United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-195
Issued: October 10, 2014

Case Submitted on the Record

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

JURISDICTION
On November 5, 2013 appellant, through his attorney, filed a timely appeal of a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $31,473.32 for the period November 17, 2011 through August 15, 2012, for which he
was without fault; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that the overpayment could be recovered by deducting
$400.00 from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 8, 2003 appellant, then a 46-year-old mail handler, sustained cervical and
head injuries due to a forklift accident in the performance of duty. OWCP accepted the claim for
cervical strain, concussion and cervical spinal stenosis.2 Appellant stopped work that day and
returned to limited-duty work on January 21, 2004.
On May 29, 2005 and March 30, 2007 appellant filed claims for a schedule award.
By decision dated October 15, 2007, OWCP granted appellant schedule awards for a two
percent right upper extremity impairment and a two percent left upper extremity impairment.
By decision dated June 25, 2009, OWCP granted appellant an additional 11 percent
impairment for his right upper extremity, or a total 13 percent impairment and an additional 12
percent impairment for his left upper extremity, or a total 14 percent impairment.
On October 18, 2011 appellant filed a claim for an additional schedule award.
On December 8, 2011 OWCP received a September 30, 2011 report from Dr. William N.
Grant, an examining Board-certified internist, who concluded that appellant had a 62 percent
impairment to each upper extremity using the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Grant rated a 19
percent upper extremity impairment using Table 15-34, page 475 due to appellant’s combined
limited shoulder range of motion (i.e., 3 percent impairment for 90 degrees flexion, 1 percent
impairment for 30 degrees extension, 6 percent impairment for 80 degrees abduction, 2 percent
impairment for 30 degrees adduction, 4 percent impairment for 40 degrees internal rotation and 4
percent impairment for 40 degrees internal/external rotation). He rated a 24 percent bilateral
upper extremity impairment due to sensory and motor deficits of the C5, 6, 7, 8 nerves using
Table 15-7, page 406 and Table 15-8, page 408. Using Table 15-4, page 399, Dr. Grant found a
two percent left upper extremity impairment for appellant’s left arm epicondylitis. Using Table
15-21, page 449, he rated 17 percent bilateral upper extremity impairment due to his bilateral
carpal tunnel syndrome. Dr. Grant combined appellant’s upper extremity impairments to find a
total 62 percent upper extremity impairment.
In a December 22, 2011 addendum, Dr. Grant reiterated his opinion that appellant had 62
percent bilateral upper extremity impairment.
On January 13, 2012 OWCP received a November 17, 2011 functional capacity
addendum from Dr. Eugene Lopez, an examining Board-certified orthopedic surgeon, who
concluded that appellant had a total six percent left upper extremity impairment and a six percent
right upper extremity impairment. Using Table 15-5, page 402 Dr. Lopez determined that a class
1 or grade C was appropriate for both his right and left shoulder impingement. He assigned a
2

OWCP assigned File No. xxxxxx464. On March 6, 2008 it combined File Nos. xxxxxx258 and xxxxxx464,
which the latter as the master file number. Under File No. xxxxxx258 OWCP accepted the conditions of bilateral
shoulder capsulitis, bilateral carpal tunnel syndrome and left medial epicondylitis due to a February 24, 2005
traumatic injury involving a bay door.

2

grade modifier 3 for functional history, a grade modifier 2 for physical examination and a grade
modifier 2 for clinical studies which resulted in a net adjustment of 1 or impairment rating of
grade D or two percent for the right shoulder. For the left shoulder and using Table 15-5, page
402 Dr. Lopez determined that a class 1 or grade C was appropriate for appellant’s left shoulder
impingement. He assigned a grade modifier 3 for functional history, a grade modifier 2 for
physical examination and a grade modifier 2 for clinical studies which resulted in a net
adjustment of 1 or impairment rating of grade D or two percent for the right shoulder and a two
percent impairment for the left shoulder.
Using Table 15-23, page 449, Dr. Lopez found that appellant had a five percent
impairment for left carpal tunnel syndrome and a five percent impairment for right carpal tunnel
syndrome. Using Table 15-4, page 399, he classified appellant’s lateral epicondylitis as a class 1
with a default impairment rating of one or grade C. Dr. Lopez assigned a grade modifier 1 for
mild problems under functional history, a grade modifier 1 for physical examination findings of
minimal palpatory findings without any observed abnormalities and a grade modifier 0 for
clinical studies. Totaling the grade modifiers resulted in an adjustment value of -1 which moved
the impairment rating from grade C to grade B or one percent impairment for left lateral
epicondylitis. Dr. Lopez combined appellant’s upper extremity impairment ratings to find a six
percent impairment of both arms.
On March 19, 2012 Dr. Sanjai Shukla, an OWCP medical adviser, reviewed the medical
evidence. He noted several discrepancies between the reports of Dr. Lopez and Dr. Grant. Dr.
Shukla stated that in this type of situation, Dr. Grant’s rating should be disregarded in favor of
the impairment rating by Dr. Lopez. He concurred with Dr. Lopez that appellant had a five
percent impairment for the diagnosis of left carpal tunne syndrome, a one percent impairment for
left lateral epicondylitis and two percent impairment for left shoulder impingment, resulting in a
total six percent left upper extremity impairment. With respect to the right upper extremity,
Dr. Shukla determined that there was a five percent impairment for the diagnosis of carpal tunnel
syndrome, a two percent impairment for right shoulder impingment, resulting in a total six
percent left upper extremity impairment.
By decision dated April 16, 2012, OWCP granted appellant schedule awards for six
percent impairment of the right and left upper extremities. The period of the awards ran from
November 17, 2011 to August 5, 2012.
On May 7, 2012 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on August 6, 2012.
By decision dated October 16, 2012, the hearing representative set aside the April 16,
2012 decision and remanded the case for further development as he found no analysis supporting
a 19 percent right upper extremity permanent impairment or a 20 percent left upper extremity
permanent impairment. OWCP was instructed to obtain clarification from the medical adviser
explaining whether appellant had an additional six percent impairment to each upper extremity,
given that the previous schedule awards were for 13 percent right upper extremity impairment
and a 14 percent left upper extremity impairment.

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In a January 5, 2013 report, Dr. Christopher Gross, an OWCP medical adviser, noted that
appellant previously received schedule awards for a 13 percent right upper extremity impairment
and a 14 percent left upper extremity impairment. He stated that, as the prior schedule award
incorporated the diagnoses of shoulder impingement and carpal tunnel syndrome, the conditions
had been incorporated in the prior awards. Therefore, no additional schedule award was in order.
By notice dated February 1, 2013, OWCP advised appellant of its preliminary
determination that he received an overpayment of $31,473.32. Appellant received a schedule
award for an additional 6 percent impairment to each upper extremity but had previously been
paid for a 13 percent right upper extremity impairment and a 14 percent left upper extremity
impairment for the same medical conditions. The compensation received for the additional
schedule award constituted an overpayment. OWCP made the preliminary finding that appellant
was not at fault in creation of the overpayment. It provided him an overpayment recovery
questionnaire (Form OWCP-20) and afforded 30 days to submit financial information about his
income, assets and expenses. OWCP explained that this information was required to consider
waiver of recovery of the overpayment.
On February 25, 2013 appellant requested a telephonic prereoupment hearing with an
OWCP hearing representative.
Appellant submitted an overpayment recovery questionnaire stating that he had a total
monthly income of $918.72 and monthly expenses of $3,700.00. He had $50.00 cash on hand
and $573.57 in a checking account and a total of $50.00 under other funds. Under expenses,
appellant listed $500.00 for rent, $400.00 for food, $100.00 for clothing, $400.00 for utilities,
$100.00 for other expenses and $2,200.00 for bankruptcy.
At the hearing, appellant testified that he received approximatley $3,290.00 a month from
OWCP and about $110.00 from social security. He testified that his retirement income of
$815.72 was supposed to start in a few months.
Subsequent to the hearing appellant submitted a more detailed accounting of his expenses
and income. He listed monthly expenses of $900.00 for rent; $200.00 for gas; $90.00 for
light/electricity; $60.00 for water; $200.00 for food; $2,200.00 for bankruptcy payments;
$100.00 for cleaner; $100.00 for miscellaneous; and $300.00 for automobile insurance.
Appellant submitted evidence showing that he had $869.65 in his Chase bank account and $5.00
in his Credit Union 1 account. He included a copy of his lease and a one-page telephone bill
from AT&T. The AT&T statement showed a total amount due of $241.52, but did not list the
monthly charges.
By decision dated September 9, 2013, OWCP’s hearing representative found that an
$31,473.32 overpayment was created. He found that appellant was erroneously paid for an
additional six percent permanent impairment to each upper extremity.
The hearing
representative noted that appellant’s income exceeded his expenses by approximately $473.72.
He denied waiver and found that the overpayment could be recovered by deducting $400.00
from continuing compensation.

