United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1649
Issued: March 7, 2008

Case Submitted on the Record

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

JURISDICTION
On May 29, 2007 appellant, through her attorney, filed a timely appeal of the March 19,
2007 merit decision of the Office of Workers’ Compensation Programs.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that her claim should be accepted
for additional medical conditions; (2) whether the Office properly terminated appellant’s
compensation benefits effective December 2, 2003 on the basis that she did not have any
remaining disability causally related to her accepted employment injuries; and (3) whether
appellant had disability on or after December 3, 2003 causally related to the accepted
February 21, 2002 employment injury.

1

In this decision, the Office reissued its January 7, 2005 decision denying modification of its December 2, 2003
decision terminating appellant’s compensation benefits effective that date.

FACTUAL HISTORY
On February 21, 2002 appellant, then a 41-year-old tax examiner, sustained injury to her
right wrist, knee, hip, ankle, back and neck when she tripped on a carpet. She stopped working
the date of the injury. By letter dated May 23, 2002, the Office accepted appellant’s claim for
lumbar sprain; sprain of the neck, right hip and thigh; and contusions of the right knee, wrist and
hand. Her claim was later accepted for a right meniscal tear.
A June 24, 2002 magnetic resonance imaging (MRI) scan of the cervical spine read by
Dr. Melissa Sapan, a Board-certified radiologist, found mild disc bulging at C3-4 and C4-5. An
MRI scan of the lumbosacral revealed findings suspicious for T11-12 right parasagittal disc
herniation. Dr. Sapan also noted that L4-5 left far lateral disc herniation narrows the left neural
foramen.
An MRI scan of the right knee conducted that day was interpreted by
Dr. Melvin Leeds, a Board-certified radiologist, as showing a subtle tear of the posterior horn of
the medial meniscus reaching the inferior articular margin with no associated degenerative
change or displacement of meniscal fragment. A small joint effusion was also noted. A
September 3, 2002 MRI scan of the thoracic spine was interpreted by Dr. Philip Beucher as
showing T9-10 right parasagittal small disc herniation and T11-12 right parasagittal disc bulge.
On September 17, 2002 appellant underwent arthroscopy and partial medial
meniscectomy of the right knee.
Appellant was treated by Dr. Meeta Govindarajan, a Board-certified internist. In a
medical report dated April 10, 2003, he noted treatment of appellant for the February 21, 2002
injury. Appellant continued to have right knee pain and experienced numbness in her hands.
Dr. Govindarajan listed his clinical impressions as cervical spine disc disease, cervical
sprain/strain, lumbar spine disc disease, lumbar spine sprain/strain, thoracic disc disease,
mid-back strain and right knee derangement syndrome. He opined that appellant was
temporarily totally disabled. Dr. Govindarajan stated: “It is my opinion with a reasonable
degree of medical certainty [that] the injury mentioned is a competent provocative cause of the
impairment and disability and is causally related.”
On April 25, 2003 appellant was referred to Dr. Vartkes Khachadurian, a Board-certified
orthopedic surgeon, for a second opinion. In a medical report dated May 16, 2003, he diagnosed
right knee sprain with an MRI report of posterior horn tear medial meniscus, status post partial
meniscectomy, chondroabrasion due to degenerative changes, cervical and lumbar sprains with
no evidence of neuromotor deficit and no evidence clinically of herniated discs of either the
cervical, lumbar or thoracic spine. Dr. Khachadurian stated that appellant had recovered from
her injuries and was capable of returning to her usual work activities as a tax examiner with no
restrictions, except for kneeling and squatting. He noted that there were no objective findings
related to the examination of the lumbar spine or the neck or the right wrist. Appellant’s current
disability was related to the injury to her right knee, which was treated by a partial
meniscectomy. She had a mild disability in the right knee which was permanent and which was
also caused by an underlying degenerative condition of the knee. Dr. Khachadurian concluded:
“It is my orthopedic opinion that the work-related injury is not active but that the results of the
injury and the underlying degenerative condition of the knee joint are aggravated by kneeling,
squatting and jumping and these restrictions should be allowed to prevent further recurrences.”

2

The Office found a conflict in medical opinion between Dr. Govindarajan and
Dr. Khachadurian. By letter dated September 22, 2003, it referred appellant to Dr. Edmund
Stewart, a Board-certified orthopedic surgeon, for an impartial medical examination in order to
resolve the conflict. In a medical report dated October 14, 2003, Dr. Stewart diagnosed cervical
sprain (resolved), lumbosacral sprain (resolved), right wrist sprain (resolved), right ankle sprain
(resolved), status post right knee sprain and status post arthroscopic surgery right knee. He
stated that the diagnoses were causally related to the February 21, 2002 trip and fall. Dr. Stewart
noted that appellant made a satisfactory recovery from her injuries and required no further
orthopedic follow-up, therapy or studies. He stated that there was “little in the way of objective
findings to support [appellant’s] numerous subjective complaints....” Dr. Stewart noted that
there were no objective orthopedic findings in appellant’s neck or back to support any MRI scan
changes. He opined that appellant was capable of performing full work in her duties as a tax
examiner. Dr. Stewart did note that appellant had a mild impairment of her right knee joint and
should not be asked to squat or kneel or climb ladders.
In reports dated May 16, June 13, July 10 and 23, 2003, Dr. Govindarajan reiterated that
appellant was totally disabled due to her work-related injuries.
On October 29, 2003 the Office issued a proposed notice of termination of benefits. The
Office found that the weight of the medical opinion evidence was represented by the opinion of
Dr. Stewart. The Office proposed terminating wage-loss and medical benefits as the weight of
the medical evidence of record demonstrated that appellant had no continuing injury-related
disability as a result of his injury.
On November 18, 2003 appellant, through her attorney, objected to the proposed
termination of benefits. In reports dated September 4 to November 7, 2003. Dr. Govindarajan to
opined that appellant was totally disabled due to her work injuries.
By decision dated December 2, 2003, the Office terminated appellant’s wage-loss
compensation. The Office noted that appellant’s medical benefits referable to the employment
injury remain uninterrupted.
On September 23, 2004 appellant, through her attorney, requested reconsideration of the
decision terminating her benefits. He contended that the Office should expand its acceptance of
appellant’s claim to include “all compensable injuries and conditions sustained by [appellant] as
a result of the federal employment-related incident of February 21, 2002.” Appellant’s attorney
further contested the Office’s decision to terminate compensation benefits effective
December 2, 2003, as Dr. Govondarajan established that appellant had residuals of her accepted
conditions. It was further argued that the reports of Dr. Khachadurian and Dr. Stewart were
based on an inaccurate history of symptoms and an incomplete and inaccurate factual
background. On April 8, 2004 Dr. Govindarajan rated impairment to the whole person as
follows: six percent due to cervical disc disease, three percent due to thoracic disc disease, seven
percent due to lumbar disc disease, two percent due to right knee meniscectomy and five percent
due to carpal tunnel syndrome in the upper extremity. In a June 8, 2004 addendum,
Dr. Govindarajan noted that appellant was totally disabled from gainful employment. On
August 19, 2004 he noted that he last saw her on December 12, 2003. On January 2, 2004
appellant underwent an MRI scan on her right knee, which was interpreted by

3

Dr. Jason L. Hodges as showing a small joint effusion and inferior surface tear of the posterior
horn of the medial meniscus. Dr. Hodges also noted mild chondromalacia patella.
By decision dated January 7, 2005, the Office denied modification of the December 2,
2003 decision. Additionally, the Office denied expanding the acceptance of appellant’s claim.
On March 29, 2005 appellant filed an appeal to the Board from the January 7, 2005
decision. As the Office did not forward the case record in a timely fashion, the Board remanded
the case for reconstruction and proper assemblage of the case record. The Board noted that, in
order to fully protect appellant’s appeal rights, the Office should issue a new decision.2
On March 19, 2007 the Office reissued the January 7, 2005 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation of the Act; that an injury was sustained while 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.4
Causal relationship is a medical issue and the medical issue generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors.6 The opinion of the physician must be based on a complete
factual and medical background of the claimant7 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.8

2

Docket No. 05-1004 (issued September 6, 2006).

