United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION, Denver, CO,
Employer
__________________________________________

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

Docket No. 09-803
Issued: November 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2009 appellant filed a timely appeal from a December 31, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment in the amount of $3,687.03 for which she was not at fault, declined to waive the
recovery and set a repayment schedule. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the
Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,687.03 during the period February 18, 2006 to October 25, 2008 when life
insurance premiums for basic and optional life insurance were incorrectly deducted and no
deductions for postretirement life insurance were deducted from her compensation; (2) whether
the Office properly denied waiver of the recovery of the overpayment; and (3) whether the
Office properly set the rate of recovery as $300.00 per month.

FACTUAL HISTORY
On July 30, 2003 appellant, then a 42-year-old claims examiner, filed a traumatic injury
claim alleging that on July 10, 2003 she first realized her depression, anxiety and aggravation of
her migraine headaches was employment related. The Office accepted the claim for major
depression and post-traumatic stress disorder and placed appellant on the periodic rolls for
temporary total disability by letter dated June 1, 2004.
In an October 21, 2008 letter, the Office of Personnel Management (OPM) informed the
Office that appellant elected to receive benefits under the Federal Employees’ Compensation
Act. It reported that appellant elected to receive basic life insurance, optional life insurance and
postretirement life insurance based on a salary rate of $53,205.00. The start date for beginning
postretirement life insurance was identified as February 18, 2006 and “[c]ompensation
commencing date” was the start date identified for both basic life and optional life insurance.
In a letter dated November 3, 2008, the Office informed appellant that, beginning
October 26, 2008, deductions for her life insurance premiums would be deducted. Appellant was
informed that the deductions would be $54.60 for optional life, $16.80 for basic life and $94.08
for postretirement. The Office noted that these changes were effective February 18, 2006, the
date she made her life insurance elections when she filed for OPM retirement. It informed
appellant that she would be notified of any overpayment due to incorrect withholding of life
insurance premiums at a later date.
The record also contains a computer worksheet and printouts dated November 3, 2008
regarding the calculation of the overpayment.
In a November 4, 2008 overpayment calculation sheet, the Office noted that during the
period February 18, 2006 to October 25, 2008 that $604.80 should have been deducted for basic
life insurance, $1,965.60 should have been deducted for optional life insurance and $3,386.88
should have been deducted for postretirement life insurance. It noted that $2,270.25 had been
deducted during this period for basic life insurance and optional life insurance. Subtracting what
appellant owed from what she actually paid resulted in a total overpayment of $3,687.03
($5,957.28 - $2,270.25).
By letter dated November 12, 2008, the Office informed appellant that an overpayment
had been created in the amount of $3,687.03 for the period February 18, 2006 to October 25,
2008 because it did not correctly deduct amounts for basic, optional and postretirement life
insurance. It noted that it should have deducted $604.80 for basic life insurance, $1,965.60 for
optional life insurance and $3,386.88 for postretirement basic life insurance. Totaling these
amounts resulted in a total of $5,957.28 which should have been deducted. The Office then
stated that it deducted $2,270.25 for basic and optional life insurance during this period resulting
in a total overpayment of $3,687.03. It noted that appellant was without fault in the creation of
the overpayment. In an attached memorandum to file, the Office noted that appellant did not file
a response.
By decision dated December 31, 2008, the Office finalized the overpayment in the
amount of $3,687.03 for the period February 16, 2006 to October 25, 2008 based on the lack of

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deduction for postretirement life insurance and underdeductions for basic and optional life
insurance. Although it found that appellant was without fault in the creation of the overpayment,
it further found that waiver of the recovery of the overpayment was not warranted, as appellant
did not respond to the preliminary determination. The Office set a monthly repayment amount of
$300.00 beginning September 28, 2008.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.1 The coverage for basic life is effective unless waived2 and premiums for
basic and optional life coverage are withheld from the employee’s pay.3
The Act4 and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances5 and may also retain the optional life insurance.6 At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
compensationer status.7 If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made while the compensationer was an employee
will be used to withhold premiums from his or her compensation payments.8 Thus, while
receiving disability compensation in lieu of retirement benefits, the former employee is
responsible for all insurance premiums.9
ANALYSIS -- ISSUE 1
The evidence establishes that the Office should have been deducting premiums for
postretirement basic life insurance benefits since February 16, 2006, pursuant to the instructions
from OPM. However, it did not begin deducting postretirement basic life until October 26,
2008, and therefore an overpayment of compensation was created. Payment records also show
that basic life and optional life insurance premiums were underdeducted for the period
February 16, 2006 to October 25, 2008. The Office properly noted that appellant paid $2,270.25
for the period February 16, 2006 to October 25, 2008 whereas appellant owed $8,458.52 for this
1

5 C.F.R. § 870.201.

2

Id. at § 870.204(a).

3

Id. at § 870.401(a).

4

Id. at §§ 8101-1893.

5

Id. at § 870.701, subpart G.

6

Id. at § 871.201, subpart B; 870.201, subpart B; 873.203, subpart B

7

Id. at § 870.501.

8

Id.

9

Scherri L. Stanley, 53 ECAB 433 (2002).

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time period. The difference between these two figures was $3,687.03, which was the amount
that the Office properly found it had overpaid appellant. Accordingly, the Board finds that the
Office’s underwithholding of the basic life and optional insurance premiums and the failure to
deduct premiums for postretirement life insurance created an overpayment of compensation in
the amount of $3,687.03 for the period February 16, 2006 to October 25, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act provides that, where an
overpayment of compensation has been made because of an error of fact or law, adjustment shall
be made by decreasing later payments to which an individual is entitled. The only exception to
this requirement is a situation which meets the tests set forth as follows in section 8129(b):
“Adjustment or recovery by the United States may not be made when 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.”10
Office regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”11
ANALYSIS -- ISSUE 2
Although the Office found appellant without fault in creating the $3,687.03 overpayment,
she bears responsibility for providing the financial information necessary to support a request for
waiver. It requested that she provide financial information and submit any request for waiver
within 30 days of the preliminary overpayment determination. Appellant did not respond within
the 30-day time period. The Office noted that her failure to submit the requested information
would result in the denial of waiver of recovery of the overpayment. Appellant failed to respond
within 30 days, as requested by the Office, under the implementing federal regulations, the
Board finds that the Office properly denied waiver of recovery of the overpayment pursuant to
20 C.F.R. § 10.438(b).12
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

12

Id. at § 10.438(b) provides that failure to submit requested information within 30 days shall result in the denial
of waiver of an overpayment. See R.W. (A.T.), 59 ECAB ___ (Docket No. 07-1845, issued December 7, 2007);
Madelyn Y. Grant, 57 ECAB 533 (2006).

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LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”13
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, she failed to timely complete the financial documents. In cases where the
claimant is being paid compensation on the periodic rolls and the claimant does not respond to
the preliminary overpayment decision, a final decision should be issued without conducting a
conference and the debt should be recovered from such benefits as quickly as possible.14
Furthermore, without the appropriate financial documentation or overpayment questionnaire as
required by 20 C.F.R. § 10.441, the Office was unable to consider his financial circumstances.
The Board finds that the Office did not abuse its discretion in following its regulations and
deducting $300.00 every four weeks from her continuing compensation payments.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment. The Board further finds that the Office properly denied waiver of the recovery of
this overpayment and properly set the rate of recovery of the overpayment at $300.00 from
continuing compensation payments.

