United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, MID-PACIFIC REGION,
Sacramento, CA, Employer
__________________________________________

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

Docket No. 16-0193
Issued: July 23, 2018

Case Submitted on the Record

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

JURISDICTION
On November 12, 2015 appellant filed a timely appeal from an October 29, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an emotional condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 9, 2012 appellant, then a 49-year-old program analyst,2 filed an occupational
disease claim (Form CA-2), alleging that on November 13, 2008 she developed an emotional
condition due to factors of her federal employment, including two physical assaults that occurred
in November 2008 and other job stress.3 Specifically, she reported that she was struck by S.H.,
acting assistant regional director for support services, on November 13, 2008. Appellant
thereafter became anxious, paranoid, stressed, fearful, and depressed. She asserted that M.D., a
programs secretary, committed a second assault on November 19, 2008, which worsened her
November 13, 2008 conditions. Appellant was diagnosed with major depression, post-traumatic
stress disorder, anxiety disorder, anhedonia, and diverticulitis. She reported that she first became
aware of her claimed conditions on November 13, 2008 and realized their relation to her federal
employment on October 26, 2009.
In a narrative statement accompanying her Form CA-2, appellant alleged that she was
struck by S.H. on November 13, 2008, causing bruising on her right upper arm. She reported
that S.H. came to her work space and told her to move to an alternate work space. Appellant
alleged that, while waiting with S.H. to sign out her new office key, S.H. hit her on her upper
right arm, which left bruising.
She also alleged that M.D. then shoved her on
November 19, 2008 while at her workstation. Finally, appellant further alleged that employing
establishment officials and coworkers continued to harass her until she left the employing
establishment in February 2009.
The employing establishment conducted an administrative investigation in relation to the
alleged incidents. These documents noted that appellant was first assigned as a supervisory
contract specialist on October 25, 2007. On November 6, 2008 she was reassigned as a staff
specialist as a result of her failure to satisfactorily complete her probationary period for the
managerial position. The investigation found that appellant had not established a hostile
workplace through the November 13 and 19, 2008 events. While appellant had alleged that S.H.
violated her personal space and intentionally struck her on November 13, 2008, the investigation
revealed that appellant and S.H. came within one foot of each other during an office key
transaction on their own volition. The employing establishment found that this was not
unreasonable. S.H. and four witnesses disputed appellant’s allegations of deliberate contact,
contending that any contact would have been minor, incidental, or accidental. As appellant’s
allegations of assault remained unsubstantiated, the investigation was closed. With regard to the
November 19, 2008 incident involving allegations of shoving by M.D., the investigation found
that the parties provided contradictory accounts and that there were no witnesses to the events.
The employing establishment further noted that the witness capable of hearing the conversation
reported only a civil conversation. Also, appellant, the witnesses, and M.D. all agreed that M.D.
was friendly and business-like before, during and after the alleged incident. The employing
2
Appellant began work as a program analyst with the Department of Defense, Defense Logistics Agency in
Virginia on November 10, 2011. The facts of this case pertain to her work for the employing establishment in
California before her move/promotion.
3
Appellant has another emotional condition claim, File No. xxxxxx030, that is not before the Board in the present
appeal. An appeal involving that claim is being adjudicated separately under Docket No. 16-0194.

2

establishment concluded that, “The mannerisms and behaviors demonstrated during the day of
the alleged incident by M.D. are not consistent with an assault allegation.” As it was unable to
substantiate appellant’s claims of assault, it closed the case.
In a March 13, 2012 development letter, OWCP informed appellant that additional
evidence was required to establish she actually experienced the employment factors alleged. It
afforded appellant 30 days for response. A similar letter, also dated March 13, 2012, was sent to
the employing establishment, requesting additional evidence.
In response, appellant submitted a March 7, 2012 note from Dr. Timothy M. Sitts, a
psychiatrist, diagnosing stress, depression, and anxiety due to a “difficult situation at work.”
Appellant also provided a copy of an Equal Employment Opportunity (EEO) complaint,
which noted that she was first hired by the employing establishment on November 11, 2007 and
that she reported to her new duty station on November 14, 2007. She alleged that supervisor
K.T. had created an intimidating and hostile work environment. Appellant advised that K.T.
stated “for those employees you deem undesirable, make it as difficult as you can so they will
leave.” She asserted that K.T. changed travel requirements in her performance plan and
individual development plan. Appellant further alleged that she was required to take supervisor
training within the first year, but that K.T. denied her request for training on April 14 through 18,
2012 as it conflicted with a scheduled meeting. She noted that she had to take training within
four months, but other new supervisors were allowed nine months or more. Appellant also
alleged that K.T. prevented her from performing her job with changing requirements. She
asserted that K.T. pressured her to downgrade to another position. Appellant alleged that K.T.
scheduled her to attend two meetings on the same date two weeks after she arrived.
In her EEO complaint, appellant admitted that she overlooked the 20 percent travel
requirement in the job announcement, but noted that other managers could send deputies for
meetings, but not her. She alleged that K.T. sent e-mails to her at the end of the day or on the
weekends which required quick responses. Appellant alleged that, in a meeting, K.T. asked why
there was not a best actor award for drama and looked directly at her, causing an information
technology manager to laugh. On February 21, 2008 she complained to J.D., the acting regional
director, about on-going harassment based on disability, and he assured her that he would look
into it. Appellant reported that she worked from 7:00 a.m. to 4:00 p.m. with 1 to 1.5 hours for
lunch. She noted that she had a dependent sister who was 100 percent disabled due to a brain
injury. Appellant had difficulty finding a caregiver for her sister who could legally administer
medication and nutrition through a feeding tube. Until she could, she returned home from work
at lunchtime to care for her sister, a distance of 80 miles round trip. Appellant once had to take
her sister to a mandatory meeting because she had not found a nurse to care for her. K.T.
e-mailed appellant on March 3, 2008 to inform her that she could not extend her lunch break in
her regular schedule. She suggested that appellant use leave for any additional time needed.
K.T. directed appellant to meet her travel obligations by February 5, 2008.
Documentation associated with her EEO complaint included the May 30, 2008 sworn
testimony of J.D., who noted that, when interviewing for her position, appellant had advised that
she had to care for her disabled sister, but was seeking a caretaker. She informed him of alleged
harassment by her supervisor beginning November 14, 2007. J.D. testified that he permitted her