3

5 U.S.C. §§ 8101-8193.

4

Calvin E. King, 51 ECAB 394 (2000); Caroline Thomas, 51 ECAB 451 (2000).

5

John J. Montoya, 54 ECAB 306 (2003).

6

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

Judy C. Rogers, 54 ECAB 693 (2003).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a work injury that occurred on
February 21, 2002 resulting in a lumbar sprain; sprain of the neck, right hip and thigh; contusion
of the right knee, wrist and hand; and right meniscal tear. On appeal, appellant’s attorney
contends that the Office should expand the class of accepted conditions to “include all conditions
outlined in the medical evidence of file.” The Board notes that it is unclear from the brief what
specific conditions appellant’s attorney contends should be accepted. In an April 8, 2004 report,
Dr. Govindarajan listed his impressions as lumbar sprain/strain, cervical sprain/strain, right hip
strain, right knee contusion and right wrist contusion -- conditions which were accepted as
resulting from the February 21, 2002 injury. He did note that the MRI scans conducted on
June 24, 2002 showed a mild disc bulge at C3-4 and C4-5, L4-5 disc desiccation and disc
bulging a herniated nucleus pulposus at T1-2 and a subtle tear of the posterior horn of the medial
meniscus. Appellant’s claim was not accepted for herniated disc, disc bulge, herniated nucleus
pulposus or small joint effusion. Dr. Govindarajan merely related that these conditions were
found on the MRI scans. He did not provide an opinion relating these conditions to appellant’s
accepted work injury. The physicians interpreting the MRI scans did not relate these conditions
to the accepted employment injury. A June 8, 2004 note merely indicated that, as of May 21,
2004, appellant was found disabled. The report August 19, 2004 basically repeats the
information in the prior reports. Dr. Govindarjan opined that appellant had cervical spine disc
disease, lumbar spine disc disease, thoracic disc disease and bilateral carpal tunnel syndrome, in
addition to other accepted conditions. However, he did not provide a rationalized medical
opinion addressing how these conditions were related to appellant’s accepted injury.
Dr. Govindarjan merely noted that the accepted work injury was a competent provocative cause
of the impairment and disability and was causally related. He failed to provide adequate
explanation in support of his stated conclusion. Medical conclusions unsupported by rationale
are of diminished probative value.9 A January 2, 2004 MRI scan of appellant’s right knee shows
small joint effusion, inferior surface tear of the posterior horn of the medial meniscus and mild
chondromalacia patella. Dr. Hodges did not offer an opinion as to the cause of these conditions
or how they relate to appellant’s accepted work injury.
Accordingly, the evidence of record does not support that the Office should have
accepted appellant’s claim for additional medical conditions. The fact that a condition is
mentioned in a medical report along with other accepted conditions does not infer that it is
related to the work injury. An award of compensation may not be based on surmise, conjecture,
speculation or upon appellant’s own belief that there was a causal relationship between her
claimed condition and her employment.10 Accordingly, the Office properly limited the accepted
conditions to lumbar sprain, sprain of the neck, right hip and thigh; contusion of the right knee,
wrist and hand; and right meniscal tear.

9

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

10

Patricia J. Glenn, 53 ECAB 159 (2001).

5

LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.11 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.12
It is well established that, when 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.13
ANALYSIS -- ISSUE 2
In the instant case, a conflict arose between appellant’s treating physician,
Dr. Govindarajan, and the second opinion physician, Dr. Khachadurian, with regard to whether
there was any continuing disability due to the accepted injury. Dr. Govindarajan opined that
appellant was totally disabled as a result of her work-related injuries. Dr. Khachadurian opined
that appellant had recovered from her work injuries and was capable of returning to her usual
work as a tax examiner. In order to resolve the conflict between these physicians, the Office
properly referred appellant to Dr. Stewart, selected as the medical referee, who found that
appellant was capable of performing full work in her duties as a tax examiner, although he did
note that she should not be asked to squat, kneel or climb ladders. Dr. Stewart noted that she
made a satisfactory recovery from her injuries and required no further orthopedic follow-up
therapy or diagnostic studies as there was “little in the way of objective findings” to support her
subjective complaints. He pointed out that there was no objective evidence in appellant’s neck
or back to support MRI scan findings. Based on the well-rationalized opinion of Dr. Stewart, the
Office properly terminated benefits effective December 2, 2003. In reports dated September 4 to
November 7, 2003, Dr. Govindarajan again stated that appellant was totally disabled from her
work injuries. It is well established that the subsequently submitted reports of a physician on one
side of a conflict of medical opinion are generally insufficient to overcome the weight of the
impartial medical specialist or to create a new conflict of medical opinion.14 The new reports of
Dr. Govindarajan repeated the conclusions stated in his prior reports. The Board, therefore, finds
these reports are insufficient to overcome the weight according to Dr. Stewart, the impartial
medical examiner.

11

Curtis Hall, 45 ECAB 316 (1994).

12

Jason C. Armstrong, 40 ECAB 907 (1989).

13

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

14

Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

LEGAL PRECEDENT -- ISSUE 3
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating benefits shifts to appellant.15 In order to prevail,
she must establish by the weight of the reliable, probative and substantial evidence that she had
an employment-related disability, which continued after termination of compensation benefits.
ANALYSIS -- ISSUE 3
In the instant case, appellant submitted reports by Dr. Govindarajan dated April 8 to
August 19, 2004, in support of her contention that she had residuals of her work-related injuries.
The April 8, 2004 report and June 8, 2004 addendum discuss an impairment rating, which is not
relevant to the termination issue. Moreover, Dr. Govindarajan noted that he had not seen
appellant since December 12, 2003. His conclusion in his August 19, 2004 report that
appellant’s work injury was the provocative cause of her disability did not provide any
discussion of the findings from examination that he considered in making his determination.
Counsel contends that the opinions of Drs. Khachadurian and Stewart were not based on
an accurate factual background. Dr. Stewart indicated that appellant had not taken her
medications the date of his examination. Counsel noted that she did not take her medication
because she had to drive that date. There is no indication that Dr. Stewart’s statement was
incorrect or how this observation gave rise to any factual inaccuracy. Appellant also contends
that Dr. Stewart was inaccurate as to the amount of driving she performed prior to the
examination and the car she drove. These matters are largely irrelevant to the findings of the
physician on examination of appellant. Appellant contends that Dr. Khachadurian incorrectly
diagnosed cervical and lumbar sprain with no evidence of herniated discs or either cervical or
lumbar spine or thoracic spine when prior the MRI scans showed disc herniations.
Dr. Khachadurian reviewed all the medical evidence, including the MRI scans. His opinion was
not based on inaccurate information. As noted the Office did not accept any herniated discs as
related to the accepted injury.
Appellant has not met his burden of proof to show that she had any continuing disability
after termination of compensation.
CONCLUSION
The Board finds that appellant has not established that his claim should be accepted for
additional conditions. The Office properly terminated appellant’s compensation benefits
effective December 2, 2003 and that she did not establish that she had any continuing disability
after that date.