13

20 C.F.R. § 10.441.

14

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) (October 2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 31, 2008 is affirmed.
Issued: November 20, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Chicago, IL, Employer
__________________________________________

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

Docket No. 17-0861
Issued: August 13, 2018

Case Submitted on the Record

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

JURISDICTION
On March 9, 2017 appellant filed a timely appeal from a January 26, 2017 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 has met her burden of proof to establish bilateral elbow and
right shoulder conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 24, 2016 appellant, then a 53-year-old workers’ compensation claims examiner,
filed an occupational disease claim (Form CA-2) alleging that she developed bilateral elbow and
1

5 U.S.C. § 8101 et seq.

right shoulder conditions due to factors of her federal employment. She indicated that she first
became aware of her claimed conditions on April 13, 2016 and first realized their relation to her
federal employment on April 21, 2016. Appellant did not stop work.
In a June 6, 2016 development letter, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant subsequently submitted a narrative statement dated June 16, 2016 indicating that
her federal duties required using a computer 7.5 hours per day, five days a week, which included
typing, using her hands, wrists, and arms in extensive repetitive movements in a nonergonomic
environment. She further indicated that she began to have some stiffness in her right shoulder, as
well as pain and tingling in both elbows, starting in November 2015 and attributed her conditions
to the volume of her workload and the way her cubicle was set-up, which was ergonomically
incorrect. Appellant stated that sometime around the week of April 11, 2016, she had tightness
and pain in her right shoulder and it began to make a popping or clicking sound. It hurt when
extended and the pain began to move down both arms. When over-the-counter pain relievers did
not work, she made an appointment to see her physician on April 21, 2016.
In a May 12, 2016 report, Courtney Potempa, a physician assistant, diagnosed left lateral
epicondylitis, left rotator cuff syndrome, and right frozen shoulder and referred appellant to
physical therapy.
On June 14, 2016 Dr. Robert Strugala, a Board-certified internist, noted that appellant was
initially evaluated by Ms. Potempa on May 12, 2016 for pain in both arms, with the most
significant pain emanating from her right shoulder. He noted that appellant did not recall any
specific definite trauma, but her symptoms had been present since April and she “struggled with
pain that seemed to begin with activities at work.” Appellant described a nonergonomic work
setting where the desk relative to the keyboard was at the wrong height and as a consequence she
had to elevate her arms to type and her arms were not in a resting position. Dr. Strugala reviewed
diagnostic testing from May 2016 and found some acromioclavicular (AC) joint degeneration on
the right shoulder. He administered an injection and diagnosed right shoulder pain, which was not
consistent with impingement syndrome and opined that appellant’s condition “seem[ed] to have
occurred with consistently elevating the right shoulder at work due to her desk setting.”
Dr. Strugala further diagnosed adhesive capsulitis of the right shoulder and provided work
restrictions of no lifting and no overhead activities with the right arm.
By decision dated July 12, 2016, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between her adhesive capsulitis
condition and the accepted factors of her federal employment.
On July 26, 2016 appellant requested reconsideration and submitted an ergonomic
workstation assessment dated July 5, 2016 finding that her workstation was set-up with a single
monitor, a damaged track ball for a mouse, and an aerodynamic, ergonomic-friendly keyboard.
The assessment noted that appellant sat in an upright sitting position at her desk, but many issues
with her workstation set-up caused her to constantly adjust her body position. The evaluator made
recommendations, including a new mouse, placing the keyboard and mouse in a more neutral

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position to eliminate the uneven resting of her arms at different heights, and relieving congestion
at the desk to increase her work space.
In a July 21, 2016 report, Dr. Strugala diagnosed right rotator cuff syndrome with
impingement signs and bilateral lateral epicondylitis. Appellant was tender over the lateral
epicondyle of each elbow and had a positive Hawkins’ test for impingement of the right shoulder.
Dr. Strugala opined that appellant’s conditions were work related based on her description of her
workstation, more specifically that her desk relative to the keyboard was at the wrong height,
which required her to elevate her arms in an unnatural position to type and prohibited her from
maintaining them in a rested position. Dr. Strugala opined that this caused the development of the
rotator cuff issues, as well as the lateral epicondylitis in each elbow. He noted that no other trauma
or unusual activity had occurred.
On September 8, 2016 Dr. Strugala continued to diagnose bilateral shoulder impingement,
with decreased active range of motion, and left elbow lateral epicondylitis. He noted that appellant
reported symptoms increasing at work, particularly towards the end of her shift, and advised that
she shorten her shift to six hours.
In a September 14, 2016 report, Michelle Knezevic, a registered nurse, diagnosed bilateral
lateral epicondylitis and bilateral shoulder impingement syndrome and provided the following
work restrictions: regular duties with a 10-minute break every hour and a reduced schedule of a
6-hour shift maximum.
By decision dated October 18, 2016, OWCP denied modification of its prior decision.
On November 10, 2016 appellant again requested reconsideration.
By decision dated November 21, 2016, OWCP denied appellant’s request for
reconsideration without a merit review because she failed to advance a relevant legal argument or
submit any relevant and pertinent new evidence.
On November 26, 2016 appellant again requested reconsideration and submitted reports
dated October 27 and November 17, 2016 from Dr. Strugala who indicated that appellant
continued to struggle with left elbow pain consistent with lateral epicondylitis and right shoulder
pain with rotator cuff syndrome and impingement. He opined that the repetitive nature of
appellant’s work activities, particularly with the arms positioned in a nonergonomic location, was
the “probable cause” of her conditions and, therefore, he believed that her symptoms were “likely
work related.” In a November 17, 2016 addendum report, Dr. Strugala reiterated his opinion that
based upon his clinical diagnosis and the history provided by appellant, he believed the nature of
appellant’s repetitive work activities, particularly with the arms positioned in a nonergonomic
location, was the cause of her work symptoms.
By decision dated January 26, 2017, OWCP denied modification of its October 18, 2016
decision.

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LEGAL PRECEDENT
A claimant seeking benefits under FECA 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 that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee 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 employment factors identified by the employee.3
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her bilateral
elbow and right shoulder conditions are causally related to the accepted factors of her federal
employment.
OWCP accepted the implicated employment factors, specifically that appellant’s job duties
required typing and using a computer up to 7.5 hours per day at a nonergonomic workstation, and
also accepted that there was a medical diagnosis in connection with the employment incident.
However, it denied appellant’s occupational disease claim because the medical evidence of record
was insufficient to establish a causal relationship between the diagnosed condition(s) and the
accepted employment factors.
With respect to the May 12, 2016 report from Ms. Potempa, a physician assistant, and the
September 14, 2016 report from Ms. Knezevic, a registered nurse, the Board notes that these
documents do not constitute competent medical evidence because neither physician assistants nor
registered nurses are considered “physicians” as defined under FECA.4 Consequently, the abovenoted evidence is insufficient to meet appellant’s burden of proof with respect to causal
relationship.5
Initially, Dr. Strugala diagnosed adhesive capsulitis of the right shoulder and opined that
appellant’s condition was not consistent with impingement syndrome, but “seem[ed] to have
occurred with consistently elevating the right shoulder at work due to her desk setting.” Appellant
2

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

See D.R., Docket No. 09-1723 (issued May 20, 2010). 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).
4
5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); E.K., Docket No. 09-1827
(issued April 21, 2010) (registered nurses). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B.
Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the
submission of probative medical evidence from a physician).
5

See supra notes 2-5.