3

have a long lunch break to care for her sister. A week later, appellant informed him that she had
experienced reprisal as she was being required to provide documentation supporting medical
necessity.
K.S., supervisory procurement analyst, testified during the EEO proceeding, that she was
present during one of appellant’s interviews and that the 20 percent travel requirement was
discussed. She noted that K.T. had a management style that was difficult for some as she would
appear to reach a meeting of the minds, but then provide a completely different assessment
shortly thereafter. Appellant opined that K.T.’s management style was the same regardless of
the gender or race of those she supervised. K.S. reported her assessment of appellant’s
corrective action plan, noting that it was detailed and included 13 regional acquisition
Management policies. She noted that her staff assessed the plan as well put together and
provided a mechanism to undertake the corrective actions. K.S. also noted that appellant’s staff
was suffering because she was not at work as they were technically weak and required
mentoring.
In EEO testimony, D.H., a contract specialist, noted that appellant was her second-line
supervisor. She testified that K.T. instructed appellant to travel in front of her. D.H. testified
that appellant’s race and her care commitments may have been a factor in how she was being
treated. She asserted that K.T. treated Caucasian employees better than African-American
employees in two instances that she knew about.
In an EEO statement, K.B., an African-American female financial manager, noted that
she had previously filed an EEO complaint against K.T. She also noted that K.T. had announced
during a meeting that appellant had a disabled relative, and that appellant left staff meetings at
11:30 a.m. on Tuesdays to care for her sister. K.B. indicated that there was tension between
appellant and K.T. and noted that appellant was singled out for criticism during the meetings.
She reported that the question was asked during a meeting regarding handling employees that
were undesirable or not working out and the response was “make it hard on them so that they all
leave.” K.B. was aware that appellant took long lunches to care for her sister and informed her
that she was going to have to start using leave for this purpose.
L.T., a procurement technician and timekeeper, testified before an EEO investigator on
July 28, 2008. Appellant was her second-line supervisor. L.T. was aware of appellant’s sister’s
disability. Appellant’s work schedule was 7:00 a.m. to 4:00 or 4:30 p.m. and she was required to
work eight hours a day. L.T. testified that Human Resources requested appellant’s time records
from November 11, 2007 through March 15, 2008 and directed her not to inform appellant. The
issue was that appellant entered both leave codes and Family Medical Leave Act (FMLA) on her
time records. L.T. notified appellant of the request as appellant was her supervisor and because
she was concerned that she had been directed not to notify appellant. She was concerned that
appellant would lose pay due to the changes, but she maintained an annual leave balance.
Appellant’s leave was changed from FMLA to Family Friendly Leave.4

4

In a March 27, 2008 e-mail, appellant noted that she had used the wrong type of leave to care for her sister and
that her timesheets were amended to reflect a change in leave classification. In e-mails dated November 20 and 24,
2008, the employing establishment notified that her timesheet had been modified due to errors.

4

An EEO counselor’s March 18, 2008 report included a summary of K.T.’s statement.
She denied being aware that appellant spoke with J.D. on February 21, 2008 or that J.D.
permitted her to take extended lunch breaks to care for her sister. K.T. was aware that appellant
was associated with someone who had a disability, but she determined that appellant was not
entitled to reasonable accommodation. She asserted that appellant was aware of the 20 percent
travel requirement of her job, that she was required to take supervisory training, and that she
required one-on-one mentoring. K.T. noted that appellant did not know enough about
supervising others and was less experienced than those she supervised. She asserted that
overnight travel was necessary for appellant’s job. K.T. denied asserting that supervisors should
make things difficult for undesirables so that they would leave. She also denied commenting
about the best actor award, asserting that someone else made that comment in the context of a
facilitator’s discussion about the “drama triangle.” K.T. asserted that appellant often took 1.5
hours for lunch and then left the building for a smoke break. She noted that appellant was
allowed up to 60 minutes for lunch and that anything more had to be charged to leave.
Also in response to OWCP’s March 13, 2012 development letter, appellant also provided
copies of several e-mail exchanges between herself and K.T. On December 7, 2007 K.T. advised
appellant of mandatory Monday and Tuesday morning meetings. Appellant responded and noted
that she was unable to obtain care for her sister on those dates and asked if she could bring her
sister along. In a January 11, 2008 e-mail, K.T. informed appellant that the employing
establishment could not pay for her sister’s room.
Appellant also submitted an e-mail exchange with K.T. regarding travel and work
requirements in January and February 2008. On January 15, 2008 she noted her difficulties in
obtaining care for her sister and indicated that she believed that she would be available to travel
on or about March 17, 2008. In a January 22, 2008 e-mail, K.T. informed appellant that travel
was a critical part of her job and that she would not be successful without traveling. She notified
appellant that it was not appropriate to have lower-graded staff continually represent her division
at management meetings. K.T. noted “the bottom line is that you cannot fulfill the requirements
of this job without 20 percent travel.” She directed appellant to meet her travel obligations,
effective February 5, 2008. Appellant responded on January 24, 2008 and admitted that she had
overlooked the 20 percent travel requirement on the job announcement.
In a February 7, 2008 e-mail, K.T. directed appellant to put a hold on any regional
policies put in place since October 1, 2007. She noted that new policies and requirements
needed to be developed in collaboration with area offices. On February 9 2008 K.T. e-mailed
appellant and directed her to withdraw the regional policies she issued. Appellant provided K.T.
with the finalized briefing paper on February 19, 2008. In a February 22, 2008 e-mail, she
confirmed that she was to rewrite all 13 policies and prepare new drafting papers.
K.T. e-mailed appellant on February 25, 2008 regarding her scheduled training. She
provided appellant’s training priorities on February 26, 2008. On March 7, 2008 K.T. noted that
appellant had requested 30 minutes a day of leave in conjunction with her lunch hour and noted
that appellant was not considering a scheduled meeting. She opined that appellant’s attendance
was critical. In a March 12, 2008 draft e-mail, K.T. noted her concerns about appellant’s
repeated absences. She asserted that appellant’s absences were adversely impacting others’
personal lives and appellant’s ability to lead her team. K.T. described the e-mail as a “warning

