United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elmhurst, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0503
Issued: August 24, 2021

Case Submitted on the Record

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

JURISDICTION
On February 16, 2021 appellant, through counsel, filed a timely appeal from a February 3,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing February 16, 2018, causally related to her accepted November 26, 2011
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On November 28, 2011 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 26, 2011 she sustained a left arm and shoulder
injury when lifting a mail tray from the back of her mail truck while in the performance of duty.
OWCP accepted the claim for left upper arm joint pain, neck sprain, C5-6 disc herniation, and
right brachial neuritis/radiculitis. It also authorized a May 2, 2012 anterior cervical discectomy
and fusion at C5-6 performed by Dr. Dalip Pelinkovic, a Board-certified orthopedic surgeon.
OWCP paid appellant wage-loss compensation for temporary total disability for the period
April 12 through December 24, 2012.
In a January 10, 2013 work capacity evaluation (Form OWCP-5c), Dr. Pelinkovic advised
that appellant was capable of performing her usual job. He recommended that she use a cart to
avoid reinjuring her neck.4
On March 12, 2018 appellant filed a notice of recurrence (Form CA-2a) claiming disability
beginning February 16, 2018. She stopped work completely as of March 7, 2018. Appellant noted
that she no longer delivered mail as of January 2016, and had since been promoted to a supervisor.
She explained that on February 16, 2018 she experienced sharp pain in her neck and across both
shoulders, with numbness and tingling in her hands.
In an attached statement, appellant recounted that she returned to regular duties as a letter
carrier on December 24, 2012 following her November 26, 2011 employment injury. She reported
experiencing intermittent pain, weakness, and numbness in her hands months after returning to
work, which worsened in January 2018, causing her to seek treatment at an urgent care facility on
February 16, 2018.
In a treatment note dated March 30, 2018, Dr. Vivek Mohan, a Board-certified orthopedic
surgeon, treated appellant for severe neck pain, numbness in both hands, and weakness in her upper
extremities. He noted the findings of a 2018 magnetic resonance imaging (MRI) scan of the
cervical spine. Dr. Mohan diagnosed cervical disc disorder with myelopathy and status post
3

Docket No. 19-0481 (issued August 20, 2019).

4

On January 13, 2015 appellant sustained another work-related traumatic injury, which OWCP accepted for left
hip contusion under OWCP File No. xxxxxx290. She was released to resume her full-time, regular work duties
effective February 14, 2015. Appellant’s claims have not been administratively combined.

2

cervical spinal fusion. He recommended a C3-4 fusion, possible fusion of C4-5, possible removal
of C5-6 anterior cervical hardware due to the severe stenosis with myelopathy at C3-4, and large
disc herniation. On April 23, 2018 appellant underwent a C3-4 anterior cervical discectomy and
fusion. Dr. Mohan advised that because she was a letter carrier she could not return to work for
three months. He noted a likelihood that this was a recurrent disc herniation due to prior cervical
fusions and related to a work injury.
By decision dated June 22, 2018, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence of record was insufficient to establish that her
accepted November 26, 2011 employment injury had worsened to the extent that she was disabled
from her work duties.
On June 29, 2018 appellant through counsel requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
October 22, 2018.
OWCP subsequently received additional evidence. In a report dated February 21, 2018,
Dr. Pelinkovic noted that he treated appellant for neck pain and right shoulder pain radiating over
her deltoid and shoulder blade. He diagnosed cervical radiculopathy and noted that x-rays revealed
a fusion at C5-6 with C4-5 segment disease. Dr. Pelinkovic returned appellant to work with
restrictions. On March 7, 2018 appellant presented with neck pain and clumsiness in the upper
extremity. Dr. Pelinkovic reviewed the MRI scan findings and diagnosed cervical spinal stenosis
with myelopathy, history of cervical spinal fusion, and extension of fusion by two levels. He
advised that appellant remain off work until her follow-up appointment.
On April 23, 2018 Dr. Mohan performed an anterior cervical discectomy and fusion at
C3-4, interbody cage placement and anterior spinal instrumentation. He diagnosed right cervical
disc herniation and radiculomyelopathy.
On June 8, 2018 Dr. Mohan diagnosed status post C3-4 anterior cervical discectomy and
fusion and advised that appellant could not work for three months due to surgery.
In a report dated August 17, 2018, Dr. Mohan noted that she reported improved neck pain
after the C3-4 anterior cervical discectomy and fusion. He continued to hold appellant off work.
Dr. Mohan, in a September 7, 2018 report, noted that appellant presented with right hand
pain and he diagnosed status post cervical fusion and positive de Quervain’s tendinitis of the right
hand. Dr. Mahon returned her to work and recommended a brace for her right hand and limited
her lifting to 20 pounds.
By decision dated December 7, 2018, the hearing representative affirmed the June 22, 2018
decision.
On January 2, 2019 appellant appealed her claim to the Board. By decision dated
August 20, 2019, the Board affirmed the December 7, 2018 decision, finding that medical

3

evidence of record was insufficient to establish a recurrence of disability commencing
February 16, 2018, causally related to her accepted November 26, 2011 employment injury.5
Appellant continued to submit evidence. She was treated by Dr. Tibor Boco, a Boardcertified neurosurgeon, on July 31, 2019, for neck and shoulder pain, pain into both arms, glove
like paresthesias in the arms, and persistent weakness. He noted that appellant’s history was
significant for two anterior cervical discectomies with the initial surgery the result of a workrelated incident in 2011. Findings on examination revealed positive Spurling Maneuver, positive
Hoffman’s sign, difficulty with heel and toe walking, cervical paraspinal muscle spasm, diffuse
bilateral upper extremity weakness, diffuse glove like paresthesias in the arms bilaterally, and
increased deep tendon reflexes in the upper extremities. Dr. Boco diagnosed cervical spondylosis
with radiculopathy and cervical spondylosis with myelopathy and recommended additional
diagnostic studies. On August 20, 2019 he treated appellant in follow-up and diagnosed cervical
spondylosis with myelopathy and cervical spondylosis with radiculopathy. Dr. Boco reviewed the
computerized tomography (CT) scan of the cervical spine performed on August 5, 2019 and the
MRI scan of the cervical spine performed August 6, 2019. He related that appellant had significant
degenerative disc disease at C4-5 and a large osteophyte formation. Dr. Boco recommended
surgical correction of the pseudarthrosis, extension of the fusion from C3-7, and a laminectomy
from C3-7 to stabilize her spine. He advised that the original fusion was associated with a workrelated event and the second fusion was necessitated as a consequence of the initial surgery.
Dr. Boco opined that appellant’s current condition was causally related to the initial need for
surgery following the work injury. On October 8, 2019 he indicated that she remained
symptomatic. Dr. Boco diagnosed cervical spondylosis with radiculopathy and pseudarthrosis at
C3-4 and recommended a C3-7 posterior decompression and fusion.
On August 5, 2019 appellant underwent a CT scan of the cervical spine, which revealed
postsurgical changes at C3-4 and C5-6, anterior cervical discectomy and fusion, multilevel
degenerative changes of the cervical spine, multilevel spinal canal stenosis exacerbated by
congenital narrowing of the cervical spinal canal, C6-7 mild spinal canal neural foraminal stenosis,
C2-3 mild-to-moderate spinal canal and mild right neural foraminal stenosis, and C4-5 mild spinal
canal stenosis. Similarly, an August 6, 2019 MRI scan of the cervical spine revealed postoperative
changes of anterior plate and screw fusion from C3-6, degenerative disc, facet, uncovertebral joint
disease throughout most prominent at C6-7, and central disc protrusion at C2-3 with moderate
narrowing of the canal.
Dr. Pelinkovic treated appellant on January 13, 2020 for neck pain and right shoulder pain
radiating over her deltoid and shoulder blade. He diagnosed C6-7 moderate central stenosis, C3-4
and C5-6 fusion, and adjacent segment disease and recommended physical therapy. In a work
duty status report of even date Dr. Pelinkovic affirmatively noted that appellant was medically
unable to return to work.
By an appeal request form dated February 4, 2020, postmarked February 10, 2020, and
received by OWCP on June 9, 2020, appellant through counsel, requested reconsideration.