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had described a nonergonomic work setting where the desk relative to the keyboard was at the
wrong height and as a consequence she had to elevate her arms to type and her arms were not in a
resting position. Later, Dr. Strugala diagnosed right rotator cuff syndrome, bilateral shoulder
impingement, and bilateral lateral epicondylitis. He opined that, based upon his clinical diagnosis
and the history provided by appellant, he believed the nature of her repetitive work activities,
particularly with her arms positioned in a nonergonomic location was the cause of her conditions.
However, Dr. Strugala failed to provide a rationalized opinion explaining how factors of
appellant’s federal employment, such as typing and using a computer up to 7.5 hours per day at a
nonergonomic workstation, caused or aggravated her bilateral elbow and right shoulder conditions.
He noted that appellant’s conditions occurred while she was at work, but such generalized
statements do not establish causal relationship because they merely repeat appellant’s allegations
and are unsupported by adequate medical rationale explaining how her physical activity at work
actually caused or aggravated the diagnosed conditions.6 The Board has held that the mere fact
that appellant’s symptoms arise during a period of employment or produce symptoms revelatory
of an underlying condition does not establish a causal relationship between her condition and her
employment factors.7 In addition, he indicated that the repetitive nature of appellant’s work
activities, particularly with the arms positioned in a nonergonomic location, was the “probable
cause” of her conditions and, therefore, he believed that her symptoms were “likely work related.”
The Board has long held that medical opinions that are speculative or equivocal in character have
little probative value.8 Thus, the Board finds that Dr. Strugala’s reports are insufficiently
rationalized to establish that appellant’s conditions were caused or aggravated by factors of her
federal employment.
As appellant has not submitted rationalized medical evidence sufficient to support her
allegation that she sustained an injury causally related to the accepted employment factors, she has
not met her 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 her burden of proof to establish bilateral elbow
and right shoulder conditions causally related to the accepted factors of her federal employment.

6

See K.W., Docket No. 10-0098 (issued September 10, 2010).

7

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

T.M., Docket No. 08-0975 (issued February 6, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the January 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-550
Issued: November 14, 2008

Oral Argument October 8, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On December 13, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated October 18, 2007 which denied his reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated November 14,
1994 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the fourth appeal before the Board. In an August 11, 1994 decision, the Board
reversed the April 27 and November 30, 1992 decisions of the Office finding that it improperly
terminated compensation based on appellant’s refusal of suitable work. The Board found that
the Office failed to follow established procedures in advising appellant that the reasons he

offered for refusing the offered position were insufficient. On October 21, 1994 the employing
establishment offered appellant the job of modified manual distribution clerk.1 By decision
dated November 14, 1994, it terminated compensation on the grounds that appellant had refused
an offer of suitable work.
By letter dated May 12, 2004, appellant requested reconsideration of the November 14,
1994 decision. He asserted that the emotional condition accepted by the Office in 2003 was the
reason he did not accept the offered position. By decision dated June 28, 2004, the Office
determined that appellant’s request for reconsideration was untimely. It further determined that
his request for reconsideration failed to show clear evidence of error in the November 14, 1994
suitable work termination decision. In a January 24, 2005 decision,2 the Board found that
appellant’s request for reconsideration was untimely as it was filed more than one year after the
November 14, 1994 Office decision and that he had failed to establish clear evidence of error on
the part of the Office. Appellant requested reconsideration and again argued that the reason he
did not accept the October 1994 job offer was because the job description was limited to the
effect of the physical injuries on his work capacity and did not take into account the effects of his
emotional condition. He submitted medical evidence indicating that the Office had issued its
termination decision without considering the presence of work-related stressors which were the
precipitating cause of his mental illness. By decision dated June 7, 2005, the Office determined
that appellant’s request for reconsideration was untimely and failed to show clear evidence of
error. In a decision dated November 9, 2006, the Board affirmed the Office’s June 7, 2005
nonmerit decision.3 The facts of this case are set forth in the Board’s prior decisions and are
incorporated herein by reference.
By letter dated September 30, 2007, appellant’s attorney requested reconsideration. He
asserted that the 1994 Office decision terminating compensation based on appellant’s refusal to
accept a suitable job offer was invalid because the Office did not consider the psychiatric
element of the claim.
By decision dated October 18, 2007, the Office denied appellant’s request for
reconsideration without a merit review, finding the request was untimely and that he had not
established clear evidence of error. It noted that appellant was required to present evidence
which showed that the Office made an error and that there was no evidence submitted that
showed that its final merit decision was incorrect.

1

On October 29, 2003 the Office accepted an emotional condition, exacerbation of depressive disorder, as a
consequence of his employment injury.
2

Docket No. 04-2020 (issued January 24, 2005).

3

Docket No. 05-1581 (issued November 9, 2006).

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle an
employee to a review of an Office decision as a matter of right.5 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).6 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.7 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by the Office granted under 5 U.S.C. § 8128(a).8
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.9 Office procedures
state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear
evidence of error” on the part of the Office.10

4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
6

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, it has stated that a claimant may obtain review of the merits of a claim by: (1) showing
that it erroneously applied or interpreted a point of law, or (2) advances a relevant legal argument not previously
considered by the Office, or (3) constituting relevant and pertinent new evidence not previously considered by the
Office. See 20 C.F.R. § 10.606(b).
7

20 C.F.R. § 10.607(b).

8

See cases cited supra note 2.

9

Rex L. Weaver, 44 ECAB 535 (1993).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

3

To establish clear evidence of error, appellant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise, explicit and must be
manifested on its face that the Office committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.15 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.16 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.17
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. It issued its most recent merit decision in this case on November 14, 1994. Appellant
requested reconsideration on September 30, 2007; thus, the request is untimely as it was outside
the one-year time limit.
The Board finds that appellant’s September 30, 2007 request for reconsideration failed to
establish clear evidence of error. The Board notes that a review of the medical evidence of
record does not establish that the Office erred in finding the offered position was medically
suitable. Appellant did not submit any new medical evidence with his request for
reconsideration. The September 30, 2007 letter from his attorney merely restated arguments
previously rejected by the Board and the Office. Appellant has failed to demonstrate clear
evidence of error on the part of the Office such that the Office abused its discretion in denying
merit review.

11

See Dean D. Beets, 43 ECAB 1153 (1992).

12

See Leona N. Travis, 43 ECAB 227 (1991).

13

See Jesus D. Sanchez, supra note 5.

14

See Leona N. Travis, supra note 12.

15

See Nelson T. Thompson, 43 ECAB 919 (1992).

16

Leon D. Faidley, Jr., supra note 5.