5

shot.” She e-mailed appellant on March 19, 2008 and directed her to register for a conference
and make hotel and flight reservations. Appellant noted that she could not fly with her
coworkers as she had a scheduled medical procedure. On June 26, 2008 K.T. e-mailed appellant
about her failure to attend a scheduled meeting. Appellant alleged that she was unable to
succeed in all areas due to the number of meetings, mentoring, and mandated training scheduled.
On March 20, 2009 appellant provided additional information regarding her March 5,
2008 whistleblower complaint against K.T. She alleged that K.T. improperly allowed a
nongovernmental contractor to sign government documents which obligated federal funding.
Appellant further alleged that this activity violated Federal Acquisition Regulations which
prohibited nongovernment entities to engage in inherently governmental activity.
A January 28, 2011 EEO decision found that K.T. had discriminated against V.R., an
African-American female employee, based on color, race, age, sex, and because she considered
her disabled. In a September 19, 2011 EEO decision, the EEO Administrative Judge did not find
that appellant experienced discrimination, disparate treatment by K.T., retaliation by K.T. or the
employing establishment, or harassment creating a hostile work environment.
On April 7, 2012 appellant provided a narrative statement wherein she repeated her EEO
complaint assertions and described additional work factors. She noted that K.T. asked human
resources and her assistant what they thought of the “warning shot.” On March 27, 2008 K.T.
directed human resources to unilaterally change her leave codes beginning January 2008 which
placed her in leave-without-pay status. Appellant asserted that K.T. provided contradictory
directions on training and disapproved her training requests. She alleged beginning February 26,
2008, K.T. began scheduling weekly development plan meetings. Appellant also noted that on
one occasion K.T. scheduled meetings for eight hours straight, causing her stress.
Appellant alleged that K.T. sent e-mails at all hours seven days a week. She alleged that
K.T. gave her an assignment on February 7, 2008 at 11:20 p.m. which was due on Saturday,
February 9, 2008. Appellant completed this assignment, and K.T. requested a revision of a
February 19, 2008 assignment on February 20, 2008 at 3:38 p.m., which required appellant to
complete 13 additional papers by 2:30 p.m. on February 21, 2008. This required her to work all
night. Appellant asserted that K.T. deliberately placed her in conflicting circumstances on
June 6, 2008, a Friday, when she directed her to have a presentation with handouts prepared by
Monday, June 9, 2008. She could not attend a teleconference due to this assignment. Appellant
asserted that whenever she attempted to perform her duties, K.T. would either reprimand her in
person or by e-mail. In August 2008, K.T. yelled at appellant and threatened her job. Appellant
reported that in December 2007 she began addressing the problems with unauthorized
obligations and revising the corrective action plan. K.T. berated appellant for this. On
February 5, 2008 appellant became aware that the region was writing illegal personal services
contracts. K.T. prevented appellant’s efforts to stop that practice and appellant “blew the
whistle” to the Government Accounting Office and Congress on March 5 and 7, 2008,
respectively. Appellant alleged retaliatory harassment noting that K.T. scheduled weekly
meetings during lunch when appellant needed to tend to her sister. She reiterated her allegations
of assaults on November 13 and November 19, 2008. Appellant noted that, following the
assaults, K.T. moved her into a conference room to work. She noted that coworkers were
constantly looking in the windows and that she felt opened to ridicule from coworkers.

6

Appellant also provided a detailed chronology of events including her symptoms, her father’s
illness, and her EEO complaint.
By decision dated October 15, 2012, OWCP denied appellant’s claim, finding that she
had failed to substantiate the alleged employment factors which she believed caused or
contributed to her emotional condition. It described these factors as: being under more stringent
demands than other employees; being deliberately required to attend meetings and conferences
which would interfere with her family situation; being inappropriately denied leave;
discrimination and hostile treatment; and being given a negative performance appraisal.
On November 8, 2012 appellant requested an oral hearing from an OWCP’s hearing
representative. During the oral hearing held on November 12, 2014, she testified regarding
K.T.’s continual changing of assignments and the requirement that she complete 13 memoranda
within three days. Appellant also noted that K.T. provided her with a special assignment on a
Friday night in August 2008 which K.T. wanted completed by Monday morning. K.T. asked
whether appellant had completed the assignment, but would not allow her to brief it. Appellant
felt that she had been given the assignment, but was not expected to complete it. She alleged
severe micromanagement and asserted that working from K.T. was 14 months of “sheer hell.”
Appellant also provided testimony from a social worker, a friend, and her sister’s caregiver. She
provided medical evidence after the hearing.
By decision dated February 20, 2015, OWCP’s hearing representative affirmed the
October 15, 2012 decision, finding that appellant had not established a compensable factor of
employment as she had not substantiated her allegations of error and abuse, harassment and
discrimination, or assault.
Appellant requested reconsideration on August 13, 2015. She again asserted harassment
by K.T.’s actions and the physical attacks. Appellant noted that an EEO Administrative Judge
found that K.T. had harassed another employee and she alleged that K.T. used the same tactics
against her. She advised that every time she tried to perform her duties she was verbally and
emotionally battered. Appellant asserted that K.T. had abused her authority in thwarting her
attempt to correct the illegal personal services contracts. She noted that travel requirements in
her job caused her condition. Appellant also attributed her emotional condition to undue
pressure to provide assignments in short-time periods, her performance appraisal, criticism, and
verbal altercations.
In support of reconsideration, appellant resubmitted EEO documents from J.D., K.B.,
D.H., and K.S. She also resubmitted the EEO finding for V.R. Appellant also submitted EEO
testimony from V.C., procurement analyst, who asserted that appellant was making positive
changes in her office. She noted speaking with appellant’s supervisee, D.K., 5 to 10 times when
appellant was not available. V.C. reported that the section was less chaotic when appellant
headed the section as there was little standardization.
D.T., the acquisition and financial assistance manager, also testified before the EEO
Administrative Judge, noting that appellant was technically capable. She stated that appellant’s
submitted documents addressed all issues and were well constructed. D.T. testified that while
appellant was technically capable, she was not there to do the day-to-day managing that needed

7

to be done. She noted that she contacted D.K., appellant’s subordinate, because she could
always reach her.
D.S., a procurement analyst, testified before the EEO judge that appellant was his direct
supervisor and K.T. was his second-line supervisor. He felt that he was treated differently by
K.T. based on his African-American race. D.S. opined that appellant did not communicate well
with her staff and relied on her prior experience rather than researching the appropriate
employing establishment regulations.
Appellant also provided her interim performance rating dated July 30, 2008, as well as
her September 25, 2008 unsatisfactory supervisory assessment.
By decision dated October 29, 2015, OWCP denied modification of its prior decisions. It
found that the EEO materials submitted on reconsideration did not mention any claim from or
against appellant and that the discrimination findings involved another employee. OWCP also
noted that her allegations about her supervisor did not establish error or abuse by the employing
establishment.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.6 There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus,
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.9

5

28 ECAB 125 (1976).

6

Supra note 1.

7

See Robert W. Johns, 51 ECAB 136 (1999).

8

Supra note 5.

9

Id.

8

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.10 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.11 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.12
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
developed an emotional condition in the performance of duty.
The Board notes that appellant has not attributed her emotional condition to difficulties in
carrying out her employment duties and, therefore, has not implicated a compensable factor of
employment under Cutler.14
Rather, appellant has attributed her emotional condition to administrative actions of the
employing establishment which she asserted constituted error and abuse. In Thomas D.
McEuen,15 the Board held that an employee’s emotional reaction to administrative actions or
personnel matters taken by the employing establishment is not covered under FECA as such
matters pertain to procedures and requirements of the employing establishment and do not bear a
direct relation to the work required of the employee. The Board noted, however, that coverage
under FECA would attach if the facts surrounding the administrative or personnel action
established error or abuse by employing establishment superiors in dealing with the claimant.
Absent evidence of such error or abuse, the resulting emotional condition must be considered
self-generated, and not employment generated. In determining whether the employing

10

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

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

12

Roger Williams, 52 ECAB 468 (2001).

13

E.C., Docket No. 15-1743 (issued September 8, 2016); Alice M. Washington, 46 ECAB 382 (1994).

14

Supra note 5.

15

Supra note 12.