15

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2007 is affirmed.
Issued: March 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, WEST FARMS
STATION, Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-985
Issued: January 25, 2011

Case Submitted on the Record

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

JURISDICTION
On February 25, 2010 appellant filed a timely appeal of the December 4, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his claim for a traumatic
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained head, neck and back injuries on October 21,
2009, as alleged.
FACTUAL HISTORY
On October 21, 2009 appellant, then a 59-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained head, neck and back injuries on that date. He received medical
treatment at St. Barnabas Hospital that day. On the claim form, Shanell Cordero, a supervisor,
stated that appellant injured himself while in the performance of duty. In an October 21, 2009
accident report, she stated that appellant told her that he was attacked by an unidentified man
while delivering a package on his route. The man took a package from him and fled the scene by

car. A police sergeant on the scene of the attack telephoned Ms. Cordero about the incident.
Ms. Cordero arrived on the scene and accompanied appellant to St. Barnabas Hospital by
ambulance. At the hospital, x-rays were taken of his head, neck and shoulder. Appellant was
released from the hospital on the date of injury.
By letter dated October 30, 2009, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It requested a rationalized medical report from
an attending physician which described results of examination and tests, a firm diagnosis,
treatment provided and an opinion with medical reasons on whether the October 21, 2009
incident caused or aggravated his claimed conditions. Appellant was allowed 30 days to submit
such evidence. He did not respond.
In a December 4, 2009 decision, the Office denied appellant’s claim. It found the factual
evidence sufficient to establish that the October 21, 2009 incident occurred at the time, place and
in the manner alleged, but found that appellant failed to submit any medical evidence
establishing an injury causally related to the accepted employment incident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States within the meaning of the Act,” that the claim was filed within
the applicable time limitation period of the Act, that an injury was sustained while 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.3 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.4
To determine whether a traumatic injury was sustained in the performance of duty, the
Office must first resolve whether fact of injury is established. First, an employee has the burden
of demonstrating the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish a causal

1

Following the issuance of the Office’s December 4, 2009 decision, appellant submitted additional evidence to
the Office. He also submitted additional evidence on appeal. The Board cannot consider evidence that was not
before the Office at the time of the final decision. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). Appellant
may resubmit this evidence and any legal contentions to the Office accompanied by a formal written request for
reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Gary J. Watling, 52 ECAB 278 (2001).

2

relationship between the employment incident and the alleged disability and/or condition for
which compensation is claimed.5
Rationalized medical opinion evidence is medical evidence, which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, 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.6 Neither the fact that appellant’s condition became apparent during a period of
employment nor his belief that the condition was caused by his employment, is sufficient to
establish a causal relationship.7
ANALYSIS
The Office accepted as factual that appellant was attacked on October 21, 2009 while in
the performance of duty. While the traumatic incident is established, the Board finds that
appellant failed to establish a causal relationship between any head, neck or back injuries and the
October 21, 2009 employment incident. The Office’s October 30, 2009 developmental letter
specifically requested that he submit a rationalized medical opinion from his attending physician
addressing whether the accepted employment incident contributed to the claimed injuries.
Appellant did not submit any medical evidence in response to the Office’s request. The Board
finds, therefore, that he failed to meet his burden of proof.8
Although the Office denied appellant’s claim of injury, it did not adjudicate the issue of
whether he should be reimbursed for incurred medical expenses. Ordinarily, the employing
establishment will authorize treatment of a job-related injury by providing the employee with a
properly executed CA-16 within four hours.9 Pursuant to section 8103 of the Act,10 however, the
Office has broad discretionary authority to approve unauthorized medical care which it finds
necessary and reasonable in cases of emergency or other unusual circumstances.11 It may
exercise its discretion to authorize medical care even if a Form CA-16 has not been issued and

5

Id.

6

Solomon Polen, 51 ECAB 341 (2000).

7

D.I., 59 ECAB 158 (2007); Dennis M. Mascarenas, 49 ECAB 215 (1997); Ruth R. Price, 16 ECAB 688,
691 (1965).
8

See Donald W. Wenzel, 56 ECAB 390 (2005).

9

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
10

5 U.S.C. § 8103.

11

Val D. Wynn, supra note 9; 20 C.F.R. § 10.304.

3

the claim is subsequently denied. Payment in such situations is determined on a case-by-case
basis.12
Appellant’s supervisor verified that appellant was attacked by an unidentified person
while delivering a package on his route. He was transported by ambulance to St. Barnabas
Hospital where he received treatment that day. In denying appellant’s claim, the Office failed to
consider whether emergency or otherwise unusual circumstances were present such that
reimbursement of medical expenses would be appropriate in this case. The Board finds that the
circumstances of the case warrant additional development of this issue. The case will be
remanded to the Office for further development, to be followed by the issuance of a de novo
decision on this aspect of appellant’s claim.
CONCLUSION
The Board finds that appellant failed to establish that he sustained head, neck or back
injuries on October 21, 2009, as alleged. The case is remanded to the Office for adjudication of
the issue of reimbursement of medical expenses related to his treatment on October 21, 2009.