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LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
If a claimant received a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment of compensation may be created.
Claims for an increased schedule award based on the same edition of the A.M.A., Guides are
subject to overpayment.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical strain, concussion, cervical spinal
stenosis bilateral shoulder capsulitis, bilateral carpal tunnel syndrome and left medial
epicondylitis as the result of his September 8, 2003 and February 24, 2005 employment injuries.
On October 15, 2007 it granted schedule awards for a two percent permanent impairment to each
upper extremity. By decision date June 25, 2009, OWCP granted appellant additional schedule
awards for a total 13 percent right upper extremity impairment and a 14 percent left upper
extremity impairment.
On December 7 and 18, 2011 appellant filed claims for an additional schedule award
based on the December 8 and 22, 2011 reports from Dr. Grant, who rated a 62 percent bilateral
upper extremity impairment. By decision dated April 16, 2012, OWCP granted him awards for
an additional six percent impairment to each upper extremity based on Dr. Shukla’s opinion
which relied on the November 17, 2011 functional capacity evaluation schedule award
addendum by Dr. Lopez. By decision dated October 16, 2012, the hearing representative
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379 (2006).

6

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

7

See P.B., Docket No. 10-103 (issued July 23, 2010). Federal (FECA) Procedure Manual, Part 3 -- Claims,
Schedule Awards, Chapter 3.700, Exhibit 1 (January 9, 2010).
8

W.M., Docket No. 13-291 (issued June 12, 2013). Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards Claims for Increased Schedule Award, Chapter 2.809.9(e) (February 2013). See Richard Saldibar,
51 ECAB 585 (2000).

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remanded for clarification as to whether the prior awards incorporated the medical conditions for
which the most recent awards were based. On remand, Dr. Gross determined that appellant was
not entitled to additional schedule awards as the prior schedule awards incorporated the
diagnoses of shoulder impingement and carpal tunnel syndrome.
The Board finds that the schedule award issue has been properly resolved.9 OWCP
appropriately developed the medical evidence to determine that appellant was not entitled to an
additional six percent impairment of each upper extremity. Appellant previously received
schedule awards of 14 percent for the left upper extremity and 13 percent for the right upper
extremity. The most recent impairment ratings were performed under the same edition of the
A.M.A., Guides and incorporated the same medical conditions. OWCP determined that
appellant was overpaid in the amount of $31,473.32 based upon receipt of an additional six
percent impairment of each upper extremity. The Board notes that appellant did not contest the
amount of the overpayment. The Board will affirm the fact and amount of the overpayment in
this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA10 provides: 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 FECA of would be against equity and
good conscience.11
OWCP may consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she received from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in reporting events, which may affect entitlement to or the amount of
benefits. A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment: (1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) Failed to provide information which he or
she knew or should have known to be material; or (3) Accepted a payment which he or she knew
or should have known to be incorrect (this provision applies only to the overpaid individual).12
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The

9

W.M. and Richard Saldibar, id.

10

5 U.S.C. § 8129(b).

11

J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55
ECAB 245 (2004).
12

20 C.F.R. § 10.433(a),

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degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 2
OWCP found appellant was without fault in the creation of the overpayment. The issue
of whether he is entitled to waiver of recovery of the overpayment is not in posture for a
decision. OWCP denied waiver without providing a clear explanation for its determination.14
The September 9, 2013 decision noted only that appellant’s income exceeded his expenses. The
fact that his income exceeds his expenses is just one factor in considering whether waiver of
recovery of the overpayment is appropriate. As noted above, OWCP must also consider whether
recovery of the overpayment would defeat the purpose of FECA or be considered against equity
and good conscience.15 The decision by OWCP’s hearing representative provides insufficient
discussion or analysis as to whether waiver would be against equity and good conscience or
defeat the purpose of FECA when denying waiver of recovery of the overpayment. The decision
of whether OWCP shall waive recovery of an overpayment is a matter that rests in its discretion
to be exercised pursuant to regulatory guidelines. The Board will not substitute its own
discretion to decide the matter.16
The case will be remanded to OWCP for further clarification, including the provision of
additional detailed findings, regarding the issue of waiver of recovery of the $31,473.32
overpayment. After such development as it deems necessary, OWCP should issue an appropriate
decision regarding this matter.17
CONCLUSION
The Board finds that OWCP properly found that an overpayment of $31,473.22 was
created, for which appellant was without fault, due to his receipt of an additional schedule award
that he was not entitled to. The Board further finds that the case is not in posture for decision
regarding the issue of waiver of recovery of the overpayment.

13

Id. at § 10.433(b).

14

An OWCP decision shall contain findings of fact and a statement of reasons. 20 C.F.R. § 10.126; see also
O.R., 59 ECAB 432 (2008); Paul M. Colosi, 56 ECAB 294 (2005).
15

20 C.F.R. § 10.437 (a), (b); see J.K., Joan Ross and Desiderio Martinez, supra note 11.

16

See John M. Dunn, Docket No. 92-2096 (issued February 18, 1994).

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Given the Board’s finding regarding the issue of waiver of recovery of the overpayment, it is premature to
consider the issue of the method of repayment of the overpayment.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2013 is affirmed with respect to the fact and amount
of the overpayment. The September 9, 2013 decision is set aside with respect to the issue of
waiver of recovery of the overpayment. The case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: October 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 20-1577
Issued: January 14, 2022