17

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

4

CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in his reconsideration request dated September 30, 2007. As appellant’s
reconsideration request was untimely filed and failed to establish clear evidence of error, the
Office properly denied further review on October 18, 2007.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HOUSTON VETERANS ADMINISTRATION
MEDICAL CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 14-2011
Issued: February 5, 2015

Case Submitted on the Record

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

JURISDICTION
On September 18, 2014 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated August 26, 2014. 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 her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On January 16, 2014 appellant, then a 39-year-old food service worker, filed an
occupational disease claim alleging that she developed stress, anxiety, and loss of appetite after a
1

5 U.S.C. § 8101 et seq.

coworker sexually harassed her, asked her for sexual favors, offered her money for sex, and
made inappropriate sexual comments. She became aware of her condition on January 12, 2013
and realized it was causally related to her employment on January 7, 2014. Appellant did not
stop work.
On January 28, 2014 OWCP asked appellant to submit additional evidence, including a
detailed description of the employment incidents that contributed to her claimed illness.
The employing establishment submitted records, including a position description for a
food service worker and appellant’s work schedule from November 4, 2012 to January 11, 2014.
An SF-50, notification of personnel action, dated August 11, 2013, noted that appellant had a
change in work schedule from full-time duty to part-time duty effective August 11, 2013.
The employing establishment submitted a January 24, 2014 letter of controversion. In
two undated statements, Willie Turner, a workers’ compensation program manager, noted that on
January 16, 2014 appellant filed a Form CA-2 asserting that she was sexually harassed by the
coworker on January 12, 2013. He noted that the employing establishment did not concur with
appellant’s claim noting there was no evidence from a psychiatrist or clinical psychologist to
support that her alleged occupational disease claim was caused by employment activities or
event(s).
In a February 7, 2014 letter to Dr. Carolyn Clansy Miller, a licensed psychologist,
Mr. Turner requested a complete medical narrative report of the history of appellant’s condition,
social and family history, the employees work situation, mental status examination, personality
testing, diagnoses, clinical course, and an opinion which identifies which factors of employment
caused or aggravated her condition and an assessment of her current condition.
Appellant submitted reports from Dr. Miller dated March 1 and April 3, 2014. Dr. Miller
opined that appellant’s mental health improved and she was able to work with the general public
in a job setting on April 1, 2014. In a work capacity evaluation dated March 5, 2014, she noted
that appellant experienced severe anxiety and possible psychotic symptoms, and depression
which impaired her ability to perform her job assignment. Dr. Miller noted that appellant was
not competent to perform her usual job of interaction with the general public and coworkers, and
opined that an appropriate job would be minimal involvement with people, minimal stress, and a
job which did not require average to high cognitive capacity.
The employing establishment conducted a fact-finding investigation on February 5, 2014
to determine the circumstances surrounding the sexual harassment allegations from appellant and
a coworker. The fact-finding investigation was conducted by three team members, Jeremiah
Jackson, supervisory health system specialist, Beena Kurian, supervisory health system
specialist, and Sheri Kuhlenschmidt, program support assistant. In a February 7, 2014
memorandum, the employing establishment concluded that it was clear to the investigative team
that a consensual relationship existed between the coworker and appellant for a period of time.
Based on the statements from the parties involved, it was apparent that sexual harassment did not
take place. The investigative team noted that from the recording provided by the accuser it could
not be confirmed that the coworker initiated the inappropriate conversation regarding sexual
favors in exchange for money. The investigative team recommended that appellant and the

2

coworker retake a sexual harassment training course and continue working in their assigned
areas.
The employing establishment submitted a February 5, 2014 fact-finding questionnaire
from appellant in which she indicated that the incident occurred on January 7, 2014 at noon
while at work. Appellant noted recording the conversation with the coworker on her cell phone
that was in her pocket. She advised that he did not state his name on the recording but she knew
it was him. Appellant reported that the incidents with the coworker began in January 2013, two
months after she started working at the employing establishment in November 2012, and that the
last incident was on January 7, 2014. She indicated that she told him to stop more than twice and
informed him that nothing would happen between them. Appellant described the relationship
noting that the coworker worked with the robots and she worked in the staging area and he
would come to her work area and ask for her. She indicated that she did not tell anyone of the
incidents and tried to handle it herself, but was scared. Appellant stated that the last incident
took place on January 7, 2014 and she reported it to the union on January 12, 2014.
In a fact-finding interview dated February 5, 2014, the coworker indicated that he knew
appellant and that she worked in the kitchen area. He indicated that she had asked him for gas
money and he was very giving. The coworker noted being surprised by appellant’s allegations
and indicated that on many occasions she approached him in the control room complaining about
her home life and lack of money for her kids at Christmas. He indicated that on December 20,
2013 he gave her $300.00, which was $50.00 for each of her kids and $100.00 for herself, and
told her she did not owe him anything in return. The coworker indicated that appellant came to
his office and reported problems with her husband and that she did not have a car. He reported
that she requested a $2,000.00 car down payment and he told her she could get a car without a
down payment. The coworker noted that he did not know much about appellant but he could not
give her $2,000.00 because his money went into his wife’s account and he was a “working man.”
He noted that he never promised her $2,000.00 to get a car and would not pay that amount for
sex. The coworker indicated that he was 68 years old and it was sad someone would step on him
to get ahead but he did not sexually harass or assault women. He liked his job and hoped to
retire the next year.
In an undated employing establishment statement received on April 21, 2014, Mr. Turner
noted that the employing establishment did not concur with appellant’s claim and noted that
there was no factual or medical evidence to support the employees alleged occupational disease
claim was caused by employment activities. He noted that appellant had not submitted any
evidence to establish the alleged incidents as factual. Mr. Turner indicated that an employing
establishment fact-finding investigation was conducted on February 5 and 7, 2014 the resulting
memorandum concluded that a consensual relationship existed between the coworker and
appellant for a period of time based on the statements of the parties and that sexual harassment
did not take place. The investigative team recommended that appellant and the coworker retake
a sexual harassment training course.
In an August 26, 2014 decision, OWCP denied appellant’s claim for an emotional
condition as the evidence did not support that the events occurred as alleged.

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LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8 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.9
ANALYSIS
Appellant alleges that she developed stress, anxiety, and loss of appetite after the
coworker sexually harassed her, asked her for sexual favors, offered her money for sex, and
made inappropriate sexual comments to her. The Board must thus, initially review whether these
alleged incidents and conditions of employment are covered employment factors under the terms
of FECA. Appellant has not attributed her emotional condition to performing her regular or
2

George H. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 137 (1999).

5

Supra note 3.

6

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

7

M.D., 59 ECAB 211 (2007).

8

Roger Williams, 52 ECAB 468 (2001).

9

See supra note 3.