12

See Thomas W. Keene, 42 ECAB 623 (1991); see also Federal (FECA) Procedure Manual, supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in finding that appellant did not meet his burden
of proof. The decision is set aside as to the issue of reimbursement of medical expenses. The
case is remanded for further action consistent with this decision.
Issued: January 25, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middle Village, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 13-733
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2013 appellant, through her representative, filed a timely appeal from a
September 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contends that she sustained an emotional condition as a result of
many issues with her supervisor, Rudy J. Marinacci.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 24, 2011 appellant, then a 61-year-old distribution window clerk, filed a
traumatic injury claim alleging that she suffered from high blood pressure and emotional stress
as a result of performing her federal duties. In an accompanying statement, she indicated that on
September 23, 2011 she opened the window by herself and was looking for packages for a
customer when Mr. Marinacci yelled at her and incorrectly told her that she was looking for
packages at the wrong place. Appellant noted that he yelled at her in a threatening tone when
she went to retrieve certified mail and told her that she was backing up the line on purpose and
that he was going to watch her all day. She noted that at this point she began to feel sick and left
work.
The employing establishment controverted the claim. It alleged, inter alia, that
appellant’s reaction was to administrative matters and was self-generated and not compensable.
In support thereof, the employing establishment submitted a statement dated October 6, 2011 by
Mr. Marinacci who noted that on September 23, 2011 appellant was the only clerk and that he
had gone to the front to assist customers. He noted that appellant had been looking for a package
in the wrong area and that appellant also had gone to pick up certified mail but that he told her
that he was doing customer pick-ups and that she should remain on the screen line and not
attempt to use slow-down tactics to back up the line. Mr. Marinacci noted that, after he retrieved
the certified letter, appellant stated that she was going home because she could not take working
with him. He contended that he did not raise his voice, threaten or scream at her.
By decision dated November 14, 2011, OWCP denied appellant’s claim for
compensation as she had not submitted sufficient evidence to establish that a medical condition
arose during the course of employment and within the scope of compensable work factors.
On November 17, 2011 appellant requested an oral hearing before an OWCP’s hearing
representative.
At the hearing held on March 19, 2012, appellant’s counsel contended that, although the
injury claim was filed based on circumstances that happened on a particular date, the claim was
actually due to culmination of events that took place involving Mr. Marinacci and appellant.
Appellant testified that she worked for the employing establishment for 25 years, and was
stationed at the Middle Village Station for 14 years. She indicated that Mr. Marinacci came to
the station in 2009 and that her problems with him started on October 19, 2009 when she
returned to work after vacation and Mr. Marinacci told her that she was not to continue working
as she was still on vacation. Appellant stated that she was returning one week of vacation, but
had to take another week of vacation against her will. She noted that in December 2009
Mr. Marinacci screamed and yelled at her for parking her car in a parking lot which she had
previously been allowed to do under Supervisor Perez but he told her he was going to give her a
letter of warning and put her in for 14 days of suspension over the matter, which caused her
stress. She noted that in January 2010 she requested two weeks’ vacation but that Mr. Marinacci
denied vacation and told her that nobody was going on vacation. Appellant noted that, in
January 2011, New York was hit by a big storm and most of the employees could not go to work.
She testified that everyone was paid except her, and that when she inquired about this situation,
he told her not to worry that he would pay her, but that she had to wait about three months to get

2

paid. Appellant stated that in February 2011 he only approved four hours of sick leave and that
she had to take leave without pay for six days. She also alleged that he erroneously claimed she
did not punch her time card for one day and so she was not paid that date. Appellant alleged that
he changed her lunch hours. She stated that he required her to get permission to go to the
bathrooms. Appellant contended that Mr. Marinacci criticized her clothes and shoes. She stated
that he turned down her request to take off on Good Friday and would not accept her note from
her pastor that she was at Good Friday service. Appellant noted that as soon as Mr. Marinacci
was transferred to the Forest Hills station, things got better, but that, when he returned, on
September 23, 2011 she was not allowed to do registry job again, he made her work the window.
She described the aforementioned incident with regard to picking up mail and certified letters.
Appellant noted that he told her that she was doing a bad job and was going to watch her all day.
She stated that she started shaking and left but returned to get something and he continued the
verbal abuse. Appellant described the rest of the day, including her illness and treatment. She
noted that she has not returned to work for the employing establishment. Appellant testified that
she filed numerous complaints with the Equal Employment Opportunity Commission (EEOC).
Daniel Muentes, a witness, testified that he had been a letter carrier for 28 years and was
shop steward at the Forest Hills station. Mr. Muentes described incidents with Mr. Marinacci at
the Forest Hills station, and contended that, in the two months he worked there, Mr. Marinacci
created an unhealthy work floor and a hostile environment. He noted issues where
Mr. Marinacci refused to pay people who were on leave. Mr. Muentes noted that there was a
petition filed to remove Mr. Marinacci from the Temple Hills office and he was then transferred
back to Middle Village.
Statements were submitted by Bart Lerner, Andrew Fontanetta and Theresa DeMarrais.
In a statement dated March 1, 2012, Mr. Lerner indicated that on September 23, 2011 he was in
the back of the office sorting mail when he heard Mr. Marinacci yelling at appellant who was
working on the window operation by herself, as the office was shorthanded that day. He stated
that he heard Mr. Marinacci tell appellant that she was wasting time in retrieving a package for a
customer and that he was going to watch her all day. Mr. Lerner noted that appellant was visibly
shaken, and started crying and left. He indicated that he completed the customer’s transaction
for appellant. Mr. Lerner noted numerous complaints were filed against Mr. Marinacci.
In a statement dated March 13, 2011, Mr. Fontanetta stated that he worked for the Forest
Hills office for almost 25 years and has been a shop steward for 14. He discussed various
incidents in that office involving Mr. Marinacci. Ms. DeMarrais indicated that she had been a
clerk in the Forest Hills branch for 20 years and that Mr. Marinacci was evil and treated her so
horribly that she had to go for psychiatric help. She stated that there was a petition to have
Mr. Marinacci removed from Temple Hills.
The record contains a copy of an undated letter from Middle Village employees
requesting the immediate removal of Mr. Marinacci from the employing establishment because
his alleged bullying tactics as manager have caused resentment and animosity. The letter
continued that he was belligerent, condescending and very unprofessional in his demeanor to
fellow employees.

3

In a March 29, 2012 settlement agreement before EEOC, the employing establishment
agreed to rescind the letter of warning regarding failure to follow instructions for unauthorized
parking of a vehicle from all of appellant’s files, and that the employing establishment agreed to
pay $1,350.00 to appellant in compensatory damages. The settlement agreement indicated that
the employing establishment did not admit to any wrongdoing.
By decision dated May 10, 2012, OWCP’s hearing representative affirmed the denial of
appellant’s claim as the evidence did not establish any compensable factors of employment.
On June 6, 2012 appellant requested reconsideration. In support of her request, she
submitted letters with regard to settlements for the grievances she filed against the employing
establishment. All of these letters were on the letterhead of the employing establishment. In a
January 5, 2010 letter, it was agreed that appellant would be paid administrative leave for the
balance of her tour on November 16, 2009, and will be credited for any leave used. In a
January 8, 2010 letter, it was agreed that appellant would be paid administrative leave for the
week of November 21, 2009. In an April 1, 2011 letter, it was agreed that appellant would be
paid for eight hours plus one hour of overtime for March 17, 2011. In a separate April 1, 2011
letter, the employing establishment agreed to pay appellant 16 hours of sick leave for an
unspecified date. In a May 19, 2011 letter, a settlement was reached wherein appellant was to
utilize annual leave for Good Friday. In a November 4, 2011 proposed settlement letter signed
by a labor relations specialist, it was proposed that appellant be reimbursed for all the leave she
used based on the September 23, 2011 incident and that the hostile environment and sexual
harassment cease. It was proposed that Mr. Marinacci not make threatening remarks to appellant
and treat her equal to other station employees including male employees in the station.
However, this letter was not countersigned and a handwritten note on the letter states,
“Requested remedy not given; not paid or approved for [compensation].”
By decision dated September 5, 2012, OWCP determined that the evidence was not
sufficient to modify the previous decision.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
an employee must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.2 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.3 Where the disability results from an
2

L.D., 58 ECAB 344 (2007).

3

A.K., 58 ECAB 119 (2006).

4

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.4
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work
in a particular environment or to hold a particular position.5
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.6 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.7
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.8
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. Mere disagreement with or dislike of actions taken by a
supervisor or manager will not be compensable absent evidence establishing error or abuse.9
Although the handling of leave requests and attendance matters are generally related to
employment, they are administrative matters and not a duty of the employee.10
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the facts alleged or implicated by the employee did, in fact,
occur.11 Mere perceptions of harassment or discrimination are not compensable under FECA.12
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.13 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.14
4

5 U.S.C. §§ 8101-8193. Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

J.F., 59 ECAB 331(2008); Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

See William H. Fortner, supra note 7; see also H.C., Docket No 12-457 (issued October 19, 2012).