Case Submitted on the Record

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

JURISDICTION
On August 31, 2020 appellant filed a timely appeal from a July 6, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $64,894.49, for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 6, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Administration (SSA) age-related retirement benefits for the period November 1, 2012 through
November 9, 2019, without an appropriate offset; and (2) whether it properly denied waiver of
recovery of the overpayment; (3) whether OWCP properly required recovery of the overpayment
by deducting $500.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On May 14, 2009 appellant, then a 62-year-old distribution clerk, filed a traumatic injury
claim (Form CA-1) alleging that she was involved in a motor vehicle accident on April 28, 2009
and sustained multiple injuries while in the performance of duty. OWCP initially accepted her
claim for contusion of the right upper arm and sprain of the left wrist. It subsequently expanded
the acceptance of appellant’s claim to include sprain of the right knee and leg, sprain of the right
shoulder, upper arm and rotator cuff, tear of the medial meniscus of the right knee, osteoarthritis
of the lower right leg, primary osteoarthritis of the bilateral lower leg, and articular bearing surface
wear of the right prosthetic joint. Appellant stopped work on April 29, 2009. OWCP paid her
compensation on the periodic rolls effective August 18, 2010.
On February 16, 2019 the employing establishment advised OWCP that appellant was
covered under the Federal Employees Retirement System (FERS) and was entitled to receive both
SSA age-related retirement benefits and FECA compensation benefits. It requested that OWCP
review her file to determine if it qualifies for the FERS offset and subsequent reduction of
compensation benefits.
On March 26, 2019 OWCP requested information from SSA regarding appellant’s
potential dual benefits.
OWCP received a completed FERS/SSA dual benefits calculation form from SSA dated
April 24, 2019. SSA listed appellant’s SSA age-related retirement benefit rates with and without
a FERS, for the period November 2012 through December 2018. Beginning November 2012, the
SSA rate with FERS was $1,575.90 and without FERS was $835.30. Beginning December 2012,
the SSA rate with FERS was $1,602.60 and without FERS was $849.50. Beginning
December 2013, the SSA rate with FERS was $1,626.60 and without FERS was $862.20.
Beginning December 2014, the SSA rate with FERS was $1,654.20 and without FERS was
$876.80. Beginning December 2015, the SSA rate with FERS was $1,654.20 and without FERS
was $876.80. Beginning December 2016, the SSA rate with FERS was $1,659.10 and without
FERS was $879.40. Beginning December 2017, the SSA rate with FERS was $1,962.20 and
without FERS was $896.90. Beginning December 2018, the SSA rate with FERS was $1,739.50
and without FERS was $922.00.
On November 20, 2019 OWCP prepared a FERS offset calculation worksheet wherein it
computed a total overpayment in the amount of $64,894.49 for the period November 1, 2012
through November 9, 2019. This form detailed that: from November 1 through 30, 2012 appellant
received an overpayment in the amount of $732.46; from December 1, 2012 through
November 30, 2013 she received an overpayment in the amount of $9,062.03; from December 1,
2013 through November 30, 2014 she received an overpayment in the amount of $9,198.00; from
December 1, 2014 through November 30, 2015 she received an overpayment in the amount of
$9,354.43; from December 1, 2015 through May 28, 2016 she received an overpayment in the

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amount of $4,614,33; and from November 13 through 30, 2016 she received an overpayment in
the amount of $461.43; from December 1, 2016 through November 30, 2017 she received an
overpayment in the amount of $9,382.10; from December 1, 2017 through November 30, 2018 she
received an overpayment in the amount of $12,818.72; and from December 1, 2018 through
November 9, 2019 she received an overpayment in the amount of $9,270.99.
OWCP provided another FERS offset calculation worksheet dated November 20, 2019,
which was identical to the prior November 20, 2019 worksheet, but noted an SSA rate with FERS
from December 1, 2017 of $1,692.20 and without FERS $896.90 and found that from December 1,
2017 through November 30, 2018 appellant received an overpayment in the amount of $9,569.82.
OWCP advised that she received a schedule award from May 29 to November 12, 2016. The total
overpayment calculated was $61,645.59.
In a letter dated November 20, 2019, OWCP informed appellant that it had determined that
she had been receiving SSA age-related retirement benefits since November 1, 2012. It explained
that SSA confirmed that a portion of her SSA age-related retirement benefits were attributable to
her federal service as an employee covered under FERS. OWCP explained that the portion of
appellant’s SSA age-related retirement benefits attributed to her federal service required an offset
of her FECA compensation per applicable federal regulations. It explained how her offset would
occur going forward with her payment dated December 1, 2019.
On February 10, 2020 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $64,894.49 had been created because
appellant received SSA age-related retirement benefits from November 1, 2012 through
November 9, 2019 that were partially based on credits earned while working in the Federal
Government, and that this portion of his SSA benefit was a prohibited dual benefit. It determined
that she was without fault in the creation of the overpayment. OWCP requested that appellant
submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine a
reasonable payment method, and advised her that she could request waiver of recovery of the
overpayment. It further requested that she provide supporting financial documentation, including
copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and
any other records to support income and expenses. Additionally, OWCP provided an overpayment
action request form and further notified appellant that, within 30 days of the date of the letter, she
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
On February 10, 2020 appellant completed an overpayment action request form and
requested a prerecoupment hearing before a representative of OWCP’s Branch of Hearings and
Review. She indicated that she was requesting waiver of recovery of overpayment because she
was found to be without fault and had no knowledge that she was being overpaid.
On a Form OWCP-20 completed on February 10, 2020 appellant reported that her total
monthly income was $1,767.00 from SSA benefits. She reported expenses totaling $3,829.00.
Appellant indicated monthly expenses of $1,840.00 for rent, $400.00 for food, $250.00 for
clothing, $480.00 for utilities, and $719.00 for other expenses. She also noted a monthly payment
of $140.00 for various credit card payments. Appellant further noted cash on hand of $40.00, a

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checking account balance of $69.00, and a savings account balance of $1,838.00. She submitted
supporting financial documentation.
In a May 5, 2020 notice, OWCP’s hearing representative informed appellant that her
prerecoupment hearing was scheduled for June 9, 2020 at 10:30 a.m. Eastern Standard Time
(EST). Appellant did not attend the prerecoupment hearing. Her request was converted to a review
of the written record.
In a statement dated June 18, 2020, appellant requested that no further deductions be taken
from her compensation and for the original payments to resume because it has affected her overall
standard of living. She asserted that SSA did not do their part with handling the paperwork and
she did not want to be penalized.
By decision dated July 6, 2020, OWCP’s hearing representative affirmed the preliminary
overpayment determination, which found that appellant had received an overpayment of
compensation in the amount of $64,894.49 for the period November 1, 2012 through November 9,
2019 because it failed to offset her compensation payments by the portion of her SSA age-related
retirement benefits that were attributable to her federal service. However, he also found that the
“correctly” calculated overpayment amount was $61,645.59. OWCP’s hearing representative
determined that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment. He found that the overpayment would be recovered by deduc ting
$500.00 from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 5 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits becau se the portion of the SSA
age-related retirement benefits earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.6

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

6

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

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ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period November 1, 2012 through November 9, 2019, because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits.
OWCP paid appellant wage-loss compensation for total disability on the periodic rolls
effective August 18, 2010. Beginning November 1, 2012, appellant received SSA age-related
retirement benefits. As noted, a claimant cannot concurrently receive wage-loss compensation and
SSA age-related retirement benefits attributable to federal service for the same period. 7 The
information provided by SSA indicated that a portion of appellant’s SSA age-related retirement
benefits were attributable to her federal service. As OWCP neglected to offset her FECA benefits
for the period November 1, 2012 through November 9, 2019, she received an overpayment of
wage-loss compensation. 8 Therefore, fact of overpayment is established. 9
The Board further finds that this case is not in posture for decision regarding the amount
of the overpayment.
Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA benefits that were attributable to appellant’s federal service.
SSA provided her SSA rate with FERS and without FERS beginning November 1, 2012. After
calculating the amount that it should have offset for each relevant period based on the
November 20, 2019 SSA worksheet and adding these amounts together, OWCP concluded that
appellant had received an overpayment of $64,894.49. In another FERS offset calculation form
also dated November 20, 2019, OWCP noted a “corrected” SSA rate from December 1, 2017 with
FERS of $1,692.20 and without FERS of $896.90. The total overpayment calculated with the
corrected SSA rate for December 1, 2017 was $61,645.59. However, without explanation, OWCP
then found in the preliminary overpayment determination, that the amount of the overpayment was
$64,894.49.
OWCP’s hearing representative affirmed the preliminary overpayment
determination, which found that appellant had received an overpayment of compensation in the
amount of $64,894.49. However, he also found that the “correctly” calculated overpayment
amount was $61,645.59. A claimant is entitled to an overpayment decision that clearly explains
how the amount was calculated. 10 The Board will, therefore, remand the case for OWCP to further
explain its calculation of the amount of the overpayment.
On remand OWCP shall determine the exact amount of the overpayment of compensation.
It shall then issue a new preliminary overpayment determination, with an overpayment action
request form, an overpayment recovery questionnaire, and instructions for appellant to prov ide

7

A.C., Docket No. 18-1550 (issued February 21, 2019).