5

Docket No. 19-0481 (issued August 20, 2019).

4

By decision dated September 24, 2020, OWCP denied modification of the prior decision.
On December 9, 2020 appellant, through counsel, requested reconsideration.
On October 1, 2020 appellant underwent an electromyography and nerve conduction
velocity (EMG/NCV) test. An October 7, 2020 MRI scan of the thoracic spine revealed small left
paracentral disc protrusion at T5-6 and degenerative disc disease/spondylosis at C6-7. An MRI
scan of the lumbar spine of even date revealed mild developmental central narrowing of lumbar
canal and nonspecific edema in soft tissues of upper lumbar region.
On October 20, 2020 Dr. James M. Mok, a Board-certified orthopedist, advised that
appellant underwent a C3-4 and C5-6 anterior cervical fusion for treatment of a work-related
injury. He noted a pseudarthrosis of C3-4 and C5-6 and opined that this condition was directly
related to the prior surgery at C3-4 and C5-6 and should be considered related to the original work
injury.
By decision dated February 3, 2021, OWCP denied modification of its September 24, 2020
decision.
LEGAL PRECEDENT
A 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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.6 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.7
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.8
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
6

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

7

Id.

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

5

physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.9 Where no such rationale is present,
the medical evidence is of diminished probative value.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing February 16, 2018, causally related to her accepted November 26, 2011
employment injury.
By decision dated August 20, 2019, the Board affirmed OWCP’s denial of appellant’s
claim for a recurrence of disability commencing February 16, 2018, causally related to her
accepted November 26, 2011 employment injury. Findings made in prior Board decisions are res
judicata absent any further review by OWCP under section 8128 of FECA.11 The Board will
therefore not review the medical evidence addressed in the prior appeal.
Appellant subsequently submitted additional evidence including a July 31, 2019 report,
wherein Dr. Boco noted treatment for neck and shoulder pain, glove-like paresthesias in the arms,
and persistent weakness. He diagnosed cervical spondylosis with radiculopathy and cervical
spondylosis with myelopathy. On August 20, 2019 Dr. Boco repeated his diagnoses and
recommended surgery to stabilize her spine. He advised that the original fusion was associated
with a work-related event and the second fusion was necessitated as a consequence of the initial
surgery. Dr. Boco opined that appellant’s current condition was causally related to the initial need
for surgery following the work injury.
On October 8, 2019 Dr. Boco diagnosed cervical spondylosis with radiculopathy and
pseudarthrosis at C3-4 and recommended a C3-7 posterior decompression and fusion. He did not,
however, address the period of claimed recurrence or indicate that appellant was totally disabled
for any specific period. The Board has held that medical evidence that does not provide an opinion
as to whether a period of disability is due to an accepted employment-related condition is of no
probative value on the issue of causal relationship.12 Therefore, this evidence is insufficient to
meet appellant’s burden of proof.
Dr. Pelinkovic treated appellant on January 13, 2020 for neck pain and right shoulder pain
radiating over her deltoid and shoulder blade. He diagnosed C6-7 moderated central stenosis, C3-4
and C5-6 fusion and adjacent segment disease. In a work duty status report of even date
Dr. Pelinkovic affirmatively noted that appellant was medically unable to work. However, these
9

J.D., Docket No. 18-0616 (issued January 11, 2019).

10

G.G., Docket No. 18-1788 (issued March 26, 2019).

11

See M.M., 18-1366 (issued February 27, 2019); E.L., 16-0635 (issue November 7, 2016); R.L., Docket No. 151010 (issued July 21, 2015). See also A.P., Docket No. 14-1228 (issued October 15, 2014).
12
M.A., Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018.

6

reports do not contain an opinion on whether the accepted employment injuries caused disability
from employment for the claimed period. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.13 Accordingly, without a specific opinion regarding how
work factors caused a recurrence of disability, Dr. Pelinkovic’s report is insufficient to meet
appellant’s burden of proof.14
On October 20, 2020 Dr. Mok advised that appellant underwent a C3-4 and C5-6 anterior
cervical fusion for treatment of a work-related injury. He noted a pseudarthrosis of C3-4 and C5-6
and opined that this condition was directly related to the prior surgery at C3-4 and C5-6 and should
be considered related to the original work injury. However, Dr. Mok did not provide an opinion
regarding how appellant’s work factors caused a recurrence of disability. His report is therefore
insufficient to meet her burden of proof.15
As appellant has not submitted rationalized medical evidence sufficient to establish a
recurrence of disability commencing February 16, 2018 causally related to her accepted
November 26, 2011 employment injury, she has not met her burden of proof.
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 a recurrence of
disability commencing February 16, 2018, causally related to her accepted November 26, 2011
employment injury.

13

Id.

14

See M.B., Docket No. 18-1455 (issued March 11, 2019).

15

Supra note 12

7

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2021
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF THE ARMY,
TRAINING & DOCTRINE COMMAND,
Fort Knox, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1716
Issued: March 3, 2017