10

C.T., Docket No. 08-2160 (issued May 7, 2009).

11

K.W., 59 ECAB 271 (2007).

12

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

13

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

14

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005).

5

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
factors of employment and may not be considered.15 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.16 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.17
ANALYSIS
Appellant has not alleged that she experienced an emotional reaction to her regular or
specially assigned duties, or to a requirement imposed by her employment. She alleged that she
sustained an emotional condition as a result of a number of incidents involving her supervisor,
Mr. Marinacci. OWCP denied appellant’s emotional condition claim on the grounds that she did
not establish any compensable employment factors. While she filed a traumatic injury claim,
OWCP properly considered this claim as an occupational disease claim as appellant attributed
her condition to events occurring over more than one shift.18 The Board must initially review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of FECA.
Appellant alleges that numerous incidents occurred with regard to improperly denying
her request for paid leave and in switching the time for her lunch hour. The Board finds that
these allegations are related to administrative or personnel matters unrelated to employee’s
regular or special assigned work duties and do not fall within coverage of FECA absent evidence
showing error or abuse on the part of the employing establishment.19 There is no evidence that
gives rise to abuse in Mr. Marinacci’s assignment of appellant’s lunch hour. There is some
evidence that an error was made in denying appellant certain hours of sick and annual leave. The
Board notes, however, that these errors were corrected and appellant did receive payment for the
hours she alleged were improperly denied. The mere fact that actions of the employing
establishment were later modified does not, in and of itself, establish error or abuse by
15

D.L., 58 ECAB 217 (2006).

16

K.W., supra note 11; Matilda R. Wyatt, supra note 6.

17

Robert Breeden, 57 ECAB 622 (2006).

18

A traumatic injury is defined as a condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift. 20 C.F.R.
§ 10.5(q).
19

Judy L. Kahn, 53 ECAB 321 (2002) (matters involving the use of leave are generally not considered
compensable factors of employment as they are administrative functions of the employer and not duties of the
employee).

6

management in its administrative duties.20 The fact that Mr. Marinacci reprimanded appellant
for improperly parking her car also does not rise to the level of error or abuse on the part of
management. In this case, there is no evidence to establish error or abuse regarding these
administrative matters.21
There is evidence in support of an incident that occurred on September 23, 2011, as
statements by appellant, Mr. Fontanetta and Mr. Lerner support that there was a verbal
altercation on that date between Mr. Marinacci and appellant. On that date Mr. Marinacci
reprimanded appellant for allegedly looking for a package in the wrong area and for picking up a
certified mail item when he told her to remain on the window. Mr. Marinacci denied yelling at
appellant; however, Mr. Lerner stated that he heard him yell at appellant from the back of the
office. Mr. Lerner also noted that, as he moved closer, he heard Mr. Marinacci tell appellant that
she was wasting time and that he was going to watch her all day. There is a proposed settlement
letter in the record addressing this incident, but it was not countersigned by the employing
establishment and it does not appear from the record that appellant was given the relief requested
in the settlement letter. Although the Board has recognized the compensability of verbal abuse
in certain circumstances, this does not imply that every statement uttered in the workplace will
give rise to coverage under FECA.22 The Board has generally held that being spoken to in a
raised voice does not of itself constitute verbal abuse or harassment.23 Although Mr. Marinacci
may have spoken to appellant in a raised voice and his behavior may not have been that of an
ideal supervisor, appellant has not established that this incident rose to the level of establishing
verbal abuse. Generally, complaints about the manner in which a supervisor performs his or her
duties or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside
the scope of coverage provided by FECA.24 The fact that Mr. Marinacci criticized appellant’s
work performance, possibly in a raised voice, does not indicate that this was sufficiently
egregious to establish a compensable factor under FECA.
With regard to the remaining allegations, mere dislike of actions taken by a superior will
not be compensable absent evidence establishing error or abuse.25 Mr. Marinacci’s alleged
criticism of appellant’s dress did not amount to error or abuse.
The Board notes that appellant submitted other testimony and statements in support of
her claim. Mr. Muentes, Mr. Fontanetta and Ms. DeMarrais worked with Mr. Marinacci at a
different location and were therefore not privy to the specific allegations in this case. The copy
of the letter asking that Mr. Marinacci be removed is not relevant to the specific facts of this
case; furthermore, the letter is unsigned and no names are listed with regard to who wrote the
letter.
20

Peter D. Butt, Jr., 56 ECAB 227 (2004).

21

V.D., Docket No. 07-1873 (issued July 10, 2008).

22

Harriet J. Landry, 47 ECAB 543, 547 (1996).

23

T.G., 58 ECAB 189 (2006).

24

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

25

D.P., Docket No. 12-1859 (issued March 27, 2013).

7

For the reasons set forth above, appellant has not established any compensable
employment factors under FECA and, therefore, has not met her burden of proof in establishing
that she sustained an emotional condition in the performance of duty.26
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. §§ 10.604 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2012 is affirmed.
Issued: March 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

26

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. R.C., Docket No. 13-1075 (issued December 23, 2013); see also Margaret S. Krzycki, 43 ECAB
496, 502-03 (1992).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1436
Issued: February 21, 2020

Case Submitted on the Record

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

JURISDICTION
On June 17, 2019 appellant, through counsel, filed a timely appeal from a January 24, 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 her burden of proof to establish a respiratory
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 22, 2016 appellant, then a 52-year-old disability compliance specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed asthma due to exposure to
harmful substances in the workplace. She advised that she first became aware of her claimed
condition and its relation to factors of her federal employment on March 23, 2016. Appellant
stopped work on March 24, 2016.
In an accompanying statement, appellant described instances in the summer of 2015 and
March 2016 when she had coughing spells while working at the employing establishment worksite
in Gaithersburg, Maryland. She also described a coughing spell she experienced in the summer of
2015 while working at the worksite in L’Enfant Plaza, Washington, District of Columbia, and in
December 2015 while working at the worksite in Waldorf, Maryland. Appellant asserted that she
was exposed to harmful allergens in the air at these locations.
Appellant subsequently submitted an April 20, 2016 report from Dr. Victor E. Herry, a
Board-certified internist and pulmonologist, who reported that appellant presented to his office on
October 19, 2015 after visiting the emergency room as a result of facial swelling. She subsequently
underwent skin testing and was found to be allergic to aeroallergens, including dust, molds, dander,
weeds, grasses, trees, and pollen. Dr. Herry indicated that appellant also presented to his office on
March 31, 2016 with excessive coughing and accompanying hoarseness which she reported had
begun at work. He reported that, after being away from the workplace, appellant’s coughing
stopped and her lungs became completely clear without wheezing. Dr. Herry opined that
appellant’s work environment contained some aeroallergens which resulted in her having
hyperirritable airways and experiencing excessive coughing and wheezing.
In a May 9, 2016 attending physician’s report (Form CA-20), Dr. Herry listed the date of
injury as March 23, 2016 and the diagnosis due to the employment activity as mild persistent
asthma with status asthmaticus. He checked a box marked “Yes” to indicate that the diagnosed
condition was caused or aggravated by the employment activity and added the notation,
“Environmental agents at work can aggravate the patient’s asthma symptoms such as coughing
and [shortness of breath].”
In a May 19, 2016 development letter, OWCP requested that appellant submit additional
factual and medical evidence, including a physician’s opinion supported by a medical explanation
as to how the reported employment factors caused or aggravated a medical condition. It provided
a questionnaire for her completion which posed a series of questions regarding the reported
employment factors. OWCP afforded appellant 30 days to respond.3

3
On May 19, 2016 OWCP also requested additional information from the employing establishment which was to
be submitted within 30 days.