4

specially assigned duties of her position as a food service worker. Instead, as noted below, she
has characterized the incident as harassment. Therefore, appellant has not alleged a compensable
factor under Cutler.10
Appellant asserted that the incidents of sexual harassment with the coworker began in
January 2013, two months after she began working at the employing establishment in
November 2012. The last incident was on January 7, 2014 which she reported to the union on
January 12, 2014. Appellant noted recording the conversation with the coworker on her cell
phone. She advised that he did not state his name on the recording, but she knew it was him.
Appellant indicated that she told the coworker to stop more than twice and informed him that
nothing would happen between them. She described the relationship noting that he worked with
the robots and she worked in the staging area and he would come to her area and ask for her.
Appellant indicated that she did not tell anyone of the sexual harassment incidents and tried to
handle it herself but was scared. To the extent that incidents alleged as constituting harassment
or a hostile environment by the coworker are established as occurring and arising from her
performance of her regular duties, these could constitute employment factors.11 However, for
harassment to give rise to a compensable disability under FECA, there must be evidence that
harassment did in fact occur. Mere perceptions of harassment are not compensable under
FECA.12
The factual evidence fails to support appellant’s claim for harassment as a cause for her
emotional condition. The record does not support her allegation that she was sexually harassed.
In a February 7, 2014 memorandum, the employing establishment noted conducting a
fact-finding investigation by a team of three members to determine the circumstances
surrounding the sexual harassment allegations from appellant about the coworker. The
investigative team concluded that it was clear that a consensual relationship existed between the
coworker and appellant for a period of time. Based on the statements gathered from the
investigator involved, it was apparent that sexual harassment did not take place. The
investigative team noted that from the recording provided by appellant it could not be confirmed
that the coworker initiated an inappropriate conversation regarding sexual favors in exchange for
money. The investigative team recommended that appellant and the coworker retake a sexual
harassment training course and continue working in their assigned areas.
Additionally, in a fact-finding interview dated February 5, 2014, the coworker denied
sexually harassing appellant. He knew she worked in the kitchen and indicated that she had
asked for gas money and he had given her the money. The coworker indicated that appellant
would complain about her home life, problems with her husband, and about not having money
for her kids for Christmas. He indicated that on December 20, 2013 he gave her $300.00, which
was $50.00 for each of her kids and $100.00 for herself and told her she did not owe him
anything in return. The coworker alleged that appellant wanted information about a car and
10

See id.

11

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).

5

requested a $2,000.00 car down payment which he declined and asserted that he never promised
her $2,000.00 to get a car and would not pay for sex.
The Board notes that there is no evidence of record corroborating appellant’s charges that
the coworker was harassing her. Thus, appellant has not established a compensable employment
factor under FECA with respect to the claimed harassment.
To the extent that appellant alleged that from November 2012 to January 2014 her
coworker verbally abused her, the Board has recognized the compensability of verbal abuse in
certain circumstances. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under FECA.13 The Board finds that the facts of the case do
not support any specific incidents of verbal abuse. Appellant provided no corroborating
evidence, or witness statements to establish her allegations.14 There is no corroborating evidence
of record to support that any verbal interaction with appellant and her coworker rises to the level
of a compensable employment factor.15
Consequently, appellant has failed to establish her claim for an emotional condition as
she has not attributed her claimed condition to any compensable employment factors.16 She 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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

13

Charles D. Edwards, 55 ECAB 258 (2004).

14

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
15

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
16

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2015
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Attorney for B.P., Appellant
and
U.S. POSTAL SERVICE, NEW CASTLE POST
OFFICE, New Castle, PA, Employer
__________________________________________

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Appearances:
Douglas Sughure, Esq., appellant
Office of Solicitor, for the Director

Docket No. 15-141
Issued: July 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2014 counsel for appellant filed a timely appeal from an October 1, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this issue.
ISSUE
The issue is whether OWCP abused its discretion by denying the requested attorney’s fee
in the amount of $421.50 for the period May 6 to December 27, 2013.
On appeal appellant argues that the submitted bills were in compliance with 20 C.F.R.
§ 10.703 and that the employee had agreed with and signed all the submitted billing statements.
He further argues that he contacted additional physicians in an effort to expand the employee’s
claim to include a consequential injury. Appellant argues that OWCP held him to a greater

1

5 U.S.C. § 8101 et seq.

standard than required under its governing regulations and abused its discretion in denying his
requested fees.
FACTUAL HISTORY
On August 14, 2007 the employee, then a 49-year-old mail handler, filed a traumatic
injury claim alleging that he sustained a lumbar strain while picking up a mail sack from a
nutting truck to deposit it in its proper container. OWCP accepted this claim for sprain of back
lumbar region on October 4, 2007.
The employee authorized counsel to represent him on November 29, 2011. By letter
dated January 23, 2014, however, appellant noted the termination of his representation as of that
date.
Counsel provided OWCP with a letter dated January 23, 2014 which included an
itemized bill for attorney fees for the period May 6 through December 27, 2013 totalling
$421.50.2 Each statement was signed by the employee indicating that he agreed to the amount
contained in the itemized bill and that he authorized his attorney to accepted payment. Counsel
also stated that the employee had received a copy of the letter addressed to OWCP which
provided him with an additional opportunity to pay.
The itemized billing statements reflected a variety of charges with the corresponding
dates of the charges. Counsel listed telephone calls to Dr. Steven Riggall, a Board-certified
psychiatrist. The bills also included e-mails to the employee regarding an appointment with
Dr. Patrick Shaughnessy, a Board-certified physiatrist, and e-mails to the employee regarding the
request for a narrative medical report. Appellant listed charges for telephone calls with the
employee, charges for reviewing the file for a consequential emotional condition claim, and
charges for both calls and e-mails to the employee regarding obtaining additional evidence from
a new physician. The bills also included telephone calls and e-mails regarding Dr. Thomas F.
Scott, a Board-certified orthopedic surgeon. Counsel also listed charges for e-mails to the
employee regarding outstanding medical bills and telephone calls to the employee regarding
medical reimbursement.
In a letter dated March 26, 2014, OWCP informed counsel that his fee request was
incomplete as it did not contain an itemized statement including all the dates and fees charged
from May 6 to December 27, 2013 and clear evidence that the services performed were in
connection with the employee’s August 12, 2007 employment injury. It stated that Drs. Riggall,
Scott, and Shaughnessy were not recognized physicians in the employee’s claim. OWCP asked
that appellant describe the nature of his contact with these physicians and submit evidence that
supported their treatment of the employee was related to his accepted employment injury. It
allowed appellant 30 days to provide the missing information.
Counsel responded to OWCP on August 8, 2014 and stated that all the bills submitted
included the appropriate date, description of service, time elapsed while performing the service
2

These statements encompassed work performed for 3 hours and 18 minutes in part by the attorney, Cory Fritz
and Frances A. Lenox. Each of these listed person billed their time at a different hourly rate.