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 24, 2016 appellant filed a timely appeal from the April 28 and June 15, 2016
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 appellant has met her burden of proof to establish that she sustained
a back injury causally related to a March 1, 2016 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 2, 2016 appellant, then a 53-year old education and training specialist, filed a
traumatic injury claim (Form CA-1) alleging that on March 1, 2016 she suffered a lower back
injury when her chair slipped and she fell to the floor.
By letter dated March 21, 2016, OWCP informed appellant that specific evidence,
including medical evidence, was necessary to support her claim, and afforded appellant 30 days
to submit this information.
In response, appellant submitted a March 3, 2016 note, wherein Ellen McLaurin, a nurse
practitioner (NP), indicated that appellant was off work for one more week and may return to
work on March 11, 2016.
By decision dated April 28, 2016, OWCP denied appellant’s claim. It determined that
she did not submit any medical evidence that contained a diagnosis. OWCP further stated that
appellant had not submitted medical evidence establishing causal relationship between a
diagnosis and the accepted incident of her federal employment.
On May 18, 2016 appellant requested reconsideration. She submitted new evidence with
her reconsideration request.
In a March 1, 2016 report, Dr. Daniel Gordon, a Board-certified internist, interpreted an
x-ray of appellant’s lumbar spine as evincing transition vertebral elements and mild degenerative
changes within the lower lumbar spine. He further noted that phleboliths are seen within the
pelvis.
In March 1 and 3, 2016 reports, NP McLaurin listed appellant’s diagnoses as unspecified
fall, strain of the muscle fascia and tendon of the lower back, low back strain, pain in the left and
right hip, cramp and spasm. She noted appellant’s complaints and her description of the
employment incident. In a May 9, 2016 report, NP McLaurin indicated that she has been
providing medical care to appellant for three years. She noted that appellant was initially treated
for low back pain, and was last treated for this in March. NP McLaurin described appellant’s
employment incident, and noted that she received extensive treatment including x-rays of her
lumbar spine, hips and pelvis, a Torodol injection, and home pain medication. She noted that
appellant was given an orthopedic referral. NP McLaurin stated that due to her injuries,
appellant was unable to work at that time.
In a May 12, 2016 statement, appellant indicated that she was injured on the job on
March 1, 2016 when the back of her legs hit her chair, it rolled backward, and she fell onto the
floor. She explained that she remained at work until 1:00 p.m., but the pain only increased and
sitting aggravated it. Appellant noted that she went to her doctor who placed her on pain and
inflammation medication and bed rest, and that she returned to duty on March 10, 2016.
In a June 15, 2016 decision, OWCP denied modification of its prior decision. It noted
that the new evidence submitted on reconsideration did not provide a diagnosis of a medical
condition, therefore fact of injury was not established.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
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.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The opinion of the physician must be based on a complete factual and medical
background of the employee, 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 employee.7 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
OWCP accepted that appellant established that the employment incident occurred as
alleged on March 1, 2016. However, it denied her claim, finding that she failed to submit
medical evidence establishing a medical diagnosis from a physician and that the diagnosed
condition was causally related to the accepted employment incident.
The Board notes that Dr. Gordon interpreted appellant’s x-rays of her lumbar spine as
demonstrating transition vertebral element and mild degenerative changes within the lower
2

Id.

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

7

I.J., 59 ECAB 408 (2008); supra note 4.

8

James Mack, 43 ECAB 321 (1991).

3

lumbar spine. Dr. Gordon also noted that phleboliths were seen within the pelvis. This x-ray is
sufficient to show a medical diagnosis.
The Board finds, however, that appellant has not met her burden of proof to establish that
her diagnosed medical condition was causally related to the accepted employment incident.
Appellant has submitted no medical evidence establishing causal relationship. Dr. Gordon
interpreted appellant’s x-rays but he failed to address whether his employment incident caused
the conditions found on the x-ray. Therefore his opinion is of diminished probative value on the
issue of causal relationship.9 Furthermore, NP McLaurin’s opinions are of no probative value as
nurse practitioners are not considered physicians as defined under FECA.10
An award of compensation may not be based on surmise, conjecture or speculation.11 To
support a claim for compensation, the evidence should offer a medically sound explanation of
how the claimed work event caused or aggravated the claimed condition.12 No physician
provided a rationalized medical opinion explaining a causal relationship between appellant’s
accepted employment incident and a medical diagnosis. Appellant, therefore, did not meet her
burden of proof to establish an injury in the performance of duty on March 1, 2016.
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 established that she sustained a back injury
causally related to the March 1, 2016 employment incident.

9

G.M., Docket No. 14-2057 (issued May 12, 2015).

10

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2). See
also L.D., 59 ECAB 648 (2008) (an NP is not considered a physician under FECA).
11

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

12

K.H., Docket No. 15-1809 (issued January 7, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 15 and April 28, 2016 are affirmed, as modified.
Issued: March 3, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Whittier, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Donald L. Barnett, for the appellant
Office of Solicitor, for the Director

Docket No. 11-138
Issued: September 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 25, 2010 appellant, through her representative, filed a timely appeal from the
May 18, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
affirmed the determination of her constructed wage-earning capacity. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant had the capacity to earn
wages as an accounting clerk in the open labor market.
FACTUAL HISTORY
On June 15, 2002 appellant, a 32-year-old city carrier, sustained an injury in the
performance of duty when two dogs attacked her without inflicting physical injury. OWCP
1

5 U.S.C. § 8101 et seq.

accepted her claim for a single-episode anxiety reaction. Appellant returned to limited duty for
four hours a day on February 3, 2003. OWCP paid compensation for temporary total disability
on the periodic rolls.
A conflict in medical opinion arose on the extent of appellant’s disability for work. Her
clinical psychologist, Dr. William C. Pickering, reported that she continued to be partially
disabled as a result of the injury. OWCP’s referral psychiatrist, Dr. Albert Shnaider, found that
appellant’s acute stress reaction was in remission with no current injury-related factors of
disability. To resolve this conflict, OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. Irving H. Berkovitz, a Board-certified psychiatrist and clinical
professor at the UCLA School of Medicine. On October 23, 2003 Dr. Berkovitz found that
appellant could work eight hours a day, as long as the work was not outdoors where a dog could
be encountered.
On September 16, 2007 Dr. Pickering believed that appellant could work again. He
recommended that she work 20 hours per week for six months and then increase her hours to 40.
On September 24, 2007 appellant found part-time work as the assistant to the controller
for a company in Whittier, CA, the duties of which included filing, recording checks, preparing
the banking, wiring transactions and overall accounts receivable and payable for the company.
Her duties also included processing incoming mail and distributing it to correct departments,
answering telephones, assisting the billing department with invoicing and special office projects
as needed.
On June 11, 2008 Dr. Pickering released appellant to full-time work. On August 18,
2008 Dr. E. Richard Dorsey, an OWCP referral psychiatrist, agreed that appellant was capable of
working 40 hours a week. Appellant was to avoid contact with dogs and avoid above-average
pace, volume and pressure for the job classification of clerical office worker. OWCP provided
Dr. Dorsey with a description of the duties of an accounting clerk.2 It was his opinion that
appellant was mentally capable of performing such a job, which he thought probably overlapped
the duties of her current clerical office position.
Based on the medically determinable residuals of the injury, and taking into consideration
all significant preexisting impairments and pertinent nonmedical factors, an OWCP rehabilitation
counselor found that appellant was able to earn $639.20 a week as an accounting clerk. She
explained that appellant previously completed self-procured training to obtain a certificate in
accounting from an adult education facility. The rehabilitation counselor also had been

2

“The duties of an accounting clerk involve performing any combination of following calculating, posting, and
verifying duties to obtain financial data for use in maintaining accounting records: Compiles and sorts documents,
such as invoices and checks, substantiating business transactions. Verifies and posts details of business transactions,
such as funds received and disbursed, and totals accounts, using calculator or computer. Computes and records
charges, refunds, cost of lost or damaged goods, freight charges, rentals, and similar items. May type vouchers,
invoices, checks, account statements, reports, and other records, using typewriter or computer. May reconcile bank
statements. May be designated according to type of accounting performed, such as: accounts-payable clerk
(clerical); accounts-receivables clerk (clerical); bill recapitulation clerk (utilities); rent and miscellaneous remittance
clerk (insurance); tax-record clerk (utilities).”