8

Id.

9

See K.H., Docket No. 18-0171 (issued August 2, 2018).

10

R.B., Docket No. 20-0022 (issued October 28, 2020); O.R., 59 ECAB 432 (2008).

5

supporting financial information.11 After this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.12
CONCLUSION
The Board finds that appellant received an overpayment of compensation from
November 1, 2012 through November 9, 2019 for which she was without fault, because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without an appropriate offset. The Board further finds, however, that the case is not in posture for
decision regarding the amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 6, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: January 14, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11

See L.K., Docket No. 29-0416 (issued November 12, 2020).

12

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Indianapolis, IN, Employer
)
___________________________________________ )
L.B., Appellant

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

Docket No. 12-1796
Issued: March 27, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from the May 17, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which found that appellant did not
sustain an injury in the performance of duty. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on January 19, 2012.
FACTUAL HISTORY
On January 24, 2012 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim for her right buttocks and back of the head on January 19, 2012 she slipped and fell on
1

5 U.S.C. § 8101 et seq.

snow covered ice in the performance of duty. The employing establishment advised that there
was no medical evidence to support the claim. Appellant stopped work on January 20, 2012.
In a separate statement, appellant explained that she was walking on the grass delivering
mail when she slipped. Her feet went up in the air and she fell on her buttocks and hit her head.
Appellant noted there was snow covered ice on the ground and she had to slide off of the ice
before she could get up.
By letter dated February 22, 2012, OWCP advised appellant that additional factual and
medical evidence was needed. Appellant was requested to provide dates of examination and
treatment, a history of injury given by her to a physician, a detailed description of any findings,
the results of all x-rays and laboratory tests, a diagnosis and course of treatment followed and a
physician’s opinion supported by a medical explanation as to how the reported work incident
caused the claimed injury. OWCP explained that the physician’s opinion was crucial to her
claim and allotted 30 days within which to submit the requested information.
OWCP received a note from appellant advising that she was submitting another copy of
the claim form. In a January 19, 2012 disability certificate, from an individual whose signature
is illegible, appellant was placed off work until January 23, 2012.
By decision dated March 28, 2012, OWCP denied appellant’s claim finding that she did
not establish an injury as alleged. It found that she did not submit sufficient medical evidence to
establish that she sustained injury due to the January 19, 2012 incident.
On April 25, 2012 appellant requested reconsideration. She explained that she was
providing medical evidence in support of her claim. A January 19, 2012 emergency transport
form related that appellant was found after she had slipped and fell on snow-covered ice. She
was transported to the hospital.
A January 19, 2012 computerized tomography (CT) scan of the head read by
Dr. Margaret Hollar, a diagnostic radiologist and an osteopath, revealed no acute intracranial
abnormality, no evidence of mass legion, intracranial hemorrhage or acute infarction. A
January 19, 2012 CT scan of the cervical spine revealed no acute osseous abnormality.
A January 19, 2012 x-ray of the pelvis read by Dr. Karen S. Fitzgerald, a Board-certified
diagnostic radiologist, revealed no definite fracture demonstrated, no dislocation and no typical
findings of pelvic hematoma. OWCP also received January 19, 2012 emergency room discharge
instructions. It also received a copy of the January 19, 2012 return to work note.
By decision dated May 17, 2012, OWCP denied modification of the March 28, 2012
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial

2

evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
Appellant alleged that on January 19, 2012 she slipped and fell on snow-covered ice in
the performance of duty. There is no dispute that she slipped and fell on snow-covered ice while
in the performance of duty on that day. Appellant’s claim was denied by OWCP, finding
insufficient medical evidence to establish that the incident caused injury.
The Board finds that the medical evidence is not sufficient to establish that the
employment incident caused an injury. The medical reports of record do not relate a history of
slipping and falling on snow-covered ice or provide a firm medical diagnosis or statement on
causal relation.
Appellant provided a January 19, 2012 CT scan of the head from Dr. Hollar and an x-ray
also dated January 19, 2012 from Dr. Fitzgerald. However, these diagnostic reports do not
specifically address whether the accepted incident that day caused injury to her cervical spine or
buttocks. Consequently, the Board finds that this evidence is insufficient to establish her claim.7
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

6

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

7

To meet his or her burden of proof in establishing an injury in the performance of duty, a claimant must submit
medical evidence on causal relationship between a diagnosed injury and the employment incident. The Board has
held that medical evidence must be in the form of a reasoned opinion by a qualified physician based on a complete
and accurate factual and medical history. Thomas L. Agee, 56 ECAB 465 (2005).

3

Appellant provided a January 19, 2012 disability certificate from an unknown healthcare
provider placing her off work. The Board notes that it is not clear whether this report is from a
physician as the signature is illegible. As the form cannot be properly identified as being
prepared by a physician, it does constitute probative medical evidence in this case.8 The
emergency transport form and discharge instructions are not from a physician and do not
constitute competent medical evidence.9
In the present case, there is no reasoned medical evidence from a physician explaining
how and why the employment incident on January 19, 2012 caused or aggravated a diagnosed
medical condition.
For these reasons, appellant has not established that the January 19, 2012 employment
incident caused a specific injury. The Board notes that appellant submitted evidence with her
appeal to the Board. The Board cannot consider this evidence, however, as its review of the case
is limited to the evidence of record which was before OWCP at the time of its final decision.10
Appellant may submit this or any new evidence or argument with a written request for
reconsideration 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 in establishing that she
sustained an injury in the performance of duty.

8

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572, 575 (1988).

9

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law).
10

20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the May 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-965
Issued: November 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 8, 2007 denying his claim for a
recurrence of disability. 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 has established a recurrence of disability on or after
February 18, 2003.
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) for an injury on July 10, 1981 to
his right side and low back. The Office accepted this claim for permanent aggravation of

lumbosacral strain and aggravation of lumbar disc disease.1 Appellant submitted a notice of
recurrence of disability (Form CA-2a) commencing January 6, 1999. As he alleged that his
modified duties had aggravated his back condition, the claim was developed as a new
occupational disease claim. This claim was accepted for intervertebral disc disorder and
psychogenic pain.
Appellant stopped working on January 6, 1999. On December 3, 2002 the employing
establishment offered appellant a limited-duty, full-time position as a modified letter carrier.
The position was limited to 20 pounds lifting with no driving or delivery of mail. Appellant
returned to work on February 5, 2003. The record indicates he worked through February 18,
2003 and, on February 19, 2003; he began working four hours per day with intermittent periods
of work stoppage. Appellant stopped working on June 6, 2003.
On April 29, 2004 appellant filed a notice of recurrence of disability commencing
February 18, 2003. He stated that on February 18, 2003 he was lifting a tub of magazines from
the floor and he felt a popping or pulling in his back.2
Appellant was seen on February 18, 2003 by Dr. David Roberts, a psychologist, who
obtained a history that on that date appellant was lifting a container and felt a pop in his back.
He reported appellant had clear signs of depression and anxiety. In a report dated March 13,
2003, Dr. William Baumgartl, a pain management specialist, diagnosed chronic low back and leg
pain. He stated that appellant had been permanent and stationary since December 2002 but felt
he was unable to continue working. By report dated May 1, 2003, Dr. Linda Skory, an internist,
noted appellant had shown very little improvement in his symptoms and would be best served by
disability retirement. Dr. Baumgartl noted in a June 23, 2003 report that appellant had been off
work since June 6, 2003. He indicated appellant was scheduled to return to work on June 28,
2003, but appellant was strongly against returning to his old job.
In a report dated September 3, 2003, Dr. Robert Fink, a neurosurgeon, reported that on
February 18, 2003 appellant was lifting some mail and felt immediate low and upper back pain.
By report dated September 24, 2003, he stated that appellant had first injured his back at work on
July 10, 1981, and then on February 18, 2003 had aggravated his injury and appellant’s current
disability was related to this aggravation. Dr. Fink opined that appellant would not be able to
return to work as a modified letter carrier and recommended disability retirement.
He
continued to indicate appellant was totally disabled in reports dated December 9, 2003 and
February 10, 2004.
By decision dated January 25, 2006, the Office denied the claim for a recurrence of
disability. It found the medical evidence was insufficient to establish the claim.