2

and the charged amount. He further argued that, although the physicians discussed did not
submit information to OWCP, the employee sought their assistance in regard to his accepted
injury. Counsel also asserted that the employee received, reviewed, and signed every billing
statement provided to OWCP for fee approval.
In a letter dated August 29, 2014, counsel requested a final decision regarding his fee
request of $421.50 and argued that the request was complete and appropriate.
By decision dated October 1, 2014, OWCP denied the requested fees. It stated that
services by the attorney must have a relationship to the claim. OWCP stated that the services
rendered by appellant were not performed in connection with the injury sustained by the
employee on August 12, 2007. It stated that clear medical evidence was not submitted to support
that the fees charged for services rendered to Drs. Riggall, Scott, and Shaughnessy were in
connection with the employee’s August 12, 2007 employment injury. OWCP noted that these
physicians were not formally associated with the employee’s claim and that there were no
medical reports from these physicians included in the record which would support their
involvement with appellant or treatment of the employee.
LEGAL PRECEDENT
It is not the Board’s function to determine the fee for representative services performed
before OWCP. That is a function within the discretion of OWCP based on the criteria set forth
in Title 20 of the Code of Federal Regulations and in Board decisions. The Board’s sole function
is to determine whether the action by OWCP constituted an abuse of discretion.3 Generally, an
abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts.
Pursuant to OWCP regulations found at 20 C.F.R. § 10.703(a), a representative must
submit a fee application to OWCP, which includes an itemized statement identifying his or her
hourly rate, the number of hours worked, the specific work performed, and the total amount
charged for the representation minus administrative costs. The application shall also contain a
signed statement from the claimant either agreeing or disagreeing with the amount charged and
acknowledging that he or she, not OWCP, is responsible for paying the fee and other costs.4
Where such a compliant fee application is received with a signed statement indicating the
employee’s agreement with the fee, the application is deemed approved.5
OWCP’s procedures also state that where a proper fee application including an itemized
statement of the hourly rate, the number of hours worked, a description of the specific work
performed, and the total amount charged exclusive of administrative costs is accompanied by a
3

J.P., Docket No. 11-953 (issued June 19, 2012); L.H., Docket No. 11-900 (issued December 6, 2011); C.H.,
Docket No. 10-987 (issued March 22, 2011).
4

20 C.F.R. § 10.703(a).

5

Id. at § 10.703(b).

3

signed statement indicating the claimant’s agreement with the fee the application will be deemed
approved.6
The procedure manual also provides that OWCP may not approve fees for service in
certain situations. These included matters which have no relation to the claim or for work done
before another government agency or before the Board. The procedure manual specifically
includes claims including administrative expenses, time spent preparing the request for fees and
contingency fees as those outside the scope of approval by OWCP.7
ANALYSIS
The Board finds that OWCP abused its discretion by denying the requested attorney’s
fees. The fee request included itemized statements identifying the rate charged, the number of
hours worked, the specific work performed and the total amounts charged. Each statement was
signed by the employee confirming that he agreed to the amount owed and authorized payment.
The employee did not dispute the fee and did not object to the amount. In accordance with 20
C.F.R. § 10.703 and OWCP’s procedures above, OWCP should have deemed the fee request
approved.8
Given that the employee agreed to the itemized fee, in accordance with OWCP’s
regulations and procedure manual, OWCP had no reason to deny the fee. Instead in this case,
OWCP undertook additional review and investigation of the claim and abused its discretion by
denying the application. The Board finds no evidence in the record that the fee charged was
associated with a contingency fee agreement, with services before the Board or before another
government agency. There was no basis for OWCP to undertake an additional level of scrutiny
and it acted outside of the scope of its review in accordance with its regulations and procedure
manual. OWCP therefore erred in denying the fee application which was agreed to in its entirely
by the employee.
CONCLUSION
The Board finds that OWCP abused its discretion in denying appellant’s application for
attorney’s fees in the amount of $421.50 for the period May 6 through December 27, 2013.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Representative’s Services, Chapter 2.1200.6b and 6e
(June 2012).
7

Id. at Chapter 2.1200.5 (June 2012).

8

See K.F., Docket No. 09-2244 (issued June 14, 2010) (finding that as the employee signed each fee request and
noted that he accepted the fee, they were deemed approved pursuant to OWCP’s regulations).

4

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, South Carolina, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1013
Issued: February 4, 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 24, 2010 appellant, through his representative, filed a timely appeal of a
February 4, 2010 merit decision of the Office of Workers’ Compensation Programs denying his
claim for an employment-related hearing loss. 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 met his burden of proof to establish that he sustained a
hearing loss causally related to factors of his employment.
FACTUAL HISTORY
On November 9, 2009 appellant, then a 70-year-old former supply technician, filed an
occupational disease claim alleging an increase in hearing loss in both ears due to his federal

employment.1 He stated that he was first aware of his hearing loss and realized that it was
causally related to his federal employment on January 1, 1984. Appellant attributed his hearing
loss to his exposure to high levels of noise while he worked at the employing establishment. He
retired in January 1995.
Appellant submitted a Form CA-1032, personnel action forms and a hearing loss
questionnaire detailing his work history and exposure to noise. He worked at the employing
establishment from 1962 to 1995 as a cardpunch operator, transceiver operator, stock control
clerk, supply clerk, supervisor supply technician typing and supply technician. Appellant was
exposed to noise from a sorter, keypunch, metal cutting machine, air conditioner and office
machinery for 40 hours per week and that he did not use any safety devices. He submitted
information of nonfederal employment from June 1960 to September 1961 where he was
exposed to noise from a graphotype machine, sewing machines, cutting machines and mules for
about 40 hours a week.
Appellant submitted medical evidence including periodic diagnostic reports of
audiograms from his employing establishment dated October 1962 to January 1995. According
to the October 1962 audiological examination report, he was advised of hearing loss at the onset
of his federal employment.
In a May 14, 2009 audiological evaluation and audiogram, Joseph E. Gillespie, an
audiologist, listed testing at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz)
revealed the following: right ear 20, 25, 50 and 70 decibels; left ear 20, 25, 60 and 90 decibels.
He diagnosed appellant with severe sensorineural loss in both ears.
On November 18, 2009 the Office issued a statement of accepted facts. It noted that
appellant began working for the Federal Government on November 5, 1962 and was exposed to
work noise levels averaging from 88 to 56 decibels during his employment. The Office pointed
out that October 22, 1962 entrance audiogram revealed a high frequency hearing loss bilaterally.
It further noted that appellant was issued ear defenders in 1980 and was advised to use them in
high noise level areas.
On November 19, 2009 the Office referred the medical record to a district medical
adviser (DMA). It requested the medical adviser to review his audiograms from 1983 to 1995
and to determine whether a decrease in hearing threshold levels occurred. The DMA compared
appellant’s June 15, 1983 and January 3, 1995 audiograms and found a decrease in his right ear
of 10 decibels at 2,000, 3,000 and 4,000 frequency levels. The medical adviser further reported a
decrease in his left ear of 5 decibels at 2,000 Hz and 15 decibels at 5,000 Hz. The DMA
concluded that the audiograms from 1983 to 1995 revealed a bilateral, progressive loss of
hearing that was most consistent with excessive exposure to noise.
By letter dated November 20, 2009, the Office referred appellant to Dr. Russell D. Kitch,
a Board-certified otolaryngologist, for a second opinion evaluation. It provided Dr. Kitch with
the statement of accepted facts and copies of available medical records.
1

The record reveals that appellant has a previously accepted occupational disease claim for monaural hearing loss
in his left ear (File No. xxxxxx735).