2

In response, appellant provided a June 3, 2016 statement in which she provided additional
details regarding the incidents at work she previously identified. She advised that she only suffered
asthma attacks at work and noted that her coughing episodes were accompanied by wheezing. The
employing establishment submitted an undated letter from the manager of its disability programs
answering a series of questions posed by OWCP. The manager indicated that May 9, 2013 testing
at the L’Enfant Plaza worksite revealed airborne fungal/mold populations that were consistent with
those found outdoors.4
Appellant submitted a June 20, 2016 report from Dr. Herry who noted that appellant was
first seen on October 19, 2015 after a visit to the emergency room for angioedema and that she
first reported having experienced wheezing when she was seen on March 31, 2016. She
complained of excessive coughing in the workplace and advised that she developed hoarseness as
a result. Dr. Herry indicated that appellant reported that whenever she was at work she experienced
violent coughing with no control, but that she had no symptoms away from work. He advised that
asthma was a clinical syndrome characterized by episodic reversible airway obstruction, increased
bronchial reactivity, and airway inflammation. Dr. Herry noted that environmental exposure in
sensitized individuals was a major inducer of airway inflammation.5 In a July 15, 2016 report, he
recommended that various measures be taken at appellant’s worksites, including the cleaning of
all air ducts.
Appellant also submitted a copy of a report detailing August 29, 2016 testing which was
conducted at the Gaithersburg, Maryland worksite by a private company. It indicated that the
indoor air quality comfort parameters of the tested area (including temperature, relative humidity,
and carbon dioxide) were within acceptable comfort parameters which were below exposure limits
and below levels that might facilitate mold growth. The total volatile organic compound (VOC)
levels were found to be at the low range of the “multifactoral exposure range” which might cause
irritation if other stressors or exposure irritation are expected.6 The study provided that the VOC
levels did not represent a “negative impact” to the indoor air quality and advised that there was no
discernable difference in the measured and observed parameters between the complaint and control
areas. The laboratory analytical results indicated that the airborne fungal spore populations
identiﬁed in the assessed areas were less than the exterior control samples, were consistent with
populations of fungi that were common outdoors, and did not pose a risk to most occupants with
respect to the presence of unusual fungal populations or fungal species of concern. The report
noted, however, that different individuals might have differing sensitivities to mold and other
allergens.
By decision dated October 21, 2016, OWCP accepted that appellant was exposed to low
levels of dust and mold in her workplace. However, it denied her claim, finding that she had not
submitted medical evidence sufficient to establish a medical condition casually related to the
4
The employing establishment attached a report detailing the May 9, 2013 testing which was conducted at the
L’Enfant Plaza worksite by a private company.
5

Appellant also submitted a June 29, 2016 report from Dr. Bahram Redjaee, a Board-certified internist and
pulmonologist, who diagnosed “severe allergy resulting in unknown.”
6

The report indicated that the mold samples collected also included dust particles.

3

accepted employment factors. OWCP concluded, therefore, that appellant had not met the
requirements to establish “an injury and/or medical condition causally related to the accepted work
event(s).”
On July 26, 2017 appellant, through counsel, requested reconsideration of the October 21,
2016 decision. Counsel argued that the reports of Dr. Herry established appellant’s claim.7
Appellant submitted a June 16, 2017 report from Dr. Herry who diagnosed unspecified
asthma (uncomplicated) and other asthma. Dr. Herry advised that appellant’s wheezing was
triggered by her work environment and opined that, based on his examination and review of the
medical history, appellant’s exposure to dust, molds, and other aeroallergens (as documented in
the August 29, 2016 study) contributed to her development of occupational asthma. He indicated
that, although the August 29, 2016 air quality study concluded that the overall air quality had not
been negatively impacted, it should be noted that different individuals might have differing
sensitivities to mold spores and other aeroallergens and might have a reaction to aeroallergens at
low levels that are deemed safe to most. Prior skin testing had shown that appellant was allergic
to many aeroallergens, including dust and molds, making her particularly sensitive to exposure to
these aeroallergens.
Dr. Herry further indicated that exposure to aeroallergens in a sensitized individual such as
appellant, even in small quantities, could cause the airways to become inflamed and narrowed,
thereby leading to increased bronchial reactivity that caused coughing and wheezing. He posited
that this increased bronchial activity was what caused asthma and this process happened to
appellant as a result of continued exposure to mold, dust, and other aeroallergens in her work
environment. He opined that this mechanism of injury was consistent with appellant’s
development of occupational asthma and her immediate onset of respiratory symptoms after
exposure to her work environment, which improved while away from work, and was also
consistent with continued exposure to mold, dust, and other aeroallergens in her work
environment, thereby contributing to her development of occupational asthma. Dr. Herry
concluded, “Therefore, based on my objective findings and within reasonable medical certainty, it
is my medical opinion that the patient’s continued exposure to mold, dust, and other aeroallergens
in her work environment since March 23, 2016 has contributed to her development of occupational
asthma.”
The employing establishment submitted January 17 and August 17, 2017 letters in which
agency officials argued that the results of the 2016 air quality study diminished the validity of
appellant’s claim for an employment-related respiratory condition.
By decision dated October 24, 2017, OWCP denied modification of the October 21, 2016
decision.
On October 23, 2018 appellant, through counsel, requested reconsideration of the
October 24, 2017 decision. In a September 12, 2018 report, Dr. Herry provided a discussion of

7
On January 17, 2017 appellant filed a notice of recurrence (Form CA-2a). However, her filing of this form was
premature as her claim had not yet been accepted.

4

the cause of appellant’s occupational asthma which was essentially the same as that contained in
his previously submitted June 16, 2017 report.
By decision dated January 24, 2019, OWCP denied modification of the October 24, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.9 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).14

8

Supra note 2.

9

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
10

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

11
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
12

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018).

14

Id.; Victor J. Woodhams, supra note 11.