1

OWCP File No. xxxxxx809. This claim is a subsidiary file of the current file. In a prior appeal, the Board
affirmed a December 8, 1998 Office decision denying a claim for a recurrence of disability on July 16, 1998, and a
May 25, 1999 Office decision denying merit review.
2

The record indicates that appellant filed a traumatic injury claim for February 18, 2003 and a new claim was
developed under OWCP File No. xxxxxx162. That claim is not before the Board.

2

In a letter dated February 20, 2006, appellant requested a hearing before an Office
hearing representative. In an April 5, 2006 report, Dr. Fink stated that on February 18, 2003
appellant had “reinjured his back while attempting to lift a tub of magazines from the floor.” He
further stated that appellant did not suffer a new injury on February 18, 2003, but an aggravation
of his existing injury. Dr. Fink concluded appellant had been permanently disabled since
February 18, 2003. In a November 29, 2006 report, he stated his decision to remove appellant
from work in 2003 was based on the reinjury and not a natural progression. A hearing was held
on November 16, 2006.
By decision dated February 8, 2007, the Office hearing representative affirmed the
January 25, 2006 Office decision. The hearing representative found the medical evidence was
insufficient to establish a recurrence of disability.
LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically
to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical
limitations.”3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
3

20 C.F.R. § 10.5(x).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman 38 ECAB
222 (1986).
5

Maurissa Mack, 50 ECAB 498 (1999). For a claimed recurrence of disability within 90 days of a return to
work, the focus is generally on disability rather than causal relationship, although if the diagnosed condition is not
an accepted condition, the evidence must establish causal relationship with employment. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6 (January 1995).

3

ANALYSIS
Appellant filed a claim for a recurrence of disability on or after February 18, 2003. The
record indicated that he had returned to work in a modified position on or about
February 5, 2003. From February 19 to June 6, 2003, appellant worked intermittently at
approximately four hours per day and then he stopped working. It is his burden of proof to
establish a recurrence of disability for the claimed periods.
As noted, a recurrence of disability is a spontaneous change in an employment-related
without an intervening injury. The CA-2a form appellant submitted indicated that on
February 18, 2003 he was lifting a tub of mail while working and felt a popping or pulling in his
back. Dr. Fink consistently reported that appellant had sustained an injury after attempting to lift
a tub of mail. While he asserted in his April 5, 2006 report that this was not a new injury, he
clearly based this statement on the assumption that an aggravation of a prior injury was not a
new injury. Under well established Office procedures, however, when an injury is claimed from
a new employment incident, even if it involves the same part of the body previously injured, it
constitutes a claim for a new injury and must be developed as such.6 The record indicates that
appellant did properly file a claim for a new injury on February 18, 2003; however, it is not
before the Board on this appeal. The only issue is whether appellant sustained a recurrence of
disability on or after February 18, 2003.
None of the evidence of record supports a period of disability after February 18, 2003
resulting from a spontaneous change in the accepted conditions without intervening injury.
Dr. Baumgartl, in his March 13, 2003 report, did not provide a complete history and referred
generally to chronic pain, without providing a reasoned medical opinion as to a period of
disability resulting from a change in the nature and extent of an employment-related condition.
Dr. Fink, as noted above, described an intervening injury on February 18, 2003. The Board finds
appellant did not meet his burden of proof to establish a recurrence of disability in this case.
CONCLUSION
The evidence of record is not sufficient to establish a recurrence of disability on or after
February 18, 2003.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 8, 2007 is affirmed.
Issued: November 25, 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
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, INSPECTION
SERVICE, Hartford, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-963
Issued: June 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Re: Attorney’s Fee
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 7, 2011 appellant filed a timely appeal of an October 26, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) approving an attorney’s fee. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider this attorney’s fee case.
ISSUE
The issue is whether OWCP abused its discretion by approving an attorney fee in the
amount of $100,000.00.
On appeal appellant alleged Hector Cordero Vega, Esquire, previously his attorney, was
not entitled to attorney’s fees in the amount determined by OWCP as the determination was not
based on the actual hours spent, but instead on an approximation resulting in a contingency fee

1

5 U.S.C. § 8101 et seq.

payment. He suggested that the number of hours should be based on his estimation of the work
done by Mr. Vega.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, a 45-year-old postal
inspector filed an emotional condition claim. The Board found that he established compensable
factors of employment and remanded the case for development of the medical evidence.2 OWCP
developed the evidence and denied appellant’s claim by decision dated November 10, 2004.
Appellant appealed to the Board and by decision and order dated May 16, 2005,3 the Board again
remanded the case for additional development of the medical evidence. The facts of the case as
set out in the Board’s prior decision are incorporated herein by reference.
OWCP accepted appellant’s claim for depressive disorder on September 15, 2004. On
April 16, 2007 it determined that he was entitled to compensation in the amount of $817,113.20.
OWCP entered appellant on the periodic rolls on May 2, 2007. It paid the Office of Personnel
Management $428,848.33. Appellant ended his association with his attorney, Mr. Vega, on
May 4, 2007.
By letter dated April 10, 2008, Mr. Vega requested approval of attorney’s fees from
January 1995 through May 2007 under section 10.703 of OWCP’s regulations.4 He stated that
he was unable to provide a statement of agreement or disagreement from appellant, who had
pursued steps to prevent from being contacted. Mr. Vega had agreed to represent appellant
before OWCP in 1995. He listed his services as an initial interview, subsequent meetings,
reading, studying and analyzing hundreds of documents, telephone conferences, visits with
federal employees and to law libraries, preparation of legal briefs memoranda and letters and
preparation of appeals and written appearances including 42 scheduled meetings with appellant.
Mr. Vega noted that appellant was willing to pay $100.00 per hour for services rendered, but that
he had paid his previous attorney $150.00. He stated, “[L]egal fees were negotiated in a
contingency basis.” Mr. Vega stated that appellant had initiated an unsubstantiated complaint
against him. He suggested that a reasonable hourly rate was $250.00 and that he had worked
1,064 hours during 13 years of legal service.
Mr. Vega listed his legal services and stated that he spent 250 hours reading documents
and listed 34 documents. He alleged that he wrote 7 legal briefs, 20 formal letters, 4 motions and
3 appeals and obtained multiple sworn statements. Mr. Vega asserted that he spent 342 hours in
analyzing and drafting 36 documents. He indicated that he spent 300 hours of legal research
including reading 58 legal cases. Mr. Vega stated that he spent 4 hours in the initial conference
with appellant, 6 hours in follow-up conferences and 16 hours in initial research activities. He
also detailed 70 hours of meetings with appellant discussing documents. Mr. Vega stated that he
spent eight hours each with appellant at the Equal Employment Opportunity and National Labor
2

Docket No.03-720 (issued May 20, 2004).

3

Docket No. 05-457 (issued May 16, 2005).