9

establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.16
Appellant specifically alleged that management: (1) placed her under more stringent
demands than other employees; (2) deliberately required her to attend meetings and conferences
which would interfere with her family situation; (3) inappropriately denied her leave requests;
(4) gave her a negative performance appraisal; and (5) set time constraints for assignment
completion that were difficult to complete. The Board has held that disputes regarding leave,17
assignment of work,18 assessment of work performance,19 change of workstation,20 and training21
are all administrative functions of the employing establishment and, absent error or abuse, a
claimant’s disagreement or dislike of such a managerial action is not compensable. The Board
finds that, while appellant disagreed with the actions of her supervisor, K.T., she has not
established error or abuse on the part of the employing establishment in regard to these
activities.22 Appellant has not submitted any evidence to substantiate that these management
actions were anything more than an ordinary tension between a manager and an employee and
are not sufficient to prove error and abuse.
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim. In claims for an emotional condition attributed to work-related
stress, the claimant must specifically delineate those factors or incidents to which the emotional
condition is attributed and submit supporting factual evidence verifying that the implicated work
situations or incidents occurred as alleged. Vague or general allegations of difficulty arising in
the employment are insufficient to give rise to compensability under FECA. The primary reason
for requiring factual evidence from the claimant in support of her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by OWCP and the Board.23
Therefore, appellant has not established a compensable factor of employment in regard to these
allegations.
Appellant also attributed her emotional condition to statements which she attributed to
K.T. including an indication that appellant “deserved an acting award for drama” and that, “to rid
yourself of certain employees, you should make work so difficult that they leave.” Verbal
altercations and difficult relationships with supervisors, when sufficiently detailed by the
16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

17

See T.V., Docket No. 16-1519 (issued September 12, 2017); Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

18

See T.V., id.; Robert W. Johns, supra note 7; T.S., Docket No. 16-1470 (issued September 11, 2017).

19

See T.V., supra note 17; Elizabeth W. Esnil, 46 ECAB 606 (1995).

20

R.V., Docket No. 16-0182 (issued June 15, 2017).

21

James E. Norris, 52 ECAB 93 (2000).

22

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004) (mere dislike or disagreement with certain supervisory
actions will not be compensable absent error or abuse on the part of the supervisor).
23

Y.J., Docket No. 15-1137 (issued October 4, 2016); L.L., Docket No. 14-1525 (issued July 7, 2015).

10

claimant and supported by the record, may constitute factors of employment. This does not
imply, however, that every statement uttered in the workplace will give rise to coverage under
FECA.24 The record does not substantiate that K.T. made these remarks. K.T. denied making
the remarks and indicated that the first arose in a discussion of a “drama triangle.” While a
witness agreed that some version of the second remark was made, it was not clearly identified as
to time, place, and speaker.25 Thus, appellant has not established a compensable work factor in
this regard.
Appellant also attributed her emotional condition to “assaults” by S.H. and M.D.
Physical contact by a coworker may give rise to a compensable work factor, if the incident is
established factually to have occurred as alleged.26 The employing establishment and the Federal
Protective Service each performed investigations and neither event was substantiated in the
record. Without supportive evidence, appellant has not established that physical condition
actually occurred.27
Appellant further alleged harassment and discrimination by K.T. with regard to the
previously described events as well as appellant’s whistleblowing activities. She asserted that
K.T. treated her differently based on her protected class. Appellant submitted her EEO
complaint, testimony of witnesses, and findings of the administrative judge. The judge in
appellant’s case, however, did not make a finding of harassment, retaliation, or discrimination.
The EEO decision that appellant submitted in support of her allegations of harassment/
discrimination by K.T. involved V.R., a coworker, and did not pertain to appellant’s EEO claim
whatsoever. Moreover, the Board has held that the findings of other government agencies are
not dispositive with regard to questions arising under FECA.28 The witness statements submitted
also do not support that K.T. treated appellant differently based on her race, her sister’s
disability, or any other protected class. Unsubstantiated allegations of harassment or
discrimination are not determinative of whether such harassment or discrimination occurred. As
appellant has not supported her allegations of harassment and discrimination by K.T. with
probative and reliable evidence, she has not established a compensable factor of employment in
this regard.29
The Board finds that as appellant has not substantiated a compensable factor of
employment, she has not met her burden of proof. Where a claimant has not established any
compensable employment factors, the Board need not consider the medical evidence of record.30
24

S.B., Docket No. 16-1522 (issued March 3, 2017); Marguerite J. Toland, 52 ECAB 294 (2001).

25

Y.J., supra note 23.

26

Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995).

27

See E.M., Docket No. 16-1695 (issued June 27, 2017) (finding that if physical contact is substantiated, then a
compensable employment factor is established).
28

Ernest J. Malagrida, 51 ECAB 287 (2000).

29

L.D., Docket No. 17-0693 (issued August 18, 2017).

30

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

11

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.31
Issued: July 23, 2018
Washington, DC

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

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

31
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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)

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

Docket No. 11-1952
Issued: September 10, 2012

Oral Argument May 1, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from July 12 and August 9 and 10,
2011 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective January 4, 2010; (2) whether OWCP properly found an overpayment of $11,630.61 was
created due to an incorrect pay rate; (3) whether OWCP properly denied waiver of the
overpayment; and (4) whether appellant has more than a 15 percent permanent impairment to her
left arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 27, 1993 appellant, then a 34-year-old accounting technician, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injuries on April 23, 1993 when her chair
slid backwards and she twisted and fell. OWCP accepted the claim for cervical, lumbosacral,
left thumb and ring finger strains, as well as metacarpophalangeal (MP) joint reconstruction
surgery on May 2, 1994. Appellant was involved in a motor vehicle accident on June 6, 1994
and OWCP accepted aggravation of the left thumb as a consequential injury.
By decision dated September 11, 1995, OWCP terminated compensation for wage loss on
the grounds that she had refused an offer of suitable work. Appellant returned to work on
October 10, 1995 at four hours per day.
On October 27, 1995 appellant filed a traumatic injury claim alleging that she injured the
fingers on her left hand when she slammed her fingers in a door while in the performance of
duty. She stopped working and began receiving compensation for wage loss. OWCP accepted
the claim for contusion and sprains of the left third and fourth fingers and left MP joint surgery,
April 23, 1996.2 The pay rate for compensation purposes was $416.73 per week, based on a fulltime pay rate as of October 27, 1995.3
By decision dated July 2, 1996, an OWCP hearing representative reversed the
September 11, 1995 refusal of suitable work termination. The hearing representative found
OWCP did not meet its burden of proof to terminate compensation.
OWCP referred appellant for a second opinion evaluation by Dr. Pietro Seni, an
orthopedic surgeon.4 In a report dated May 15, 1999, Dr. Seni provided a history and results on
examination. He diagnosed postarthrodesis of the MP joint of the left thumb, fibromyalgia or
myofascial-type syndrome, lumbar spondylosis with axial back pain, degenerative
spondylolisthesis L5-S1 noted on MRI scan and right S1 radiculopathy. Dr. Seni opined that
there were no residuals of a left thumb strain or left third and fourth finger strains. He indicated
that appellant could work as an accounting technician.
In a report dated June 27, 2009, Dr. Charles May, an attending osteopath, stated that he
did not agree with all of Dr. Seni’s medical opinions. He opined that appellant could not work as
an accounting technician because of the MP joint fusion. OWCP determined that a conflict in
the medical evidence existed and referred appellant for a referee examination by Dr. Ralph
Rohner, a Board-certified orthopedic surgeon.5

2

The April 23, 1993 injury claim is considered the master file and the October 27, 1995 injury is a subsidiary.

