 07-1344 (issued February 18, 2008).

13

See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011).

7

surgery. The record reflects that December 14, 2011 EMG studies submitted by appellant were
sent to Dr. Sweet on August 3, 2012 for her to provide an opinion as to whether these subsequent
studies would augment her April 15, 2011 opinion that appellant had fully recovered without
residuals. In a response letter dated September 24, 2012, Dr. Sweet indicated that her opinion
relative to appellant’s injuries remained unchanged.
A July 25, 2012 work capacity evaluation performed at the request of Dr. Fried was
submitted. It too was forwarded along with a statement of facts to Dr. Sweet for an impartial
medical examination and solicitation of an opinion relative to whether appellant suffered any
residuals of her accepted employment injuries and her fitness to return to work without
restrictions. Dr. Sweet in a January 4, 2013 report indicated that appellant was without an
ongoing work-related disability and did not require further treatments and that she had fully
recovered from her work-related right carpal tunnel syndrome and right cubital tunnel syndrome.
The Board carefully reviewed the opinion of Dr. Sweet and finds that she provided a
thorough medical and factual history and accurately summarized the medical evidence.
Dr. Sweet provided both a probative and convincing quality with respect to her conclusions
regarding the relevant issues of the present case explaining that there was no objective evidence
of record showing that appellant continued to have residuals in September 1980.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
and medical benefits on August 8, 2011 on the grounds that she had no residuals of her
September 1980 work injury after that date.

8

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2013 and October 4, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed
Issued: May 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9