4

20 C.F.R. § 10.703.

2

Relations Board to gather information. He spent four hours in completing sworn statements and
four hours meeting with appellant on April 27, 2007. Mr. Vega mentioned 44 recorded dates of
meeting with appellant to discuss legal strategy. He made 26 telephone calls on behalf of
appellant and one telephone conference per month for 156 months. Mr. Vega estimated that he
spent 40 hours in telephone calls. He listed the dates of 25 telephone calls. Mr. Vega requested
compensation for his official travel time of eight hours to New York and eight hours for travel to
Washington, DC.
By letter dated May 14, 2008, OWCP requested that appellant comment on the fee
request and state his view of whether the fee charged was reasonable and appropriate. It
provided a copy of Mr. Vega’s fee request and noted that Mr. Vega had not specified the exact
amount of the fee requested. OWCP allowed appellant 30 days to submit comments.
In a letter dated May 19, 2008, OWCP requested that Mr. Vega provide the exact amount
of attorney’s fees requested and the exact number of total hours spent on appellant’s case from
January 1995 through May 2007. It stated that it would issue a decision within 30 days.
Mr. Vega responded on May 25, 2008 that he believed he was entitled to a rate of $250.00 per
hour and had worked 1,064 hours. He stated that he entered a contingency fee agreement with
appellant with an initial retainer of $1,000.00. Mr. Vega agreed to accept $100,000.00 from
appellant based on 33 percent contingency fee as appellant had received more than $300,000.00
from OWCP.
On June 4, 2008 appellant disagreed with the approval of any attorney’s fees. He stated
that Mr. Vega’s application was based on an estimate of the number of hours worked or on an
average of documents. Appellant noted that Mr. Vega did not submit an itemized statement or
record of time or provide an application of legal fees to the Board. He alleged that Mr. Vega
agreed to take his case for a retainer of $1,000.00 and ongoing fees of $100.00 per hour. Once
appellant’s claim was accepted, Mr. Vega demanded a third of the payment received from
OWCP. He alleged that Mr. Vega did not visit the government offices in Puerto Rico and
appellant further disputed Mr. Vega’s estimates of time spent on research and drafting of
documents. Appellant alleged that Mr. Vega spent no more than a total of 253.75 hours working
on his claim. He also disputed the travel expenses to New York and Washington, DC to visit
OWCP and the Secretary of Labor. Appellant submitted a January 4, 1995 sworn statement from
Mr. Vega in regard to his fees in a claim before the Merit Systems Protection Board. He stated
that the prevailing hourly billing rate in the community was $100.00 for similar work by
attorneys of comparable qualifications.
In a letter dated June 26, 2008, OWCP again requested additional information from
Mr. Vega including an itemized statement of his definitive hourly rate, the exact number of hours
worked and a description of the specific work performed. It asked that Mr. Vega provide the
total amount charged for representation excluding administrative costs.
On July 28, 2008 Mr. Vega responded that he had provided the information requested.
He noted that he was 86 years old and had worked for appellant for 13 years, receiving no
remuneration other than the initial $1,000.00 retainer. Mr. Vega stated that the initial agreement
was that he would work on a contingency agreement. He claimed payment for 1,064 hours from
January 1995 through May 2007. Mr. Vega stated that he did not keep a log book and had been

3

conservative in his estimation of services rendered. He again listed his services and estimates of
the hours spent, requesting payment for 1,064 hours based on a rate of $250.00 an hour, or total
fees of $266,000.00. Mr. Vega noted that appellant had received $828,000.00 in accrued wages
and continuing compensation payments of $5,000.00 per month. He noted that appellant also
recovered all medical expenses and would receive continuing medical benefits.
In a decision dated August 14, 2008, OWCP granted attorney’s fees in the amount of
$106,400.00 but vacated that decision on August 19, 2008.
Through a letter dated August 20, 2008, OWCP noted that appellant disagreed with the
amount of attorney’s fees requested by Mr. Vega and provided him with a copy of the fee request
and Mr. Vega’s July 28, 2008 letter. Appellant had 15 days to provide any additional argument
in support of his disagreement. By response dated August 28, 2008, appellant stated the hourly
rate was not accepted in the locality. He reiterated that Mr. Vega had worked only 253.75 hours
and had vacationed in New York and Washington, DC rather than pursuing his claim. Of the
cases listed by Mr. Vega, 18 were improperly identified, 33 were “burden of proof” and 11
addressed traumatic injury and medical conditions. Appellant argued that Mr. Vega should be
compensated for 30 hours of legal research. He noted that Mr. Vega had initially requested
payment based on a contingency fee of 33 percent of $395,982.91.
OWCP forwarded appellant’s responses to Mr. Vega on September 9, 2008. On
September 19, 2008 Mr. Vega disputed appellant’s allegations noting that he read thousands of
pages on appellant’s behalf. He requested a final determination related to his request for legal
fees. On November 10, 2008 appellant requested a copy of Mr. Vega’s September 19, 2008
letter.
On January 5, 2009 Mr. Vega requested that OWCP approve his claim for attorney’s fees
from January 1995 through May 2007. A telephone memorandum indicated that the claims
examiner contacted the Puerto Rico Federal Bar Association regarding the general hourly
attorney fee rate.
On February 11, 2009 OWCP documented a conference call on February 20, 2009 with
Veronica Ferraiuoli of the Puerto Rico Bar Association to determine the approximate hourly rate
for an attorney’s fees in Puerto Rico between 1995 and 2007. Ms. Ferraiuoli stated that the
approximate hourly rate ranged from $125.00 to an excess of $350.00 per hour. She stated that
in government cases the usual fee was $125.00 per hour.
On February 19, 2009 appellant requested an itemized statement from Mr. Vega. In a
separate letter of the same date, he stated that Mr. Vega’s hourly rate should be based on the rate
he charged to appear before the Merit System Protection Board. He again asserted Mr. Vega
charged $100.00 per hour in such a case.
In a letter dated March 17, 2009, OWCP informed Mr. Vega that appellant did not agree
with the hourly rate or the number of hours requested. The claims examiner noted that
contingency fees were not recognized and would not be considered in determining a reasonable
fee. OWCP proposed to reduce the fee to $100,000.00 based on an hourly rate of $100.00 for
1000 hours. It stated that a telephone call to the local bar association indicated that in 1995 fees

4

ranged from $125.00 per hour and that in January 1995 Mr. Vega had agreed to an hourly rate of
$100.00 stating that it was the regional rate for similar work by attorneys of comparable
qualifications. OWCP determined that $100.00 was the appropriate hourly rate. The claims
examiner stated that he took into consideration the usefulness of Mr. Vega’s services, the nature
and complexity of the claim, the time spent on development and presentation of the claim, the
amount of compensation accrued and potential future payments, Mr. Vega’s professional
qualifications and the customary local charges for similar services in his locale.
OWCP reduced the number of hours for preparing legal briefs by 100 hours as Board
appeals were not within its jurisdiction. It also reduced the number of hours for travel from eight
to four as “the nature of such visits does not appear to warrant eight hours each.” The claims
examiner stated:
“The record establishes that the claim was previously denied, several times and
subsequently approved because of your diligent efforts. You succeeded in
presenting persuasive evidence to support the claim, where another representative
failed. Due to your diligence and repeated skillful appeals, you succeeded in
providing evidence to establish the claimant’s right to compensation retroactive
for a period of 14 years. The claimant was awarded accrued compensation in
excess of $750,000.00 as a result of this effort.”
OWCP found that Mr. Vega was entitled to compensation for attorney’s fees in the amount of
$100,000.00 for 1000 hours of work, including 250 hours of reading and analyzing documents,
242 hours of preparing legal briefs, 20 hours of preparing letters, 300 hours of research, 70 hours
of meetings, 50 hours of document analysis, 8 hours to cosign documents and 40 hours for
telephone calls. It stated that payment of the fee was appellant’s responsibility. OWCP allowed
30 days for a response from Mr. Vega. In a letter dated March 23, 2009, Mr. Vega accepted the
reduction to fees of $100,000.00.
By decision dated April 20, 2009, OWCP approved attorney’s fees in the amount of
$100,000.00.
Appellant requested reconsideration on April 11, 2010. He contended that the amount
approved by OWCP was based on a contingency fee contract. Appellant stated that Mr. Vega
failed to provide a log of services provided. He noted that OWCP’s decision was based on a
mathematical error as OWCP failed to deduct 108 hours from the 1064 hours claimed by
Mr. Vega as stated in the opinion, instead deducting only 64 hours.
By decision dated October 26, 2010, OWCP reviewed the April 20, 2009 decision and
denied modification.
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 mandated by Board decisions. The Board’s