2

employed as a part-time accounting assistant since September 2007.3 The hours and work
environment were consistent with the limitations placed by Dr. Dorsey. The mid-range pay,
$639.20 per week according to labor market surveys in May and June 2009, was appropriate for
appellant’s background and current work experience. Further, the rehabilitation counselor found
that the job was being performed in sufficient numbers so as to make it reasonably available to
appellant within her commuting area. Of eight employers contacted, five had current openings,
three hired within the last week, and one reported an average of two openings per month.
In a decision dated July 15, 2009, OWCP reduced appellant’s wage-loss compensation to
reflect her capacity to earn wages as an accounting clerk. It found that her actual earnings in
part-time work did not fairly and reasonably represent her wage-earning capacity, as she was
capable of working full time.
On May 5, 2010 Dr. Pickering noted that appellant was currently discontent with her
part-time position: “Within the past few months, they have been taking away work, giving her
work, and putting her in the stockroom to go over old files for shredding. They sometimes
distribute work to others. [She] feels that her work is of little importance, and that she is a sort of
‘excrescence’ or appendage.” Dr. Pickering stated that appellant had been crying, unhappy,
depressed and anxious. He ordered her to stay off work until her condition improved.
Dr. Pickering added that appellant had been willing to work at her current place of employment.
In a decision dated May 18, 2010, an OWCP hearing representative affirmed the
determination of appellant’s wage-earning capacity.
On appeal, appellant argues that she worked part time as a clerk, not as an accounting
clerk. Her main concern is that “they made a decision based on doctor Bedrin’s examination but
the record will show that there never was a conflict in [my] claim as required by OWCP
regulation.” Appellant also argues OWCP used an incorrect formula to reduce her payment and
used old records and never attempted to find out what her condition was. She adds that OWCP
disregarded the information presented by her doctor.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.4 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.5
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by her actual earnings, if her actual earnings fairly and reasonably
represent her wage-earning capacity. If the actual earnings of the employee do not fairly and
3

Although appellant was employed as the assistant to the controller, or chief accounting officer, the title of her
position does not appear to have been accounting assistant.
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

3

reasonably represent her wage-earning capacity or if the employee has no actual earnings, her
wage-earning capacity as appears reasonable under the circumstances is determined with due
regard to the nature of her injury, the degree of physical impairment, her usual employment, her
age, her qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect her wage-earning capacity in her disabled condition.6
When OWCP makes a medical determination of partial disability and of the specific
work restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist
for selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles
or otherwise available in the open labor market, that fits the employee’s capabilities in light of
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.7
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8
ANALYSIS
In 2003 an impartial medical specialist, Dr. Berkovitz, found that appellant could work
eight hours a day, as long as the work was not outdoors where a dog could be encountered.9 In
2007 the attending psychologist, Dr. Pickering, recommended that appellant work 20 hours per
week for six months and then increase her hours to 40, or full time. Appellant began part-time
work as an assistant to a controller in Whittier, CA. In 2008 Dr. Pickering released her to fulltime work. Shortly thereafter, Dr. Dorsey, an OWCP referral psychiatrist, agreed that appellant
was capable of working 40 hours a week with limitations.
The clear weight of the medical evidence established that appellant was not totally
disabled for work as a result of her June 15, 2002 employment injury. Appellant was working
part time. The wage-earning capacity of an employee is determined by her actual earnings, but
only if her actual earnings fairly and reasonably represent her wage-earning capacity. OWCP
found that appellant’s wages in a part-time position did not fairly and reasonably represent her
wage-earning capacity, as she was capable of working a full 40 hours per week. The medical
evidence supports OWCP’s finding.

6

5 U.S.C. § 8115(a).

7

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

8

Harold S. McGough, 36 ECAB 332 (1984).

9

See 5 U.S.C. § 8123(a) (if there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination).

4

To determine appellant’s entitlement to compensation for partial disability, OWCP
properly referred her to a wage-earning capacity specialist for the selection of a position listed in
the Department of Labor’s Dictionary of Occupational Titles that fit her capabilities in light of
her physical limitations, education, age and prior experience. The rehabilitation counselor found
that appellant could work as an accounting clerk. She was vocationally qualified for the
position: she had previously completed training in that field, and she had been working as a
controller’s assistant since September 2007. The hours and work environment were consistent
with her limitations. Dr. Dorsey found that appellant was mentally capable of performing the
specific duties of an accounting clerk, which, he observed, probably overlapped the duties of her
current clerical position. It was a position that avoided contact with dogs, limited her work to 40
hours a week, and did not indicate an above-average pace, volume or pressure for the job
classification of a clerical office worker.
Based on labor market surveys, the rehabilitation counselor found that the midrange pay
of $639.20 a week was appropriate for appellant’s background and current work experience. She
determined that the position was being performed in sufficient numbers so as to make it
reasonably available to appellant within her commuting area.
The Board finds that OWCP properly determined that appellant’s wage-earning capacity
as an accounting clerk appears reasonable under the circumstances. OWCP gave due regard to
such statutory factors as the nature of her injury, her usual employment, her qualifications for
other employment and the availability of suitable employment and OWCP properly compared
the prevailing wage rate of the selected position with the current pay rate of the position
appellant held on the date of injury, in accordance with the principles set forth in Albert C.
Shadrick. The Board has reviewed these calculations and finds them to be correct.
The case of T.O.,10 is similar. After his employment injury, the employee returned to
work as a part-time file clerk. OWCP determined, as it did here, that his actual earnings did not
fairly and reasonably represent his wage-earning capacity because the medical evidence
established that he was capable of full-time work. It therefore reduced his compensation for
wage loss to reflect his capacity to earn wages in the selected full-time position of general clerk,
which the Board found proper under the law and the facts of the case.
The Board finds that OWCP has met its burden to justify the reduction of appellant’s
compensation for wage loss. The Board will affirm OWCP’s May 18, 2010 decision.
On appeal, appellant asserts that the title of her part-time position was not accounting
assistant. The title of the position is not determinative; the rehabilitation counselor understood
the nature of the position and the essential duties that appellant performed.
Appellant’s main concern is that OWCP based its decision on an examination by a
Dr. Bedrin. She states there never was a conflict in her case. The record shows that a conflict in
medical opinion did arise and that OWCP referred appellant to Dr. Berkovitz to resolve it.
Dr. Berkovitz was a Board-certified psychiatrist and clinical professor at the UCLA School of
Medicine. Moreover, OWCP did not rely on any one doctor’s examination when it determined
10

58 ECAB 377 (2007).

5

that appellant was no longer totally disabled for work as a result of her accepted employment
injury. Dr. Berkovitz, Dr. Pickering and Dr. Dorsey all found that she could work 40 hours a
week with limitations.
Appellant argues that OWCP used an incorrect formula to reduce her payment, but she
did not explain. OWCP followed standard procedure and used the same formula it uses in every
determination of wage-earning capacity. As noted, the Board finds the calculations to be correct.
As for the allegation that OWCP used old records and never attempted to find out what
her condition was, appellant again did not fully explain her contention. On May 5, 2010 more
than eight months after OWCP determined her capacity to earn wages as an accounting clerk,
Dr. Pickering noted that appellant had become dissatisfied with her part-time job. Appellant felt
that her work was of little importance. This recent dissatisfaction had no bearing on her capacity
to earn wages elsewhere in the open labor market. Regardless of what appellant’s current
employer had her doing, she still had the capacity to work in the accounting field as a clerk.
That did not change. Dr. Pickering took appellant off work temporarily because of complaints
with her current employer, but he did not report that the June 15, 2002 incident had now, eight
years later, rendered her totally disabled for all work.11 The Board finds that this most recent
report from Dr. Pickering on appellant’s current condition had no bearing on OWCP’s finding
that she was capable of earning full-time wages as an accounting clerk in the open labor market.
Appellant may request modification of OWCP’s July 15, 2009 wage-earning capacity
determination, supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that appellant had the capacity to earn
wages as an accounting clerk in the open labor market.