2

On January 20, 2010 Dr. Kitch performed an otologic evaluation and an audiometric test
was conducted on his behalf. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed the following: right ear 15, 25, 55 and 75 decibels; left ear 20, 25, 65 and 85 decibels
respectively. The testing indicated that appellant showed normal hearing up to 1,000 Hz before
decreasing to moderately severe and profound sensorineural symmetric loss in both ears.
Dr. Kitch diagnosed moderate-to-severe binaural mid to high frequency sensorineural
hearing loss. Based on a review of appellant’s audiometric testing results dating back to 1962,
he determined that appellant suffered from significant binaural high frequency sensorineural
hearing loss at the onset of his federal employment and that progression since that date was
consistent with predicted presbycusis age-related progressive hearing loss, with the exception of
2,000 and 3,000 Hz in the right ear. Dr. Kitch advised that appellant suffered from moderate-tosevere binaural mid to high frequency sensorineural hearing loss in a pattern consistent with
noise exposure, but that, based on audiometric records from the onset of appellant’s federal
employment, it was unlikely that his hearing loss was a result of his federal employment. He
stated that the hearing loss in appellant’s right ear of low to mid frequency was an exception
because the progression of hearing loss in appellant’s right ear was 10 to 20 decibels greater than
expected with predicted presbycusis age-related progressive hearing loss. Accordingly,
Dr. Kitch recommended bilateral amplification.
In a February 4, 2010 decision, the Office denied appellant’s claim for hearing loss
finding insufficient medical evidence to establish that his hearing loss was causally related to his
federal employment. It noted that he suffered from moderate-to-severe binaural mid to high
frequency hearing loss in a pattern consistent with noise exposure, but not as a result of his
federal employment, with the exception of right ear low to mid frequency.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.3 To establish entitlement for permanent impairment, the
employee must initially submit medical evidence establishing the presence or existence of the
disease or condition for which compensation is claimed; and medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the
employee.4
Causal relationship is a medical issue and the medical evidence 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
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (2007).

3

whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.6
When a claimant has a preexisting condition, the Board has held that it is not necessary
for a work factor to materially contribute to the condition in order for the claimant to be entitled
to compensation.7 The Board has found that it is not necessary to prove a significant
contribution of employment factors to a condition for the purpose of establishing causal
relationship. If the medical evidence reveals that a work factor contributed in any way to the
employee’s condition, such condition would be considered employment related for the purpose
of compensation benefits under the Act.8
ANALYSIS
The Board finds that the medical evidence is sufficient to support appellant’s claim for
binaural hearing loss. By decision dated February 4, 2010, the Office denied his hearing loss
claim finding that Dr. Kitch did not support causal relationship. The Board finds that the
evidence of record establishes that appellant’s binaural hearing loss is causally related to his
federal employment.
The Board notes that in 1983 the Office accepted employment-related monaural hearing
loss in appellant’s left ear.9 The record does not establish that this acceptance was rescinded.
Accordingly, to support a claim for binaural hearing loss, appellant has the burden to establish
that his right ear hearing loss was causally related to his federal employment. The Board finds
that the Office medical adviser’s report and Dr. Kitch’s second opinion medical report establish
that appellant sustained hearing loss in his right ear as a result of his federal employment.
On November 19, 2009 the Office medical adviser reviewed the record, including
appellant’s audiograms dating from 1983 to 1995. He found that appellant had binaural
progressive hearing loss, consistent with noise exposure.
In a January 20, 2010 report, Dr. Kitch diagnosed appellant with moderate-to-severe
binaural mid to high frequency sensorineural hearing loss in a pattern consistent with noise
exposure. He observed that appellant had significant binaural high frequency sensorineural
hearing loss at the onset of his federal employment and that appellant’s hearing loss worsened in
a manner consistent with predicted presbycusis age-related progressive hearing loss, except for
2,000 and 3,000 Hz in appellant’s right ear, where the progression levels were 10 to 20 decibels
greater. While it was unlikely that appellant’s hearing loss resulted from his federal
employment, Dr. Kitch attributed the right ear low-to-mid frequency loss to appellant’s noise
exposure in his federal employment. The report of Dr. Kitch establishes that appellant’s
6

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

7

James M. Taylor, Docket No. 97-2497 (issued July 22, 1999); Arnold Gustafson, 41 ECAB 131 (1989).

8

Beth P. Chaput, 37 ECAB 158 (1985).

9

The current record is unclear however as to whether appellant received a prior schedule award for his left ear
hearing loss.

4

accepted noise exposure contributed to his hearing loss at 2,000 and 3,000 Hz in the right ear. In
this case, Dr. Kitch stated that appellant sustained additional noise exposure from low-to-mid
frequency hearing loss in his right ear as a result of his federal employment. As appellant’s
hearing loss in his left ear was previously accepted and Dr. Kitch’s report supports the causal
relation between appellant’s hearing loss in his right ear and his federal employment, he met his
burden of proof to establish his claim. Accordingly, the case will be remanded for the Office to
consolidate his claims relating to his binaural hearing loss and further develop the medical
evidence as to the extent of permanent impairment related to his hearing loss.
CONCLUSION
The Board finds that appellant’s claim requires further development to determine the
extent of any permanent impairment related to his binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2010 is set aside. The case is remanded for further
development consistent with this decision.
Issued: February 4, 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
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clarksdale, MS, Employer
__________________________________________

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

Docket No. 17-1825
Issued: February 23, 2018

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 August 29, 2017 appellant filed a timely appeal from April 20 and August 10, 2017
merit decisions 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 OWCP abused its discretion by denying appellant authorization for
physical therapy.
On appeal appellant asserts that the May 4, 2017 report from his attending rheumatologist
establishes that the requested physical therapy is necessary for the accepted conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 1987 OWCP accepted that appellant, then a 39-year-old letter carrier
sustained employment-related temporary aggravation of ankylosing spondylitis. It expanded the
acceptance of the claim to include permanent aggravation of ankylosing spondylitis on
June 21, 1988. OWCP also accepted thoracic or lumbar spondylosis with myelopathy.2
In July 1989, appellant began modified duty as a letter carrier for four hours per day and
received appropriate wage-loss compensation. By decisions dated August 11, 1989 and June 10,
1991, OWCP determined that this position fairly and reasonably represented appellant’s wageearning capacity and reduced his compensation accordingly. On April 14, 1994 appellant filed a
recurrence of disability claim (Form CA-2a), stating that he could no longer work. OWCP
accepted the recurrence claim, and placed appellant on the periodic compensation rolls.
Appellant came under the care of Dr. Charles R. Arkin, Board-certified in internal
medicine and rheumatology. In 1995, OWCP authorized the purchase of a hot tub that was
replaced in 2003. Appellant underwent physical therapy several times annually, authorized
through October 22, 2015.
In a report dated January 31, 2017, Dr. Arkin noted seeing appellant in follow-up for
ankylosing spondylitis. He described appellant’s complaints of neck and low back pain that
radiated into his arms and legs, and noted that he had recently been diagnosed with early
Parkinsonism with a mild right hand tremor. Dr. Arkin listed appellant’s medications and noted
findings of tenderness to spinal examination and severely restricted cervical and lumbar range of
motion. Diagnoses included spinal stenosis and ankylosing spondylitis of multiple sites in the
spine. Dr. Arkin recommended six weeks of physical therapy, three times weekly, and a return
visit in two months. He also referred appellant for a physical medicine and rehabilitation
evaluation.
By letter dated February 8, 2017, OWCP asked that appellant’s physician provide an
opinion regarding appellant’s work-related conditions and any disability due to the accepted
conditions. In a February 16, 2017 response, Dr. Arkin noted that appellant had been under his
care since 1981 when he was seen for severe back pain and was diagnosed with ankylosing
spondylitis which had continued to worsen without improvement. He advised that appellant had
been totally disabled due to the condition since 1994 and would not recover. Dr. Arkin
concluded that appellant’s work permanently and irreversibly made his ankylosing spondylitis
worse.
In March 18, 2017 correspondence, appellant maintained that physical therapy helped
him to get out of chairs and his bed without assistance, and that medical literature supported that
it decreased the pain and symptoms of ankylosing spondylitis. He indicated that he was 100

2

The record indicates that appellant has service-related hearing loss, post-traumatic stress disorder (PTSD), a
paraspinal nerve condition, Parkinson’s disease, and prostate cancer, for which he receives benefits from the
Department of Veterans Affairs (VA).