5

ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant submitted a series of reports from Dr. Herry who found that appellant sustained
a respiratory condition due to exposure to harmful substances in the workplace. Dr. Herry
provided his most extensive discussions positing that appellant sustained employment-related
asthma in narrative reports dated June 16, 2017 and September 12, 2018. In these reports, he
explained that although the August 29, 2016 air quality study concluded that the overall air quality
had not been negatively impacted, it should be noted that different individuals might have differing
sensitivities to mold spores and other aeroallergens and might have a reaction to aeroallergens at
low levels that are deemed safe to most. Prior skin testing had shown that appellant was allergic
to many aeroallergens, including dust and molds, making her particularly sensitive to exposure to
these aeroallergens. This mechanism of injury was consistent with appellant’s development of
occupational asthma and her immediate onset of respiratory symptoms after exposure to her work
environment, which improved while away from work, and was also consistent with continued
exposure to mold, dust, and other aeroallergens in her work environment, thereby contributing to
her development of occupational asthma. Dr. Herry concluded that appellant’s continued exposure
to mold, dust, and other aeroallergens in her work environment since March 23, 2016 contributed
to her development of occupational asthma. The Board further notes that Dr. Herry also found, in
reports dated April 20 and May 9, 2016, that appellant’s respiratory condition was related to
exposure to allergens in the workplace.
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter.15 The Board finds that while Dr. Herry’s reports are insufficient to meet
appellant’s burden of proof, they raise an uncontroverted inference of causal relation between her
claimed respiratory condition and the accepted factors of her federal employment. Further
development of appellant’s claim is therefore required.16
On remand OWCP shall prepare a statement of accepted facts and refer appellant to an
appropriate Board-certified specialist for a second opinion examination and an evaluation
regarding whether she sustained a medical condition due to the accepted factors of her federal
employment. Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

See B.B., Docket No. 18-1321 (issued April 5, 2019).

16

See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: February 21, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McCLELLAN AIR FORCE BASE, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1571
Issued: December 26, 2007

Case Submitted on the Record

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

JURISDICTION
On May 22, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated April 25, 2007, which found that she received an
overpayment in the amount of $22,771.42, that she was without fault and set recovery at $340.80
from her continuing compensation payments. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the overpayment of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $22,771.42; and (2) whether the Office properly denied waiver
and determined that it would recover the overpayment by deducting $340.80 from her continuing
compensation payments.

FACTUAL HISTORY
On June 18, 1987 appellant then a 42-year-old aircraft mechanic, was struck in the head
by a 75-pound tail hook in the performance of duty.1 The Office accepted her claim for a
laceration of the head and contusion of the head and shoulders, cervical muscle spasm,
concussive disorder and post-traumatic stress disorder. It paid appropriate compensation.
On December 6, 1989 the Office found that appellant was recently reemployed as a lightduty worker with wages of $576.80 per week, effective August 26, 1987, and adjusted her
compensation. The Office determined that the position fairly and reasonably represented her
wage-earning capacity.
By letter dated March 16, 1995, the Office informed appellant that a recent audit of her
file revealed that she was not entitled to continue to receive monetary benefits at the augmented
rate of pay for dependants, since her daughter turned 18 on December 7, 1990. Appellant was
advised that her compensation payment would reflect the overpayment deduction of $200.00 and
the compensation rate of two-thirds for no dependants.
In a letter dated March 1, 2002, the Office advised appellant that her compensation was
being reduced as she had no qualifying dependants for the augmented rate of 75 percent. She
would receive compensation at the statutory rate of 66 2/3 percent. Appellant was advised that
her compensation for the period February 24 to March 23, 2002 would equal the gross amount of
$2,399.00 or a net amount of $2,362.98.
On May 20, 2002 the Office made a preliminary finding that an overpayment of
$22,771.42 had occurred. The Office informed appellant that on March 5, 1995 her
compensation was reduced to the basic, 66 2/3 percent, rate as she no longer had any qualifying
dependants. Appellant was advised that when “the compensation rolls expired,” the Office
reinstated her compensation, though there was no break in compensation, but it incorrectly input
the augmented rate of 75 percent for the period December 10, 1995 to February 23, 2002. The
Office had rekeyed her information when her payments were due to expire and did not rekey the
information at the basic rate. The Office advised appellant that the information was rekeyed at
the 75 percent rate for dependants. The Office found that appellant was without fault in the
creation of the overpayment, as she had informed the Office that she had no dependants.
Appellant was further informed of her right to challenge the amount of the overpayment or
request a waiver of the overpayment by one of three methods including a request for a telephone
conference, a request for a written review of the record, or a request for a prerecoupment
hearing. If appellant wished a waiver of the overpayment, she was directed to submit financial
information by completing an overpayment recovery questionnaire. Appellant did not respond.
In a decision dated April 25, 2007, the Office finalized the 2002 preliminary
overpayment as to fact and amount. The Office found that appellant was without fault because
she informed the Office of her change in dependant status. The Office also noted that no
response was received from appellant in response to the letter of May 20, 2002 and that appellant
had not requested a prerecoupment hearing, nor completed an overpayment questionnaire or
1

The record reflects that appellant had one daughter, whose date of birth was December 7, 1972.

2

provided any other financial information. The Office determined that the amount of $340.80
would be withheld from appellant’s continuing compensation payments beginning May 13, 2007
and the overpayment would be reabsorbed by approximately June 30, 2012.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of her duty.2 If the disability is total, the United States shall pay the
employee during the disability monthly monetary compensation equal to 66 2/3 percent of her
monthly pay, which is known as her basic compensation for total disability.3 Under section
81104 of the Act, an employee is entitled to compensation at the augmented rate of three-quarters
of her weekly pay if she has one or more dependants. A child is considered a dependant if he or
she is under 18 years of age, is over 18 but is unmarried and incapable of self-support because of
a physical or mental disability or is an unmarried student under 23 years of age who has not
completed four years of education beyond the high school level and is currently pursuing a fulltime course of study at a qualifying college, university or training program.5
If a claimant receives augmented compensation during a period where she has no eligible
dependants, the difference between the compensation she was entitled to receive at the basic,
66 2/3 percent, compensation rate and the augmented, 75 percent, rate is an overpayment of
compensation.6
ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation has been created because appellant
was paid compensation at the augmented, 75 percent, rate applicable to compensationers with
dependants after she no longer had any dependants.
The record reflects that appellant had a dependant child who turned 18 on
December 7, 1990. The record indicates that, on March 5, 1995, appellant’s compensation was
reduced to the basic, 66 2/3 percent, rate due to her no longer having any qualifying dependants.7
2

5 U.S.C. § 8102(a).

3

Id. at § 8105(a).

4

5 U.S.C. § 8110.

5

5 U.S.C. § 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405. See Leon J. Mormann, 51 ECAB 680 (2000). See
also Federal Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.5(a) (December 1995).
6

Diana L. Booth, 52 ECAB 370 (2001) (the Board held that as the claimant received compensation at the
augmented rate for certain periods, even though she had no dependants, she received an overpayment of
compensation).
7

Any overpayment incurred from December 7, 1990 to March 5, 1995 is not before the Board on the present
appeal. There is no evidence that appellant’s daughter was a full-time student after reaching her 18th birthday or that
she otherwise qualified as a dependant after reaching age 18.