11

Compensation for loss of wage-earning capacity is based upon loss of the capacity to earn, not on actual wages
lost. Roy Matthew Lyon, 27 ECAB 186 (1975).

6

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1748
Issued: February 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 25, 2006 appellant filed a timely appeal from the July 10, 2006 merit decision of
the Office of Workers’ Compensation Programs finding that he received an overpayment in the
amount of $22,075.75, for which he was at fault. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to review this decision.
ISSUES
The issues are: (1) whether an overpayment of $22,075.75 was created during the period
November 3, 2004 through May 14, 2005; and (2) whether the Office properly determined that
appellant was at fault in creating the overpayment, thereby precluding waiver.
FACTUAL HISTORY
On March 10, 2003 appellant, then a 29-year-old special agent, filed a traumatic injury
claim alleging that on February 28, 2003 he sustained an injury to his lower back while engaged
in exercise drills at the gym of the employing establishment and was thrown by a coworker. On
June 29, 2003 the Office accepted appellant’s claim for lumbar strain and appropriate benefits

were paid. Appellant’s compensation benefits were calculated as $840.53 per week. By letter
dated January 31, 2006, the Office also accepted lumbosacral spondylosis.
By letter dated March 14, 2006, the employing establishment informed the Office that
appellant had obtained other employment. Appellant’s private sector employment had wages
exceeding the position he held at the employing establishment.1 By letter dated March 20, 2006,
he indicated that he was currently working as a manger in infrastructure support at a salary of
$90,000.00 per year. When appellant started with this company in November 2004 he was
earning $80,000.00 per year as a senior software engineer.
On April 13, 2006 the Office issued a preliminary determination that appellant received
an overpayment in the amount of $22,075.75, because he continued to receive compensation
payments for the period November 3, 2004 through May 14, 2005 after he started work in the
private sector. On May 10, 2006 appellant requested that a decision be made on the written
evidence. In an accompanying letter he argued that the overpayment should be waived as he was
without fault in the creation of the overpayment.
By decision dated July 10, 2006, the Office finalized that an overpayment in the amount
of $22,075.75 was created. It found that appellant was at fault in the creation of the overpayment
and that he was not entitled to waiver.
LEGAL PRECEDENT
Section 8129(a) of the Federal Employees’ Compensation Act provides that an employee
who is receiving compensation for an employment injury may not receive wages for the same
period.2
In determining matters concerning an employee’s receipt of compensation, the Office is
required by statute and regulation to make findings of fact.3 Office procedure further specifies
that a final decision of the Office must include findings of fact and provide clear reasoning which
allows the claimant to understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.4 These requirements are supported by Board precedent.5

1

The employing establishment indicated that the current wages for the position appellant held when injured was
$45,568.00 per year.
2

5 U.S.C. § 8129(a).

3

5 U.S.C. § 8124(a) provides: The [Office] shall determine and make a finding of fact and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the Office
shall contain findings of fact and a statement of reasons.
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

5

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

2

ANALYSIS
In order for the Board to properly review the overpayment decision on appeal the Office
must make appropriate findings based on the evidence of record. The Office determined that an
overpayment of $22,075.75 was created because appellant received compensation from a new
employer from November 3, 2004 through May 14, 2005 while he continued to receive
compensation payments under the Act. In order to confirm the continuing compensation
payments, the record should establish the specific payments that were made, the date issued and
the compensation period covered by the specific payments. The Board finds that the record is
devoid of any evidence that compensation was paid for the period and in what amount.
Under these circumstances, the Board finds that the Office’s decision does not include
findings of fact nor provide clear reasoning such that appellant might understand the precise
defect of the claim and the kind of evidence which would tend to overcome it.6 Therefore, the
case will be remanded to the Office for a more detailed explanation regarding the basis for its
determinations regarding the fact and amount of the alleged overpayment. Given that the case is
not in posture for decision regarding the fact and amount of the overpayment, it is premature for
the Board to consider the second issue of the present case, i.e., whether the Office properly
denied appellant’s request for waiver of the overpayment. After the Office has made a reasoned
determination regarding the fact and amount of overpayment, it should then make a
determination on appellant’s waiver request under the relevant standards of the Act. After such
development it deems necessary, the Office should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received a $22,075.75 overpayment of compensation for the period November 3, 2004 through
May 14, 2005 and that the case shall be remanded to the Office for further development
regarding this matter. Given the disposition regarding the fact and amount of the overpayment,
the Board finds that it is premature to consider whether the Office properly determined that
appellant was at fault in the creation of the overpayment thereby precluding waiver of the
recovery.

6

See supra note 4 and accompanying text.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 10, 2006 is set aside and the case is remanded for further
proceedings consistent with this decision.
Issued: February 16, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________
Appearances:
Leslie Nitsch, for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1242
Issued: March 17, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant sought an appeal from a purported July 14, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1242.2
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 3
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal. 4
1

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

This case has previously been before the Board. Docket No. 14-557 (issued April 6, 2015).

3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
4

The Board notes that the case record does not contain a final adverse decision of OWCP
dated July 14, 2021. The case record does contain a letter from OWCP dated July 14, 2021 to
appellant; however, it merely apprised appellant of the appeal rights accompanying the previously
issued decisions and that no further action would be taken until he specified w hat avenue of appeal
he wished to pursue..5 The most recent final adverse decision of OWCP was dated August 30,
2017, more than 180 days before appellant’s current August 17, 2021 appeal and is not subject to
review by this Board.6 As there is no final adverse decision of OWCP over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1242 must
be dismissed. 7 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1242 is dismissed.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
6

See supra note 4.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
7

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Somerville, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Susan B. Conrad, for the appellant
Office of Solicitor, for the Director