5

sole function is to determine whether the action by OWCP constituted an abuse of discretion.5
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.6
Section 10.703 of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.7 When a fee application has
been disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection.8 After the claimant
has been afforded 15 days from the date the request was forwarded to respond to the request,
OWCP will then proceed to review the fee application to determine whether the amount of the
fee is substantially in excess of the value of services received by looking at the following factors:
(i) usefulness of the representative’s services; (ii) the nature and complexity of the claim; (iii) the
actual time spent on development and presentation of the claim; and (iv) customary local charges
for similar services.9 Contingency fee arrangements are not recognized under FECA.10
ANALYSIS
The Board finds that OWCP properly considered the relevant criteria in approving an
attorney’s fee of $100,000.00. While Mr. Vega initially stated he and appellant had agreed to a
contingency fee arrangement, he provided OWCP with a detailed list of the services provided to
appellant and his best estimate of the time he spent on each.
Appellant argued on appeal that Mr. Vega did not provide adequate documentation of the
hours claimed, that OWCP approved the fee as a contingency fee and that there was a
mathematical error in calculating the amount of the fee.
The Board finds that OWCP properly exercised its discretion by researching what would
have been a reasonable hourly rate of $100.00. Further, Mr. Vega submitted sufficient
documentation of time spent on the case and OWCP properly determined, based on a review of
Mr. Vega’s actual successful participation in the presentation of appellant’s case before OWCP,
that a fee of $100,000.00 was reasonable.
While Mr. Vega can be faulted for not providing sufficient documentation of his services
and for failing to obtain a proper fee agreement for services, he did provide documentation of
services performed and the results he achieved in support of his client’s emotional condition
5

C.H., Docket No. 10-987 (issued March 22, 2011) and L.H., Docket No. 11-900 (issued December 6, 2011).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990).

7

20 C.F.R. § 10.703(a)(i).

8

Id. at § 10.703(c).

9

Id.

10

Angela M. Sanden, Docket No. 04-1632 (issued September 20, 2004).

6

claim were not insignificant -- over $800,000.00 in accrued wages and continuing compensation
payments of $5,000.00 a month.
As OWCP properly provided appellant an opportunity to comment on the fee request and
as OWCP properly considered the factors necessary in evaluating fee requests, (i.e., the
usefulness of the representative’s services, the nature and complexity of the claim, the actual
time spent on development and presentation of the claim and customary local charges for similar
services),11 the Board finds OWCP properly exercised its discretion in approving a fee of
$100,000.00.12
CONCLUSION
The Board finds that OWCP did not abuse its discretion in approving an application for
attorney’s fee in the hourly rate of $100.00 for 956 hours or a corrected amount of $95,600.00.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2010 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

Supra note 8.

12

Although there may be a mathematical miscalculation in reducing the number of hours to reach 1,000 hours,
the Board finds that OWCP clearly determined the fee amount should be $100,000.00 and any mathematical error in
reaching that determined amount is harmless.

7

James A. Haynes, Alternate Judge concurring:
I concur with the holding of the Board affirming, as modified, the decision of OWCP
which approves an attorney’s fee for appellant’s former counsel. However, I would also have
affirmed a further reduction in the already reduced fee authorized by OWCP which is further
reduced by the Board. I adopt this position because of lapses in the attorney’s recordkeeping,
client communication and his failure to obtain a written, executed retainer and fee agreement
from his client.
Appellant filed an appeal to dispute an attorney’s fee approved by OWCP. The standard
of review for the Board is whether OWCP abused its discretion in approving the fee.
I rely on the factual history found in the majority opinion. The record contains no
dispositive evidence of an agreed hourly rate for legal services. Appellant claimed that his
attorney was entitled to $100.00 an hour. The attorney claimed $250.00 an hour. The record
contains no dispositive evidence of the number of hours counsel worked. Appellant asserted that
his attorney should be compensated for only 253.75 hours. The attorney claimed 1,064 hours.
The record is clear that appellant retained counsel to represent him in his claim in early
1995 and that counsel continued to do so until May 2007. Both parties agree that some fee is
owed. Objectively, it is clear that some fee has been earned. Appellant and counsel agree that
they originally attempted to create a contingent fee relationship and acted for some period of
time on the assumption that they had one. They never altered that understanding with any
written agreement although contingent fees are forbidden in claims brought under FECA.1
While represented by counsel, appellant prevailed in his claim and received a substantial
retroactive award of benefits.
In support of his fee petition, counsel was unable to establish an agreed hourly rate for his
services. Counsel was also unable to present an accurate, contemporaneous account of his work
for the 13 years he represented appellant. The record does not appear to contain any regularly
provided, periodic billing statements or progress reports from the attorney to his client. The
attorney presented only estimated hours for his work over a multi-year period.
OWCP determined a reasonable fee by obtaining the opinion of a representative of the
Puerto Rico chapter of the Federal Bar Association. It determined that the actual hours to be
compensated by an analysis of the assertions of appellant and his attorney and the incomplete
records which were available and appeared most accurate. OWCP also decided that a case which
was litigated more than 13 years was probably more complex than most.

1

The record indicates that appellant and his attorney agreed that appellant would provide a $1000.00 retainer. It
is a misdemeanor violation for an attorney to collect a fee which has not been submitted as a fee petition to OWCP
or ECAB and approved. 20 C.F.R. 10.702 (2011). The Board has constantly maintained a rule that requires an
independent evaluation of fee petitions before an attorney may to collect any fee. This rule is discussed and
explained in the various opinions. See: Keith L. Beaver, 30 ECAB 216 (1978).

9

It is reasonable to conclude that the fee approved by OWCP might, on this thin and
conflicted record, have been more or less.2 But the Board has held that, while it might set a fee
higher or lower, its review is limited to whether OWCP properly exercised its discretion.3 Only
if an abuse of discretion is found can the Board revise an attorney’s fee award or remand the case
to OWCP for further development.4
The applicable regulations list criteria for OWCP to apply in its consideration of the
value of legal representation and the appropriate attorney fee.5 That list is found in the legal
precedent of the majority and is reproduced here:
(1) The usefulness of the representative’s services.
(2) The nature and complexity of the claim.
(3) The actual time spent on development and presentation of the claim.
(4) The customary local charges for similar services.
The regulations share and adopt the substance of standards found in Board decisions.6 Because
of the similarity between Board case law and the text of the regulations, Board opinions which
predate the current regulations may be cited with confidence on the issue of attorney fees.
This opinion is most concerned with the first and most important regulatory criterion. An
attorney in active practice has professional obligations which are explicitly established in every
jurisdiction which licenses lawyers. Where an attorney fails to keep records of time and cost and
also fails to communicate with his or her client, the usefulness of the representation should be
questioned. Where an attorney has failed to secure evidence of an agreement with his or her
client for the scope cost of the legal work, the attorney places his or her right to compensation at
risk.7

2

The Board has reduced the fee from $100,000.00 to $95,600.00 because of a mathematical error by OWCP.