3

The employing establishment indicated that appellant earned $10.27 per hour.

4

5 U.S.C. § 8123(a) provides that an employee shall submit to an examination by a physician designated or
approved by the Secretary of Labor, as frequently and at the times and places as may be reasonably required.
5

When there is a disagreement between an attending physician and a physician making an examination for
OWCP, then a third physician shall be selected to make an examination. 5 U.S.C. § 8123(a).

2

In a report dated September 29, 2009, Dr. Rohner provided a history and results on
examination. He opined there were no objective findings to support residuals of the accepted
strains or contusions. In addition, Dr. Rohner stated that he could not relate any current cervical
or lumbar complaints to the work injuries. He stated that appellant had a good, solid arthrodesis
of the left thumb MP joint, but there would be permanent residuals. Dr. Rohner opined that,
after reviewing appellant’s job description, he could not see why appellant could not “return to
substantial gainful employment in performing those duties required by her employment. It is my
medical judgment that she could accommodate any incapacity caused by the fusion with routine
work activity adjustments -- not cessation of work.” He also provided an opinion as to a
permanent impairment under the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter referred to as the A.M.A., Guides).
By letter dated October 19, 2009, OWCP requested additional information from
Dr. Rohner regarding disability and permanent impairment. Dr. Rohner submitted an OWCP-5c
(work capacity evaluation) stating that “there are no work restrictions based on the claim as
allowed.” With respect to permanent impairment, Dr. Rohner submitted notes indicating that he
would not offer an opinion under the sixth edition of the A.M.A., Guides.
In a letter dated December 1, 2009, OWCP advised appellant of a preliminary
determination that it proposed to terminate compensation for wage-loss and medical benefits,
with the exception of medical benefits for the left thumb. By decision dated January 4, 2010,
OWCP terminated compensation benefits other than medical benefits for the left thumb MP joint
fusion.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 8, 2010. By decision dated June 8, 2010, the hearing representative affirmed the
January 4, 2010 decision.
With respect to a permanent impairment, appellant submitted a June 8, 2010 report from
Dr. Richard Ward, a Board-certified orthopedic surgeon, who opined that appellant had a 15
percent arm impairment based on left thumb loss of range of motion. Dr. Ward also stated that
appellant had mild sensory deficits for an 8 percent impairment, as well as an additional 3
percent for the ring and longer finger, resulting in a 29 percent left arm impairment.
An OWCP medical adviser reviewed the report of Dr. Ward and indicated in a
September 2, 2010 report that the report was incomplete. In a February 3, 2011 letter, OWCP
requested that Dr. Ward provide a supplemental report.
On February 28, 2011 appellant submitted a January 31, 2011 report from Dr. James
Rutherford, a Board-certified orthopedic surgeon, who provided a history, results on examination
and reviewed medical records. Regarding the left thumb, Dr. Rutherford found 29 percent
thumb impairment based on loss of range of motion. He also found 20 percent thumb
impairment based on sensory deficit. Combining the 29 percent and 20 percent under the
A.M.A., Guides resulted in 43 percent thumb impairment, or 15 percent arm impairment.
On March 15, 2011 OWCP received an undated report from Dr. Ward who again opined
that appellant had a 29 percent left arm impairment. Dr. Ward identified tables and indicated

3

that the impairment was based on loss of range of motion, sensory deficit and pain. By report
dated March 31, 2011, an OWCP medical adviser concurred that the impairment was 15 percent
based on Dr. Rutherford’s report. The date of maximum medical improvement was reported as
June 8, 2010.
In a memorandum dated April 19, 2011, OWCP stated that appellant had been paid
compensation with an incorrect rate of pay. According to it, the disability for the October 27,
1995 injury was “relatively minor” and she was only working four hours per day. OWCP stated
that the correct pay rate date should be April 23, 1993, the date of the original injury. A
worksheet indicated that based on a pay rate of $376.19 per week, effective April 23, 1993,
appellant was overpaid $11,631.61 from December 12, 1995 to January 4, 2010.
By letter dated April 20, 2011, OWCP advised appellant of a preliminary determination
that an overpayment of $11,631.61 had occurred due to compensation paid based on an incorrect
rate of pay. It found that the pay rate of $416.73 was incorrect as appellant had not returned to
full-time work on October 27, 1995, and it was not a recurrence of disability more than six
months after a return to full-time work. According to OWCP the compensation benefits had
been reinstated when the September 11, 1995 suitable work termination was reversed, but there
was no basis to change the pay rate from the initial date of injury on April 23, 1993. It also
found appellant was not at fault in creating the overpayment.
In a decision dated July 12, 2011, OWCP denied modification of the termination
decisions. It found the report from Dr. Rutherford was not sufficient to warrant modification.
By decision dated August 9, 2011, OWCP finalized the overpayment determination of
$11,631.61 from December 12, 1995 to January 4, 2010. With respect to waiver, it found “the
evidence of record demonstrates that you do not have any money left over after paying your
monthly living expenses.” OWCP then found that waiver was denied and since appellant was
entitled to a schedule award, the debt should be recovered by a single deduction from
compensation owed.
By decision dated August 10, 2011, OWCP issued a schedule award for a 15 percent left
arm permanent impairment. The period of the award was 46.80 weeks from June 8, 2010. The
pay rate was reported as $376.19 per week.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.6

6

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

ANALYSIS -- ISSUE 1
In the present case, there was a conflict in the medical evidence as to the nature and
extent of a continuing employment-related condition. Dr. Seni, the second opinion physician,
opined that appellant could return to work as an accounting technician. The attending physician,
Dr. May, disagreed, stating that appellant’s left thumb condition disabled her for the date-ofinjury position.
The referee physician, Dr. Rohner, submitted a detailed medical report providing results
on examination and reviewing the medical history. He found that the only residuals of an
employment-related condition were related to the MP joint surgery. Dr. Rohner clearly stated in
the work capacity evaluation that there were no work restrictions causally related to the accepted
employment injuries. The Board finds that he provided a rationalized medical opinion based on
a complete background. It is well established that when a case is referred to a referee specialist
for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual and medical background, must be given special
weight.7 The Board finds that Dr. Rohner represents the weight of the medical evidence on the
issue presented. OWCP met its burden of proof to terminate compensation for wage-loss and
medical benefits, other than those related to the left thumb, as of January 4, 2010.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8101(2), “‘monthly pay’ means the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than [six] months after the injured employee
resumes regular full-time employment with the United States, whichever is greater.…”
ANALYSIS -- ISSUE 2
OWCP found that an overpayment of compensation occurred from December 12, 1995 to
January 4, 2010 because appellant was paid compensation based on an incorrect pay rate. The
record indicates that she received compensation based on a pay rate on October 27, 1995 for a
full-time position of $416.73 per week. According to OWCP, the pay rate should have been
based on a date of injury of April 23, 1993 or 376.19 per week.
The record in this case indicates that appellant had an accepted injury on October 27,
1995 and was totally disabled as of that date. OWCP found that the $416.73 pay rate was
incorrect because appellant was working four hours at the time, and the date did not represent a
recurrence of disability. October 27, 1995 does not represent a date “compensable disability
recurs,” but it does represent a date of injury and a date disability begins. Under 5 U.S.C
§ 8101(2), the pay rate on October 27, 1995 could represent the pay rate for compensation
purposes, if it is greater that the pay rate on April 23, 1993.
In this case, OWCP’s finding that appellant was working four hours since October 10,
1995 does not resolve the issue. The pay rate for compensation purposes on October 27, 1995 is
7