Docket No. 11-647
Issued: February 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2011 appellant, through her representative, filed a timely appeal of the
September 20, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before OWCP at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, appellant’s representative contends that appellant was overworked due to a
staff shortage and time limitations for conducting interviews with claimants.
FACTUAL HISTORY
On July 31, 2009 appellant, then a 51-year-old claims representative, filed a traumatic
injury claim alleging that on July 22, 2009 she sustained head and cervical injuries when she was
given a formal reprimand by Glenn Romero, a supervisor. While talking on the telephone to an
intake worker in the Employee Assistance Program (EAP) regarding the July 22, 2009 incident,
she became so nervous that she had an asthma or panic attack. Appellant fainted and fell down
hitting her head.
A July 22, 2009 hospital emergency room report which contained an illegible signature
advised that appellant had a cervical strain and an anxiety reaction.
In reports dated July 30 through August 18, 2009, Dr. Robert D. Davison, a chiropractor,
addressed the treatment of appellant’s cervical and thoracic sprain/strain. On August 18, 2009 he
released her to return to full activity with no restrictions or expectations of residuals.
In an August 21, 2009 report, Dr. Virginia H. Palazzo, an attending Board-certified
internist, advised that appellant should be placed on medical leave due to work-related stress.
She was unable to determine when appellant could return to work.
By letter dated September 25, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence.
Also, on September 25, 2009 OWCP requested that the employing establishment respond to
appellant’s allegations and provide information regarding her work activities and job description.
In a September 28, 2009 narrative statement, appellant alleged that her stress and
headaches were caused by working overtime due to a staff shortage, heavy workload of cases
and case processing deadlines for one and one-half years. She also received a formal written
reprimand for being rude.
In an October 9, 2009 letter, Mr. Romero contended that appellant informed an
emergency medical technician (EMT) called to the employing establishment on July 22, 2009
that she did not hit or injure any part of her body when she fell. Appellant refused to be
transported by stretcher to the ambulance. She walked out without assistance. Mr. Romero
stated that her claims representative position was challenging, but no more so than any other
public service position. Overtime was not mandatory. Appellant’s assigned job duties did not
vary from those described in her job description. The employing establishment had adequate
staff at the time of her injury. Appellant was generally able to perform her required work duties
as expected by management. She had conduct problems which led to a formal reprimand on
July 22, 2009.
A July 23, 2009 memorandum contained a reprimand from Mr. Romero who stated that
on July 10, 2009 appellant displayed rude, discourteous and disrespectful behavior towards
management when her request for two weeks of annual leave from July 27 through August 7,
2009 and her alternate request for advance leave to cover her absence during this period were
2

denied. Mr. Romero stated that as of July 10, 2009 she only had 10.5 hours of annual leave and
she would not be able to accumulate enough leave to cover the requested time off work by the
start of the two-week period.
By letter dated October 15, 2009, OWCP advised appellant that her traumatic injury
claim was being treated as an occupational disease claim.
In a January 27, 2010 decision, OWCP denied appellant’s claim. Regarding her
emotional claim, it found that the factual evidence was insufficient to establish a compensable
factor of her employment. OWCP also found that the medical evidence was insufficient to
establish that she sustained physical injuries causally related to her employment.
On January 29, 2010 appellant requested an oral hearing.
In a June 3, 2009 note, appellant stated that she was off work from May 20 to 22, 2009
due to a respiratory virus and flu. In a June 18, 2009 e-mail, she denied displaying rude behavior
when her request for advance leave was denied by management. Appellant contended that
management was rude. She further contended that its requests for medical documentation were
unreasonable as she had already submitted a letter from her physician.
Appellant’s applications for annual leave for the period July 27 to 31 and August 3 to 7,
2009 were denied on July 13, 2009 by Mr. Romero who stated that she did not have sufficient
leave to cover her request.
E-mails dated July 10, 2009 to February 9, 2010 between appellant, Susan Conrad, a
coworker, Susan Barscherer, an operations manager and Charles Strigler, a district manager,
indicated that appellant’s request for advanced sick leave was denied. On July 28, 2009
appellant filed a grievance with the Equal Employment Opportunity (EEO) Commission against
management for its denial of her leave requests and issuance of reprimand memorandum.
In a January 13, 2010 e-mail, appellant advised Ms. Conrad that she was unable to keep
up with the workload and pace in her office. Mr. Romero never responded to her request for
relief. In a January 14, 2010 e-mail, appellant advised Ms. Conrad that Lenny Butler, an
employing establishment employee, told her that she may be fired.
Appellant submitted an affidavit dated February 17, 2009 on behalf of Ms. Conrad who
filed an emotional condition claim alleging harassment by the employing establishment.
A mediator’s March 15, 2010 resolution of appellant’s grievance provided that the
employing establishment would offer her an early-out retirement effective September 30, 2009
and would remove the July 22, 2009 letter of reprimand from her personnel file. The employing
establishment would not impede the processing of appellant’s appeals filed with the Office of
Personnel Management, the employing establishment and OWCP regarding her disability claims.
Appellant would not seek future employment at the employing establishment. She would contact
the human resource office for help with completing her retirement paperwork and withdraw her
grievance regarding the above issues.

3

In a May 26, 2010 narrative statement, Thomas Eng, an employee, related that on the last
day appellant was in the office, he heard someone who appeared to be in distress, crying out in a
loud hoarse voice. He could detect labored breathing and anguish in the person’s voice as the
person denied an accusation of wrongdoing and could not breathe. Mr. Eng next discovered
appellant lying on the floor in her cubicle. Appellant was being comforted by coworkers and
waiting for an EMT to arrive. Mr. Eng stated that, after receiving medical treatment, appellant
was allowed to go home. He stated that she always conducted herself in a professional manner
with coworkers, management and claimants. Appellant was also always available to assist him
with complex cases. She served the public to the best of her ability, was always courteous and
showed compassion.
In a July 15, 2005 narrative statement, Kathy Houba-Kane, an employee, stated that she
was overworked. Unlike other employing establishment offices, the employees in her office had
to handle a large volume of interviews which affected the quality of their work and resulted in
increased complaints from claimants.
EEO documents which included decisions dated August 7 and September 27, 2006 and
an article addressed its award and enforcement of its finding that an employee was entitled to
compensatory damages plus costs on the grounds that the employing establishment discriminated
against her on the basis of her race, national origin and color and in reprisal for protected EEO
activity.
In a February 18, 2009 e-mail, Mr. Strigler, a district manager, discussed the mixed
results of the implementation of a new interviewing system. He thanked claims representatives
who had lived up to management’s expectations and doing their part to make the system work.
Mr. Strigler noted that some claims representatives were not taking their fair share of interviews,
but were waiting for easy interviews while other representatives selected complex cases. He also
noted that some representatives were taking inordinate amounts of time to accept interviews, not
going to their designated location in the morning and waiting for other representatives to finish
their interviews to go to lunch/break together. Mr. Strigler encouraged representatives to take
responsibility for their actions and stated that management expected every staff member to
perform their best and deliver the type of service deserved by claimants.
In a September 20, 2010 decision, an OWCP hearing representative affirmed the
January 27, 2010 decision. He found that appellant did not sustain an emotional condition in the
performance of duty as the evidence did not establish a compensable factor of her employment.
The hearing representative further found that she did not sustain any physical injury in the
performance of duty. The evidence established that the fall on July 22, 2009 and any resulting
injury was idiopathic in nature.3

3

The Board notes that on appeal, appellant’s representative has not specifically challenged OWCP’s hearing
representative’s finding that appellant did not sustain a physical injury in the performance of duty, but rather an
idiopathic fall on July 22, 2009. Accordingly, the Board will not address this particular issue on appeal.

4

LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.4 This burden includes the submission
of detailed description of the employment factors or conditions which appellant believes caused
or adversely affected the condition or conditions for which compensation is claimed.5 Appellant
must also submit rationalized medical opinion evidence establishing a causal relationship
between the claimed condition and the established, compensable work factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.7 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 or her frustration from not being permitted to work in a particular environment or
to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA9 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.10
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
4

Pamela R. Rice, 38 ECAB 838 (1987).