2

percent disabled by the VA for PTSD,3 and that the stress of dealing with OWCP aggravated that
condition.
In correspondence dated March 22, 2017, OWCP noted that it had authorized physical
therapy for an extended period of time and advised appellant of the medical information needed
to authorize continued physical therapy. In a March 22, 2017 report, received by OWCP on
April 3, 2017, Dr. Arkin advised that appellant’s accepted ankylosing spondylitis was totally
disabling and would not improve but that physical therapy, massage therapy, electric stimulation,
and ultrasound therapy helped him maintain his activities of daily living and reduced his pain
level. He further noted that appellant could no longer take NSAID medication due to loss of
kidney function.
On April 4, 2017 OWCP referred the case record to its medical adviser for an opinion on
whether the requested physical therapy was medically necessary to treat the accepted conditions.
In an April 20, 2017 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon and OWCP
medical adviser, noted his review of a statement of accepted facts and medical record. He
indicated that the recommended physical therapy was causally related to the accepted condition,
noting that it was often used to treat back pain, but that the recommended physical therapy was
not medically necessary. Dr. Fellars explained that no functional gains had been outlined as a
result of physical therapy, noting that the record did not specially explain how it would improve
appellant’s activities of daily living. He advised that appellant should be engaged in a home
exercise program and indicated that current studies recommended an active physical therapy
program, not passive modalities as were recommended in this case.
By decision dated April 20, 2017, OWCP denied appellant’s request for authorization of
physical therapy.
On May 16, 2017 appellant requested reconsideration. He indicated that he could no
longer utilize his hot tub because he could no longer get in and out of it safely. Appellant also
indicated that because his chest did not expand normally it was difficult to perform home
exercises. He requested that OWCP furnish a motorized bed.
In a May 3, 2017 report, Dr. Arkin advised that he began treating appellant for
ankylosing spondylitis in 1981, and that he continued to have severe pain, especially in the low
spine area, complicated by moderate disc bulging and facet arthritis in the thoracic spine. He
repeated appellant’s medications and examination findings. Dr. Arkin indicated that appellant
received physical therapy once or twice a year which decreased some of his neck and back pain,
and that he tried to do home exercises on a fairly regular basis. He advised that with physical
therapy, it was easier for appellant to turn in bed and be more active at home. Dr. Arkin related
that appellant felt that physical therapy helped him breathe a little easier because he had marked
restriction of the chest wall secondary to the ankylosing spondylitis. He referred appellant for an
orthopedic evaluation, noting that appellant could be a candidate for a block. On May 4, 2017
Dr. Arkin indicated that, since the beginning of appellant’s ankylosing spondylitis diagnosis, he
had been doing home exercises consisting of utilizing heating pad, ice packs, a transcutaneous
electrical nerve stimulation (TENS) unit, and an extended hand held massager, and these helped
3

Supra note 2.

3

him to function daily and not be totally incapacitated due to pain. He advised that appellant was
no longer able to safely get in and out of his hot tub due to several slips and near-falls, and that
his adjustable bed was no longer functional such that he had to sleep in a recliner since he could
not lie flat in a bed. Dr. Arkin opined that physical therapy provided relief during a severe flare,
which occurred once or twice a year, noting that this helped to make movements like turning
over in bed, getting out of a chair, and walking easier, and also helped appellant breathe easier
due to the marked restriction of the chest wall secondary to ankylosing spondylitis.
In an August 10, 2017 decision, OWCP denied modification of its prior decision. It
noted that the evidence submitted was insufficient because it did not clearly explain how
physical therapy would increase function or decrease appellant’s level of disability.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related
injury.6 OWCP procedures provide that nonmedical equipment such as waterbeds, saunas,
weight-lifting sets, exercise bicycles, etc., may be authorized only if recommended by the
attending physician and if OWCP finds that the item is likely to cure, give relief, reduce the
degree or the period of disability, or aid in lessening the amount of monthly compensation.7
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.8 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore
has broad administrative discretion in choosing means to achieve this goal.

4

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

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

20 C.F.R. § 10.310(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5)
(October 1995); see also Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.17.h
(June 2014); D.J., Docket No. 13-1637 (issued December 16, 2013).
8

See D.K., 59 ECAB 141 (2007).

4

Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.9
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for authorization of continued physical therapy. OWCP initially accepted appellant’s claim in
1987. The accepted conditions are permanent aggravation of ankylosing spondylitis and thoracic
or lumbar spondylosis with myelopathy.
Appellant, who had been working four hours of modified duty daily, stopped work
completely in 1994 and was placed on the periodic compensation rolls. He had received physical
therapy several times a year beginning in 1988, and last authorized through October 22, 2015.
On January 31, 2017 Dr. Arkin, an attending rheumatologist, recommended physical therapy,
three times per week for six weeks. In merit decisions dated April 20 and August 10, 2017,
OWCP denied authorization for continued physical therapy. OWCP found the weight of the
medical evidence rested with the opinion of Dr. Fellars, its medical adviser.
In his April 20, 2017 report, Dr. Fellars indicated that, while the recommended physical
therapy was causally related to the accepted condition, it was not medically necessary. He
indicated that no functional gains had been outlined as a result of physical therapy, noting that
the record did not specially explain how it would improve appellant’s activities of daily living.
Dr. Fellars advised that appellant should be engaged in a home exercise program, not passive
modalities as were recommended in this case.
In reports dated March 2, May 3, and 4, 2017, Dr. Arkin advised that appellant’s accepted
condition was totally disabling and would not improve. He opined that physical therapy once or
twice a year, including massage therapy, electric stimulation, and ultrasound therapy, decreased
some of his neck and back pain, and helped him maintain his activities of daily living. It assisted
in movements such as turning over in bed, getting out of a chair, and walking, while also helping
appellant breathe easier.
The Board finds, however, that Dr. Arkin did not provide a sufficient explanation as to
how the continued physical therapy would reduce the degree or period of disability, or aid in
lessening the amount of monthly compensation.10
For these reasons, OWCP did not abuse its discretion in denying appellant’s request to
authorize continued physical therapy. It explained that the medical evidence submitted provided
insufficient explanation for the necessity of continued physical therapy and found that the weight
of the evidence rested with Dr. Fellars, who advised that the requested physical therapy was not

9

Minnie B. Lewis, 53 ECAB 606 (2002).

10

Supra notes 4 and 5.

5

medically necessary. The Board finds that it was not unreasonable for OWCP to deny
authorization for continued physical therapy.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant
authorization for physical therapy.
ORDER
IT IS HEREBY ORDERED THAT the August 10 and April 20, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 23, 2018
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

11

D.K., supra note 8.

6