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

5

properly determined by applying 5 U.S.C. § 8114.8 This section requires OWCP to determine
whether appellant worked in the job substantially the whole year prior to injury, or whether the
job would have provided employment for substantially the whole year prior to injury. If neither
of those methods could be applied reasonably and fairly, OWCP applies 5 U.S.C. § 8114(d)(3) to
determine a sum that reasonably represents the employee’s earning capacity.
OWCP did not attempt to apply the provisions of 5 U.S.C. § 8114 to properly determine
appellant’s pay rate as of October 27, 1995. The case will accordingly be remanded to OWCP
for a proper determination. The Board will not address the waiver issue at this time as the issues
of fact and amount of overpayment have not been resolved.
LEGAL PRECEDENT -- ISSUE 4
FECA provides that, if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.9 Neither FECA nor the regulations specify the
manner in which the percentage of impairment for a schedule award shall be determined. For
consistent results and to ensure equal justice for all claimants OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.10 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition.11
ANALYSIS -- ISSUE 4
In the present case, OWCP received reports from Dr. Ward and Dr. Rutherford with
respect to a permanent impairment. The Board notes that Dr. Rutherford’s report provided
detailed results on physical examination and reviewed the medical history. Dr. Ward provided
brief reports with little history or results on examination. In addition, Dr. Rutherford’s
examination was the more recent of the two, as he examined appellant on January 31, 2011 and
Dr. Ward on June 8, 2010. The Board finds that it was reasonable for OWCP to base its
schedule award determination on the findings of Dr. Rutherford.
In his January 31, 2011 report, Dr. Rutherford finds that, under Table 15-30, the left
thumb ankylosed at five degrees was five percent thumb impairment. The table indicates that
ankylosis at 20 degrees is a five percent impairment, while ankylosis at 5 degrees is a seven
percent thumb impairment.12 For three centimeters of thumb opposition, the thumb impairment
under Table 15-30 is nine percent.13 Pursuant to Table 15-30, 30 degrees of adduction is five
8

See H.S., 58 ECAB 511 (2007); 20 C.F.R. § 10.5(s).

9

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
10

A. George Lampo, 45 ECAB 441 (1994).

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

12

A.M.A., Guides 468, Table 15-30. Dr. Rutherford identified grade modifier 4 for ankylosis.

13

Id.

6

percent thumb impairment and four centimeters abduction is a four percent thumb impairment.
As to the interphalangeal (IP) joint, 30 degrees flexion is a three percent thumb impairment and
-10 degrees extension is also a three percent thumb impairment.
The Board accordingly finds that using the correct 7 percent impairment for MP joint
ankylosis at five degrees, the range of motion impairment for the thumb is 31 percent, as
opposed to the 29 percent reported by Dr. Rutherford and OWCP’s medical adviser. With
respect to sensory deficit, Dr. Rutherford found appellant had 20 percent thumb impairment
under Table 15-16.14 Under this table, radial digital nerve sensory loss along the total length of
the thumb is 20 percent thumb impairment. Combining the 31 percent with the 20 percent
results in 45 percent thumb impairment.15 Applying Table 15-12, 45 percent thumb impairment
is 16 percent arm impairment.16
Based on the medical evidence of record, appellant has a 16 percent left arm permanent
impairment based on thumb loss of range of motion and sensory deficit. On return of the case
record OWCP should issue an appropriate decision for an additional one percent left arm
permanent impairment. The Board also notes that the August 10, 2011 schedule award decision
used a pay rate of 376.19 per week. Once OWCP resolves the pay rate issue, the schedule award
should be consistent with OWCP’s findings in this regard.
CONCLUSION
The Board finds that OWCP properly terminated compensation for wage-loss and
medical benefits for conditions other than the left thumb as of January 4, 2010. The Board
further finds that OWCP did not establish an overpayment of compensation of $11,630.61 from

14

A.M.A., Guides 427, Table 15-16.

15

See id. at 604, Combined Values Chart.

16

A.M.A., Guides 422, Table 15-12.

7

December 12, 1995 to January 4, 2010, and the case is remanded for further development. In
addition, the Board finds appellant has a 16 percent left arm permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2011 is affirmed. The decision dated August 9, 2011 is
set aside and the case remanded for further action consistent with this decision of the Board. The
decision dated August 10, 2011 is modified to reflect a 16 percent left arm permanent
impairment and affirmed, as modified.
Issued: September 10, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sutter Creek, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
No appearance for the Director

)
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Docket No. 14-706
Issued: June 10, 2015

Oral Argument held September 16, 2014

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

JURISDICTION
On February 11, 2014 appellant filed a timely appeal from a January 24, 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.
ISSUES
The issues are: (1) whether OWCP properly determined that an overpayment of
$148,642.64 was created; and (2) whether it properly found appellant at fault in creating the
overpayment and, therefore, not entitled to waiver.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 OWCP had issued a preliminary
determination dated April 25, 2013 finding an overpayment of compensation. According to the
record, appellant had failed to disclose employment activities on Form EN1032s dated
November 23, 2007, November 28, 2008, November 21, 2009, and November 24, 2010. OWCP
found in its April 25, 2013 preliminary determination that appellant had sold items at her farm
and engaged in other employment activity, such as offering tours, while receiving FECA
compensation. It found that an overpayment was created from August 23, 2006 (15 months prior
to the November 23, 2007 EN1032) through November 24, 2010. According to the preliminary
determination, appellant was overpaid for this period “because she did not report selfemployment on EN1032 forms and knew or should have known she was creating an
overpayment.” OWCP also made a preliminary finding that appellant was with fault in creating
the overpayment, as she should have known her compensation was “subject to recovery” if she
did not respond truthfully to the questions on the EN1032 forms.
OWCP issued a final overpayment decision dated May 29, 2013 finding that appellant at
the time had chosen not to submit evidence either refuting the amount of the overpayment or the
finding of fault. However, appellant had submitted additional evidence on May 29, 2013 that
had not been reviewed by OWCP. The Board remanded the case for proper review of the
evidence of record.3
In a letter dated November 8, 2013, OWCP reported that, in a telephone conference,
appellant had been advised to provide sufficient proof of her monthly expenses. It provided her
15 days to submit the additional evidence. By letter dated November 13, 2013, appellant stated
that she had previously explained that her insurance rates had increased and her social security
payment had been reduced, but that OWCP had refused to listen. She submitted receipts, copies
of invoices, and other financial documents.
By decision dated January 24, 2014, OWCP issued a final determination with respect to
an overpayment of $148,642.64 and finding of fault. As to fault, it found that appellant should
have known her compensation was “subject to forfeiture.”
LEGAL PRECEDENT
Section 8106(b) of FECA provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies.… An employee who -(1) fails to make an affidavit or report when required; or

2

Docket No. 13-1840 (issued September 24, 2013).