3

Lucy A. Ponder, 31 ECAB 560 (1980); Sander Jacob Burstein, 27 ECAB 117 (1975).

4

K.F., Docket No. 09-2244 (issued June 14, 2010).

5

20 C.F.R. § 10.703(c).

6

Compare: Sander Jacob Burstein, supra note 3; and John E. Harman, 41 ECAB 169 (1989). The criteria for
evaluating legal services listed in the earlier opinion are repeated with minor changes of wording in the later opinion
issued after those criteria were included in the Code of Federal Regulations.
7

In a factual situation not unlike this case, the Board found that OWCP had abused its discretion by failing to
require an attorney to support the allegations of time and billing rates. The attorney and client had attempted to
establish a contingent fee. The lengthy representation lasted from July 1980 to June 1987. The claimant eventually
received a substantial retroactive award of benefits and first accepted the fee as stated in the petition but later
objected to the amount in an appeal to the Board. Charles A. Mikalaynas, 40 ECAB 1277 (1989).

10

The Board has held that, where the claimant disagrees with the requested fee, OWCP
must try to obtain a complete record from the attorney and claimant including a signed retainer
or fee agreement, correspondence and billing statements. This information is essential to the
evaluation of fee petitions and failure to obtain it may result in remand to OWCP for further
development.8 The Board has remanded where OWCP has failed to gather and use information
regarding fees charged in the local area for similar services.9 In other situations the Board has
emphasized the importance of a retainer agreement by remanding where OWCP failed to
consider it before rendering its decision.10 This precedent, in particular, should encourage
attorneys to obtain agreements which prove their client’s consent with regard to client expenses
and with regard to the scope of the representation and then to communicate regularly the status
of the client’s claim and the expenses the client has incurred.
While not cited in the majority opinion, attorneys occasionally refer to the opinion in
V.T.11 for the proposition that, where an attorney presents a fee petition listing time devoted to
various activities, OWCP must provide “clear and convincing evidence” that the assertions of the
fee petition are incorrect. This opinion requires some context. Taken at face value, the case
might appear to create a presumption of correctness for lawyer’s seeking fees and require OWCP
to disprove the attorney’s assertions. Such a reading would clearly violate the statute and rob
OWCP of its discretion to approve petitions. The better reading of this case and others with
similar language is that where an attorney provides contemporaneous records that are accurate,
detailed and consistent, a fee petition based on those records is more credible than
unsubstantiated complaints of an unhappy client. No special presumption is created. The
attorney is merely required to support a fee petition and to respond to questions from OWCP if
the client challenges the amount requested in the petition. An unsupported fee petition should,
under proper circumstances, be reduced or denied.
The petition disputed in this appeal is unsupported by a retainer or fee agreement or
periodic communication by counsel with the client. There is other evidence in the record which
justifies the fee awarded by the Board but the standards of record-keeping and client contact
revealed in this record must raise serious questions about the quality of the professional services
provided to appellant. The Board’s reduction in the amount requested by counsel in his fee
petition is fully justified.

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
8

L.H., Docket No. 09-777 (issued June 28, 2010).

9

Nancy L. Smith, Docket No. 95-1428 (issued August 15, 1997).

10

Yolanda R. Bennage, Docket No. 00-1048 (issued October 1, 2001).

11

58 ECAB 133 (2006).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
FEDERAL AVIATION ADMINISTRATION,
WASHINGTON CENTER, Leesburg, VA
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1999
Issued: April 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 14, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated June 10, 2008. 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 has met his burden or proof in establishing that he
developed an emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On December 26, 2006 appellant, then a 40-year-old air traffic control specialist, filed a
traumatic injury claim alleging that he developed mental duress, extreme anxiety, worry, fears,
nausea and dizziness. He attributed his symptoms to the promotion of supervisor, Tess Powell,
against whom he had filed a hostile work environment complaint. In support of his claim,
appellant submitted a report dated January 3, 2007 from a licensed clinical social worker.

The Office requested additional factual and medical information in a letter dated
April 6, 2007. It allowed appellant 30 days for a response. Appellant noted that he had filed a
complaint against Ms. Powell on December 13, 2006 for creating a hostile work environment.
He stated, “I am not claiming Ms. Powell’s grabbing of me as the cause of the harm.” Instead,
appellant attributed his emotional condition to learning that Ms. Powell had been promoted. He
learned on December 26, 2006 that she had received a promotion to operations manager and
appellant became fearful of retaliation as she would be in a position of control over his working
conditions and status. Appellant felt his job was in jeopardy. He also attributed his emotional
condition to the investigation of the hostile work environment claim. Appellant contended that
the investigation was grossly unfair as he had not been interviewed during the course of the
investigation, noting that a coworker, Terrence Accoo, had been interviewed. He submitted a
copy of Mr. Accoo’s statement which noted that Ms. Powell had grabbed appellant and him by
the arms and ushered them from a hallway where they had been discussing a football game.
By decision dated September 6, 2007, the Office denied appellant’s claim on the grounds
that he failed to submit the necessary medical opinion evidence to establish a prima facie case
for a traumatic injury. It noted that a licensed clinical social worker was not a physician for the
purposes of the Federal Employees’ Compensation Act.1
Appellant requested reconsideration on December 3, 2007 and reiterated that the
investigation of his hostile work environment complaint was inadequate as he was not
interviewed. He also submitted a copy of the formal complaint that he filed. Appellant
submitted a report dated March 11, 2008 from Dr. Jennifer James, a Board-certified internist,
who noted appellant’s history of injury and diagnosed adjustment disorder with anxious mood.
By decision dated June 10, 2008, the Office modified the September 6, 2007 decision to
deny his claim on the grounds that he failed to substantiate a compensable factor of employment
as causing or contributing to his diagnosed emotional condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.3
1

See Arnold A. Alley, 44 ECAB 912 (1993); Debbie J. Hobbs, 43 ECAB 135 (1991).

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).

2

As a general rule, a claimant’s reaction to administrative or personnel matters falls
outside the scope of the Act. However, to the extent that the evidence demonstrates that the
employing establishment either erred or acted abusively in discharging its administrative or
personnel responsibilities, such action will be considered a compensable employment factor.4
ANALYSIS
Appellant attributed his emotional condition to learning of the promotion of Ms. Powell
to operations manager on December 26, 2006. He feared retaliation and the loss of his position
due to her promotion following a complaint against her. The record does not establish that
Ms. Powell had assumed the duties of her new position or had taken any action against appellant.
Appellant addressed the possibility that she might take negative actions against him. The
possibility of a future injury does not constitute an injury under the Act.5 Appellant therefore has
not established any compensable factor of employment in this regard.
Appellant also attributed his emotional condition to the employing establishment’s
handling of the investigation into his hostile work environment complaint against Ms. Powell.
He alleged that the investigation was inadequate as Mr. Accoo was interviewed while he was
not. An investigation by the employing establishment is an administrative matter.6 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.
However, where the evidence demonstrates that the employing establishment either erred or
acted abusively in the administration of personnel matters, coverage may be afforded. The
Board finds that the evidence of record is insufficient to establish administrative error or abuse in
the investigation of appellant’s complaints. The record reflects that appellant was dissatisfied
with the course of the investigation as he was not interviewed. However, this fact alone is not
sufficient to establish error or abuse on the part of the employing establishment in conducting the
investigation. Appellant has not established a compensable factor of employment in regards to
the investigation.7
CONCLUSION
The Board finds that appellant failed to substantiate a compensable factor of employment
as causing or contributing to his emotional condition claim.

4

James P. Guinan, 51 ECAB 604, 607 (2000).

5

Ernest St. Pierre, 51 ECAB 623, 625 (2000).

6

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

7

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4