5

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

6

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

7

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

8

Gregorio E. Conde, 52 ECAB 410 (2001).

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
10

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

11

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

5

providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.13
ANALYSIS
Although appellant initially filed a traumatic injury claim for an incident at work on
July 22, 2009, she subsequently alleged that she sustained an emotional condition as a result of
several work incidents and conditions leading up to the July 22, 2009 incident. OWCP treated
her traumatic injury as an occupational disease claim and denied her emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of FECA.
Appellant has alleged that she was overworked as she had to work overtime due to a staff
shortage, heavy workload of cases and case processing deadlines. She was unable to keep up
with her workload and the pace of her office. Appellant feared being fired. She stated that
Mr. Romero did not respond to her request for relief. The Board has held that where the
disability results from an employee’s emotional reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability can come within
FECA.14 Appellant did not submit sufficient evidence to substantiate her allegations.
Ms. Houba-Kane stated that she was overworked due to handling a large volume of interviews
which affected the quality of her work and resulted in increased complaints from claimants but
there were no specific incidents noted and no corroboration was provided regarding appellant’s
allegation of overwork. She did not specifically address appellant’s assigned duties or
allegations. Mr. Romero stated that appellant’s claims representative position was challenging,
but no more than any other public service position. He further stated that her assigned duties did
not vary from the duties contained in her job description. Mr. Romero related that overtime was
not mandatory. He stated that appellant was generally able to perform her required work duties
as expected by management. Mr. Romero denied the existence of a staff shortage. Mr. Strigler
stated that claims representatives were performing well under the new interviewing system. He
also stated that the performance of other claims representatives under the new system was not
acceptable to management. Mr. Strigler related management’s expectations that claims
representatives should be responsible for their actions and provide good service to claimants.
The Board finds that appellant has failed to establish a compensable employment factor based on
her regular or specially assigned duties.

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

14

Cutler, supra note 7.

6

Appellant further alleged that management denied her request for two weeks of annual
leave from July 27 to 31 and August 3 to 7, 2009 and alternate request for advance leave to cover
her absence during the two-week period. She stated that management’s request for medical
documentation was unreasonable since she had already submitted a physician’s report in support
of her requests. Appellant alleged that Mr. Romero improperly issued a reprimand memorandum
to her on July 22, 2009 for the behavior she displayed on July 10, 2009 in response to his denial
of her leave requests. She denied responding to him in a rude manner. Appellant filed
grievances for the above-stated actions.
Appellant’s allegations regarding the denial of leave,15 request for medical
documentation,16 issuance of a disciplinary memorandum17 and the filing of a grievance18 are
administrative matters and not compensable absent a showing of error or abuse on the part of the
employing establishment. Although she has alleged error by management, she did not submit
any probative evidence establishing error or abuse regarding the above-noted administrative
matters. While appellant submitted a mediator’s March 15, 2010 resolution on the EEO
grievance she filed against the employing establishment for denying her leave requests and
issuing a reprimand to her, there was no final EEO decision finding that the employing
establishment committed error or abuse. The Board notes that the decision to remove the
memorandum of reprimand from appellant’s personnel file does not establish evidence of error.
The mere fact that personnel actions are later modified or rescinded does not in and of itself,
establish error or abuse.19 The affidavit on behalf of Ms. Conrad’s emotional condition claim
which alleged harassment by the employing establishment is self-serving and does not address
appellant’s allegations of error or abuse by management in handling the above-noted
administrative and personnel matters nor is it relevant to this claim. Mr. Eng stated that he heard
appellant crying out in distress on July 22, 2009 about being falsely accused of wrongdoing and
her subsequent inability to breathe. However, he did not state that he witnessed the July 10,
2009 incident involving appellant and Mr. Romero. Mr. Romero stated that appellant’s requests
for annual leave and advance leave were denied because she had not accumulated sufficient
leave to cover the requested time off work. He related that, as of July 10, 2009, she only had
10.5 hours of annual leave. Mr. Romero also related that appellant would not be able to
accumulate enough leave by the start of the two-week period. The Board finds, therefore, that
the evidence submitted by appellant is insufficient to establish error or abuse by the employing
establishment in handling the above administrative and personnel matters. For the reasons
stated, the Board finds that appellant has failed to establish a compensable employment factor.

15

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

16

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

17

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
18

Michael A. Salvato, 53 ECAB 666, 668 (2002).

19

Michael Thomas Plante, 44 ECAB 510, 516 (1993).

7

Since appellant has not established a compensable work factor, the Board will not address
the medical evidence.20
On appeal, appellant’s representative contended that appellant was overworked due to a
staff shortage and time limitations for conducting interviews with claimants. For reasons noted,
the Board finds that appellant did not establish a compensable factor of her employment.
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 failed to establish that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

Karen K. Levene, 54 ECAB 671 (2003).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0714
Issued: July 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2015 appellant filed a timely appeal from a December 4, 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 case.
ISSUE
The issue is whether appellant established that he was entitled to continuation of pay.
FACTUAL HISTORY
On October 21, 2014 appellant, then a 53-year-old immigration enforcement agent, filed
a traumatic injury claim alleging that he sustained a neck injury in the performance of duty on
September 16, 2014. He claimed that a supervisor snuck up behind him and placed him in a
1

5 U.S.C. § 8101 et seq.

chokehold while he was sitting at his computer. Appellant’s supervisor stated that notice of the
claimed injury was received on October 21, 2014. He did not indicate that appellant stopped
work.
In an October 24, 2014 report, Dr. Mark Selecky, a Board-certified orthopedic surgeon,
advised that appellant was one month post-traumatic cervical sprain/strain with possible
aggravation of degenerative disc disease and preexisting degenerative changes.
He
recommended physical therapy and advised that appellant could perform regular duties as
tolerated.2
By decision dated December 3, 2014, OWCP accepted the claim for neck sprain. An
attachment to the decision informed appellant how to seek medical authorization. It also advised
him how to claim wage-loss compensation and how to initiate a leave buyback request with his
employing establishment.
By decision dated December 4, 2014, OWCP denied appellant’s request for continuation
of pay because his injury was not reported within 30 days following the injury. The decision
stated that it only concerned entitlement to continuation of pay and did not affect his entitlement
to other compensation benefits. OWCP informed appellant of the process for claiming wage-loss
compensation.
LEGAL PRECEDENT
Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his or her immediate supervisor on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of
injury must be given as specified in section 8119. The latter section provides in part that notice
of injury shall be given in writing within 30 days after the injury.4 Claims that are timely under
section 8122 are not necessarily timely under section 8118(a). FECA authorizes continuation of
pay for an employee who has filed a valid claim for traumatic injury.5 Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.
When an injured employee makes no written claim for a period of wage loss within 30 days, he
or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.6
Section 10.205 of OWCP regulations provide in pertinent part that to be eligible for
continuation of pay, a person must: (1) have a traumatic injury which is job related and the
2

Dr. Selecky also noted that appellant was being treated under a separate claim for an injury to his left hand and
to his lumbar spine that occurred around July 2013. The Board notes that this other claim is not before the Board on
the present appeal.
3

5 U.S.C. § 8118.

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

6

See P.R., Docket No. 08-2239 (issued June 2, 2009). See also W.W., 59 ECAB 533 (2008).