3

However, the Office incorrectly input the augmented rate of 75 percent into its automated
compensation rolls, for the period December 10, 1995 to February 23, 2002. On May 20, 2002
the Office advised appellant of its error in its preliminary overpayment finding. Appellant was
informed in the preliminary notice of the error and advised that she was not at fault as she had
informed the Office that she had no dependants. However, even though she was not at fault, the
Office’s error caused an overpayment of compensation to appellant as appellant should only
have received compensation at the basic, 66 2/3 percent, rate after her daughter reached the age
of 18. The Office’s failure to reduce the compensation from the augmented rate to the basic rate
resulted in an overpayment to appellant. The Board will affirm the Office’s April 25, 2007
decision on the issue of fact of overpayment.
The Board notes, however, that it is unclear how the Office derived the amount of the
overpayment as there is no overpayment calculation sheet or other detailed documentation
showing how the overpayment resulting from the Office’s error amounted to $22,771.42. While
it is clear that an overpayment exists, the exact amount of the overpayment is not. To comply
with Office procedure, an overpayment decision must contain a clearly written explanation
indicating how an overpayment was calculated.8 Consequently, the Board finds that the case is
not in posture regarding the amount of the overpayment. The Board further finds that, as the
amount of the overpayment may affect consideration of waiver eligibility and since there was a
nearly five-year delay between the issuance of the preliminary and final overpayment
determinations, the case is also not in posture for a decision with regard to whether appellant is
eligible for waiver of the overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment. However, the case is not in posture regarding the amount of the overpayment or
whether appellant is eligible for waiver of the overpayment.

8

Jenny M. Drost, 56 ECAB ___ (Docket No. 05-520, issued June 16, 2005). See Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2 (May 2004) (when an
overpayment is discovered, the Office will document the correct period of entitlement and the actual period paid and
arrange for certification of the calculation; the calculation of the overpayment must be in writing in the case record
and the Office should use the worksheet calculation capabilities of the Automated Compensation Payment System);
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(May 2004) (the Office’s preliminary decision must contain “a clearly written explanation indicating how the
overpayment was calculated”).

4

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded in part.
Issued: December 26, 2007
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 09-39
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On October 8, 2008 appellant filed a timely appeal from a February 6, 2008 merit
decision of the Office of Workers’ Compensation Programs, denying his claim for disability
compensation and a September 25, 2008 nonmerit decision, denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2 and 501.3(c), the Board has jurisdiction over the
merits of the case and over the September 25, 2008 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for
compensation from September 6, 2003 to January 11, 2004 following its termination of his
compensation for refusal of suitable work; and (2) whether the Office properly denied his request
for further merit review of his claim under section 8128.
FACTUAL HISTORY
This case is before the Board for the second time. By decision dated November 29, 2004,
the Board affirmed September 5 and November 13, 2003 Office decisions terminating

appellant’s compensation effective September 5, 2003 on the grounds that he refused an offer of
suitable work under 5 U.S.C. § 8106.1 The findings of fact and conclusions of law from the prior
decision are hereby incorporated by reference.
On September 6, 2007 appellant filed a claim for compensation on account of disability
(Form CA-7) requesting compensation for lost wages from September 1, 2003 to
January 11, 2004. He related that he lost pay because his physician did not release him to return
to work until January 12, 2004.
By decision dated February 6, 2008, the Office denied appellant’s claim for
compensation from September 1, 2003 to January 11, 2004 due to his accepted work injury. It
found that he was not entitled to compensation as it had terminated his compensation for refusing
suitable work under section 8106 of the Federal Employees’ Compensation Act. The Office
noted that appellant received compensation through September 6, 2003.
On September 4, 2008 appellant requested reconsideration of the February 6, 2008
decision. He enclosed medical evidence supporting that he was disabled for the period in
question and factual verification that he was off work from September 1, 2003 to
January 11, 2004.
By decision dated September 25, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was irrelevant and thus insufficient to
reopen his case for further review of the merits under section 8128.
LEGAL PRECEDENT -- ISSUE 1
The Office’s regulations provide that, after termination of compensation under section
8106(c) of the Act,2 a claimant has no further entitlement to compensation under sections 8105,
8106 and 81073 of the Act.4 However, the claimant remains entitled to medical benefits as
provided by 5 U.S.C. § 8103.5 Section 8106(c) serves as a penalty provision, barring an
employee’s future entitlement to compensation for the same injury based on a refusal to accept a
suitable offer of employment.6

1

Docket No. 04-358 (issued November 29, 2004). The Office accepted that on February 6, 2002 appellant, then a
53-year-old distribution clerk, sustained low back strain lifting and throwing bundles of mail. It placed him on the
periodic rolls effective June 16, 2002. The Office terminated appellant’s compensation effective September 5, 2003
on the grounds that he refused an offer of suitable work. Appellant subsequently accepted a job offer on
March 24, 2004.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. §§ 8105, 8106, 8107.

4

20 C.F.R. § 10.517(b).

5

Id.

6

See Joan F. Burke, 54 ECAB 406 (2003).

2

Office procedures provide:
“If the claimant does not accept the job, the claims examiner should prepare a
formal decision which provides full findings of facts as to why claimant’s reasons
for refusing the job are deemed unacceptable and terminate compensation under
section 8106(c)(2) of the Act as of the end of the roll period. Such a decision
should not be modified even if the claimant’s medical condition later deteriorates
and he or she claims a recurrence of total disability.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained low back strain due to a February 6, 2002
employment injury. By decision dated November 29, 2004, the Board affirmed the Office’s
termination of his compensation effective September 5, 2003 for refusing suitable work. On
September 6, 2007 appellant filed a claim for compensation from September 1, 2003 to
January 11, 2004 due to his February 6, 2002 work injury.8 By decision dated February 6, 2008,
the Office denied his claim after finding that he was not entitled to compensation due to his
refusal of suitable work.
The Office properly found that its September 5, 2003 decision terminating appellant’s
compensation for refusing suitable work served as a bar to any subsequent monetary
compensation as a result of the February 6, 2002 work injury. Section 8106(c) of the Act
provides that an employee who refuses suitable work is not entitled to further compensation for
total disability or permanent impairment.9 As the Office terminated appellant’s compensation
due to his refusal of suitable work and the Board affirmed the termination, he is barred from
future entitlement to wage-loss compensation for his 2002 employment injury.10 Appellant’s
claim for disability compensation is, therefore, precluded by section 8106(c).11
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(d)(1) (July 1997).
8

The Office paid appellant compensation until September 5, 2003.

9

5 U.S.C. § 8106(c); see also 20 C.F.R. § 10.517(a).

10

20 C.F.R. § 10.517.

11

Id; see Merlind K. Cannon, 46 ECAB 517 (1995).

12

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”

3

previously considered by the Office.13 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.14 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.15
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.16 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.17 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.18
ANALYSIS -- ISSUE 2
By decision dated February 6, 2008, the Office denied appellant’s claim for wage-loss
compensation from September 6, 2003 to January 11, 2004 after finding that he was barred from
receiving compensation as he refused suitable work. On September 4, 2008 appellant requested
reconsideration. He submitted a May 19, 2008 medical report addressing his ability to work
from September 1, 2003 to January 11, 2004 and a leave analysis showing that he did not work
during that period. The pertinent issue, however, is whether appellant is entitled to
compensation subsequent to the Office’s termination of his compensation for refusing suitable
work under section 8106 of the Act. The medical evidence and leave analysis are not relevant to
the particular issue involved and thus do not warrant a reopening of the case for merit review.19
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for compensation for
wage loss from September 6, 2003 to January 11, 2004 after he refused suitable work. The

13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

16

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

17

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

18

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

19

Freddie Mosley, 54 ECAB 255 (2002).

4

Board further finds that the Office properly denied his request for further merit review of his
claim under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 25 and February 6, 2008 are affirmed.
Issued: March 3, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5