3

Id.

2

(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”4
As forfeiture is a penalty, it is not enough to establish that the claimant failed to report earnings
from employment or self-employment. OWCP must show that the claimant knowingly omitted
or understated any part of his earnings.
“Knowingly” means “with knowledge, consciously, willfully or intentionally.”5 OWCP
thus has the burden of proof to establish that appellant did, either with knowledge, consciously,
willfully, or intentionally, omit or understate any part of her earnings. To meet this burden, it is
required to examine closely appellant’s activities and statements. This burden may be met
without an admission by the claimant if the circumstances of the case establish that she failed to
reveal fully and truthfully the full extent of her employment activities and earnings.6
Earnings from employment or self-employment means gross earnings or wages before
any deductions and includes the value of subsistence, quarters, reimbursed expenses, and any
other goods or services received in kind as remuneration. It also means a reasonable estimate of
the cost to have someone else perform the duties of an individual who accepts no remuneration.
Neither lack of profits, nor the characterization of the duties as a hobby, removes an
unremunerated individual’s responsibility to report the estimated cost to have someone else
perform his or her duties.7
The test of what constitutes reportable earnings is not whether the claimant received a
salary, but what it would have cost to have someone else to do the work. Where a claimant takes
an active role in the operation of a business, the claimant is obligated to report as earnings the
amount that would have been paid to a person doing such work.8
OWCP regulations also provide that if an employee knowingly omits or understates any
earnings or work activity in making a report, he or she shall forfeit the right to compensation
with respect to any period for which the report was required.9 Its procedures note that the
statutory provision for forfeiture of compensation is 5 U.S.C. § 8106(b).10 All claimants on the
4

Supra note 1 at § 8106(b).

5

20 C.F.R. 10.5(n) (1999)

6

Terryl A. Geer, 51 ECAB 168 (1999).

7

Supra note 5 at § 10.5(g).

8

Anthony A. Nobile, 44 ECAB 268, 271 (1992) (the claimant worked at a liquor store owned by his family but
contended that he received no salary for his work).
9

Supra note 5 at § 10.529.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.2 (May 2012).

3

periodic rolls must complete an EN1032 on a yearly basis. The form covers a 15-month period
and provides specific instructions as to reporting employment activity, including selfemployment.11 A forfeiture decision applying section 8106(b) must make a determination that
the claimant failed to report earnings, and that such failure was done knowingly.12
In determining whether OWCP has discharged its burden of proof, it is required by
statute and regulations to make findings of fact.13 Its procedure further specifies that a final
decision of OWCP 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.14 These requirements are supported by Board precedent.15 The forfeiture
provision is a penalty provision and is thus narrowly construed.16
ANALYSIS
In the present case, OWCP made a finding that an overpayment occurred because
appellant had not disclosed employment activity on periodic EN1032 forms. An employee may,
as noted above, be subject to forfeiture for knowingly omitting or understating any part of her
earnings on these forms.
In this case, OWCP failed to establish that appellant had knowingly omitted or
understated her employment activities. It did not cite to 5 U.S.C. § 8106(b), nor any other
authority for its finding that simply the failure to provide information on the EN1032 forms
results in forfeiture of compensation. The EN1032 form requests information from the previous
15 months and advises a claimant that failure to report income “may result in the forfeiture of
compensation.”
To find that appellant has, in fact, forfeited her right to compensation under FECA, there
must first be a finding that appellant failed to truthfully report her earnings. In order to meet the
standard under 5 U.S.C. § 8106(b), there must be a finding of intent.17
As 5 U.S.C. § 8106(b) is a penalty provision, it must be strictly construed. In this case,
OWCP failed to adequately address the underlying basis for the declared overpayment of
compensation. Its determinations in this case did not discuss the issue but rather referenced the
“knew or should have known” standard with respect to the overpayment.
11

Id. at Chapter 2.1402.4 (May 2012).

12

Id. at Chapter 2.1402.5 (May 2012).

13

5 U.S.C. § 8124 provides that OWCP shall determine and make findings of fact with respect to an award for or
against payment of compensation. Supra note 5 at § 10.126 states that a decision shall contain findings of fact and a
statement of reasons.
14

Supra note 10 at Chapter 2.1400.5 (February 2013).

15

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

16

M.C., Docket No. 10-881 (issued February 7, 2011); Karen Spurling, 56 ECAB 189, 194 n.9 (2004).

17

Supra note 4.

4

In J.A., OWCP had issued a preliminary determination of an overpayment based on
forfeiture, but an OWCP hearing representative set aside the preliminary determination.18 A
second preliminary determination, as well as an OWCP hearing representative’s decision, failed
to address the forfeiture issue or to explain the basis of the overpayment. The Board remanded
the case, finding that it was premature to address fact of overpayment when the presumed basis
for the overpayment (forfeiture) had not been adequately addressed by OWCP. As previously
stated, OWCP’s decision “does not contain detailed facts and findings regarding the forfeiture
matter. In the absence of such facts and findings, it is premature to consider whether OWCP
properly found an overpayment of compensation and whether appellant was at fault in the
creation of such an overpayment because the presumed basis for this overpayment (i.e., the
forfeiture of compensation for various periods) has not been adequately addressed by OWCP.”19
It is well established, as noted above, that a claimant is entitled to a decision that
adequately provides a statement of reasons and findings of fact.20 OWCP has not established an
overpayment of compensation in this case. It must properly identify and discuss the relevant
authority that serves as the foundation for the creation of an overpayment. The case will be
remanded for proper findings with respect to the overpayment issues. In view of the Board’s
holding, the issue of fault and waiver will not be addressed.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to an
overpayment of compensation.

18

Docket No. 12-1793 (issued May 7, 2013).

19

Id.