2

cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.7
ANALYSIS
On October 21, 2014 appellant filed a claim for a September 16, 2014 traumatic injury.
Because he did not file his claim within 30 days from the date of injury, the time specified in
section 8118(a) and 8122(a)(2) of FECA, the Board finds that he is not entitled to continuation of
pay. The record contains no evidence of an earlier written claim for a traumatic injury.
On appeal appellant argues that he submitted sufficient evidence for acceptance of his
claim. The Board notes that OWCP did accept his claim for neck sprain. However, OWCP
denied continuation of pay because appellant did not submit written notice of injury until
October 21, 2014. This was more than 30 days after the September 16, 2014 employment injury.
OWCP December 4, 2014 decision pertains only to continuation of pay and does not preclude
appellant from claiming compensation for wage loss or from seeking medical benefits for his
accepted condition.
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 properly determined that appellant was not entitled to
continuation of pay.

7

20 C.F.R. § 10.205(a).

3

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2015
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0124
Issued: May 14, 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 October 23, 2017 appellant, through counsel, filed a timely appeal from an April 24,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed since the last merit decision dated April 14, 2016, to the filing of this

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s April 24, 2017 decision was Saturday, October 21, 2017.
Because the last day of the 180-day filing period fell on a Saturday, the filing period is extended until the close of the
next business day, which was Monday, October 23, 2017. Accordingly, the appeal is timely filed pursuant to 20
C.F.R. § 501.3(f)(2).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that the medical evidence of record establishes appellant’s
entitlement to benefits.
FACTUAL HISTORY
On May 8, 2015 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, she injured her head and neck when she tripped over a pallet jack
and fell backwards. She stopped work on May 9, 2015.
In a May 8, 2015 attending physician form (Form CA-20), and a duty status report (Form
CA-17) Dr. Jennifer Ng, an attending physician, diagnosed a soft tissue injury which she attributed
to appellant’s tripping over work equipment that day.
The record contains a Form CA-17 dated May 15, 2015 diagnosing a soft tissue injury due
to a May 8, 2015 work injury. The health care provider’s signature on the form is illegible.
In a May 8, 2015 authorization for examination and/or treatment (Form CA-16), T.D., an
employing establishment official, authorized treatment for the May 8, 2015 incident.
On May 12, 2015 Dr. Ng requested that appellant be excused from work until May 18,
2015 when she could return to work with restrictions.
In a June 10, 2015 development letter, OWCP advised appellant that the evidence of record
was insufficient to support her claim. It noted that she had not submitted medical evidence
containing a firm diagnosis causally related to the alleged incident. Appellant was afforded 30
days to submit additional evidence, including a narrative report from her treating physician.
By decision dated July 30, 2015, OWCP denied appellant’s claim. It found that she had
not submitted medical evidence containing a diagnosis causally related to the accepted
employment incident.
OWCP subsequently received a July 28, 2015 Form CA-17 from Dr. Ng diagnosing
degenerative disc disease, noting a May 7, 2015 date of injury and providing work restrictions.
On August 8, 2015 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on March 10, 2016. Dr. Ng, in an October 5, 2015 letter, advised
that appellant was seen that day for leg weakness and requested that she be excused from work
until October 10, 2015.
3

5 U.S.C. § 8101 et seq.

2

In an October 15, 2015 letter, Dr. Stephen N. Scelsa, an attending Board-certified
neurologist and clinical neurophysiologist, advised that he had been treating appellant for
radiculopathy and polyneuropathy. He further advised that she could return to work on
October 19, 2015 with lifting restrictions.
By report dated November 2, 2015, Dr. Eugene M. Bulkin, an examining Board-certified
physiatrist, related that appellant was disabled from work until November 23, 2015 when she could
return to work with restrictions. He noted that she had been under his care for an orthopedic
problem.
On November 25, 2015 OWCP received a June 26, 2015 letter from Dr. Bulkin requesting
that appellant be excused from work from June 17 to 26, 2015 due to a medical condition.
By decision dated April 14, 2016, OWCP’s hearing representative affirmed the July 30,
2015 decision denying appellant’s claim. The hearing representative found that the medical
evidence of record did not establish causal relationship between the diagnosed medical condition
and the accepted employment incident.
In a letter dated and received on April 13, 2017, appellant, through counsel, requested
reconsideration and advised that medical evidence would be submitted. However, no additional
evidence was received.
By decision dated April 24, 2017, OWCP denied reconsideration of the merits of
appellant’s claim. It found that she had not shown that she met the requirements of 5 U.S.C.
§ 8128(a) sufficient to warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.7 If the request is timely but fails to meet at least one
4

5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

3

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim.
Appellant alleged that she sustained head and neck injuries as a result of an accepted
May 8, 2015 employment incident. By decision dated July 30, 2015, OWCP denied her traumatic
injury claim finding that no medical evidence containing a firm diagnosis due to the accepted
May 8, 2015 employment injury had been submitted. In an April 14, 2016 decision, an OWCP
hearing representative affirmed the denial of appellant’s claim. The hearing representative found
that the medical evidence of record did not establish that the diagnosed medical conditions were
causally related to the accepted employment incident.
On April 13, 2017 appellant, through counsel, requested reconsideration. By decision
dated April 24, 2017, OWCP denied further merit review of her case because no evidence had
been submitted on reconsideration.
In his April 13, 2017 letter, counsel merely stated that he was requesting reconsideration
on behalf of appellant. There is no evidence of record which elaborates on the basis of the request
or argues why it should be granted. Accordingly, the Board finds that the April 13, 2017 request
for reconsideration neither alleged, nor demonstrated that OWCP erroneously applied or
interpreted a specific point of law. As such appellant has not shown that OWCP erroneously
applied or interpreted a specific point of law. Additionally, the Board finds that counsel did not
advance a relevant legal argument not previously considered by OWCP. Consequently, appellant
is not entitled to further review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(3).
Counsel noted in the reconsideration request that additional medical evidence would be
submitted. OWCP, however, did not receive additional evidence prior to its April 24, 2017
decision. The Board finds, therefore, that counsel did not submit any relevant and pertinent new
evidence in support of appellant’s request for reconsideration.
As appellant failed to meet the criteria enumerated under 20 C.F.R. § 10.606(b)(3), the
Board finds OWCP properly denied further merit review of her traumatic injury claim.9
On appeal counsel contends that medical evidence of record established fact of injury and
causal relationship. As noted above, however, the only issue before the Board is whether OWCP
properly denied further merit review of appellant’s case in its April 24, 2017 decision. Counsel
offered a new argument on appeal. As the Board lacks jurisdiction to review the underlying merits
8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9
See A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010) (when
an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(3), OWCP will deny the application for reconsideration without reopening the case for a review of the
merits); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

4

of appellant’s claim, it cannot review counsel’s arguments regarding appellant’s traumatic injury
claim on appeal.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of the claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 24, 2017 is affirmed.
Issued: May 14, 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

10

The Board notes that a Form CA-16 authorization for examination and/or treatment was issued by the employing
establishment on May 8, 2015. When the employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

5