20

Supra note 5 at § 10.126.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2014 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: June 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 11-38
Issued: October 25, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant filed a timely appeal of the August 6, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying modification of a wageearning capacity determination. 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 appellant met his burden of proof to establish that modification of a
November 25, 2005 wage-earning capacity determination was warranted.
On appeal, appellant contends that OWCP’s wage-earning capacity determination was in
error and warranted modification as he did not have the specific vocational preparation to
perform the constructed position of residence counselor.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a May 18, 2001 decision, the Board
found that OWCP properly terminated appellant’s compensation on the grounds that he no
longer had any residuals of his accepted employment-related physical conditions, but improperly
terminated his compensation for his emotional condition.2 The Board also affirmed an April 12,
1999 decision which denied appellant’s request for an oral hearing on the grounds that it was not
timely filed pursuant to 5 U.S.C. § 8124(b). In a May 25, 2010 decision, the Board set aside a
November 20, 2008 OWCP decision which denied modification of a November 25, 2005 wageearning capacity determination.3 The Board remanded the case for further development as to
whether appellant possessed the vocational skills to perform the constructed position of residence
counselor. The Board instructed OWCP to address the fact that appellant did not complete his
social services aide training and had not been gainfully employed for over 25 years. The facts of
the case as set forth in the Board’s prior decisions are incorporated herein by reference.4 The
facts and the history relevant to the present appeal are hereafter set forth.
On July 10, 2003 OWCP referred appellant to vocational rehabilitation services based on
his unemployment since 1982 and accepted emotional and physical conditions. On July 26, 2004
it approved the rehabilitation counselor’s plan which included appellant’s enrollment in
classroom and practicum courses related to chemical dependency and social services at Spokane
Falls Community College to prepare for the positions of residence counselor, social services aide
or substance abuse counselor. On June 6, 2005 the rehabilitation counselor reported that
appellant obtained practicum work experience as a counselor at Holy Family Adult Care
commencing May 18, 2005. On July 28, 2005 he advised that he was capable of performing the
positions of case aide, social services aide, residence counselor or substance abuse counselor.
These positions were available in appellant’s commuting area. Appellant’s May 17, 1987
Bachelor of Science degree in health science with honors from Whitworth College and
completion of three quarters of coursework at the community college from the fall of 2004
through the spring of 2005 satisfied the vocational requirement of two to four years of vocational
preparation for the residence counselor position.5 The rehabilitation counselor conducted a labor
market survey and determined that the constructed position was reasonably available in
appellant’s commuting area.
Appellant submitted a November 14, 2007 “Vocational Assessment Report” and affidavit
of Daniel R. McKinney, Sr., a disability analyst and professional counselor, who advised that
appellant did not have the specific vocational preparation, skills or abilities necessary to obtain
2

Docket Nos. 99-1405 and 99-2245 (issued May 18, 2001).

3

Docket No. 09-904 (issued May 25, 2010).

4

OWCP accepted that on February 9, 1979 appellant, then a 26-year-old nursing assistant, sustained temporary
aggravation of his preexisting Scheuermann’s disease and congenital spondylolysis, thoracic, acute dorsal and
lumbar strains and adjustment reaction with depression and anxiety while in the performance of duty. Appellant
stopped work in 1982.
5

The rehabilitation counselor also determined that appellant’s bachelor’s degree and college coursework
vocationally prepared him for the positions of substance abuse counselor trainee, case aide and social services aide.

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and maintain employment as a residence counselor. Appellant had a degree in health
management, but never worked in the field. He only completed three quarters of a six-quarter
program for a social services aide at the community college and was not certified as a social
services aide. Appellant was 55 years old and had not been employed in over 25 years. At best,
he could obtain an entry-level minimum wage job at the state level with salary increases based
on his experience. Mr. McKinney concluded that appellant did not have transferable skills based
on his work history and incomplete and remote education.
In an August 6, 2010 decision, OWCP denied modification of the November 25, 2005
wage-earning capacity determination. It found that appellant’s four-year bachelor’s degree in
health science and community college coursework and practicum work experience met the
specific vocational preparation requirement of the constructed residence counselor position. The
fact that he did not complete the social services aide program at the community college and was
not certified as a social services aide did not establish that he was not vocationally prepared for
the constructed position. OWCP explained that the rehabilitation plan never indicated that
appellant would become a certified social services aide or that he would complete the entire
course. It further explained that the college courses were intended to supplement the knowledge
and skills appellant already possessed to enable him to obtain employment as a social services
aide or residence counselor. OWCP stated that the evidence of record did not establish that
appellant was required to be a certified social services aide to work as a residence counselor. It
further stated that the fact that appellant was 55 years old and had not worked in over 25 years
was considered and the rehabilitation counselor developed a plan which involved supplementing
his education with community college classroom and practicum courses relevant to the
constructed position. OWCP found that there was no evidence establishing that the Dictionary
of Occupational Titles allowed discrimination based on age. The rehabilitation counselor did not
indicate that appellant’s age impeded his ability to obtain a residence counselor position. OWCP
concluded that the evidence established that the constructed position was within his vocational
and physical capabilities and was reasonably available in the general labor market and his
commuting area.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.6
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
work-related condition, the employee has been retrained or otherwise vocationally rehabilitated

6

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

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or the original determination was in fact erroneous.7 The burden of proof is on the party
attempting to show the award should be modified.8
ANALYSIS
In the prior appeal, the Board remanded this case for OWCP to determine whether
appellant had the vocational skills to obtain the constructed position of residence counselor. On
remand, OWCP denied modification of the November 25, 2005 wage-earning capacity
determination, finding that the constructed position was vocationally suitable. The Board finds
that it properly determined that the constructed position was vocationally suitable to appellant.
There is no dispute that appellant was physically capable of performing the duties of the
constructed position or that he had been retrained or otherwise vocationally rehabilitated.
The report of Mr. McKinney, a Board-certified
disability analyst and professional counselor, stated that appellant did not have the
specific vocational preparation, skills or abilities necessary to obtain and maintain employment
as a residence counselor based on his work history and incomplete and remote education.
Mr. McKinney stated that appellant had a degree in health management, but never worked in the
field. He also stated that he completed three quarters of a six-quarter program for a social
services aide and was not certified as a social services aide. Mr. McKinney advised that at best,
appellant could only obtain an entry-level minimum wage state position due to his age of 55
years and unemployment for over 25 years. He recommended that he receive permanent total
disability compensation or adequate training to compete for a position with a salary similar to his
preinjury salary.
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity
and educational background.9 In this case, the rehabilitation counselor determined that appellant
had the skills necessary to perform the position of residence counselor based on his Bachelor of
Science degree in health management, completion of community college coursework and
practicum work experience at a family adult care center. He further found that the constructed
position was reasonably available within appellant’s commuting area. The rehabilitation
counselor considered appellant’s age and lengthy unemployment history and developed a
training plan as instructed by OWCP. His plan included community college courses and
practicum work experience relevant to not only a social services aide position, but also to the
constructed residence counselor position. Although appellant only completed three quarters of
the coursework, OWCP correctly noted that the rehabilitation plan did not indicate that he would
only become a certified social services aide or complete the entire program. The rehabilitation
counselor considered whether the social services aide and substance abuse counselor positions
7

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

8

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

9

N.J., 59 ECAB 171 (2007); Loni J. Cleveland, 52 ECAB 171 (2000); W.D., Docket No. 09-188 (issued
August 21, 2009).

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were suitable and determined that appellant was vocationally prepared for these positions. As
indicated by OWCP, there was no evidence establishing that appellant was required to be a
certified social services aide to obtain a residence counselor position. In addition to appellant’s
completion of his coursework, the rehabilitation counselor stated that he had practicum work
experience as a counselor at an adult care facility commencing May 18, 2005.
As the rehabilitation counselor is an expert in the field of vocational rehabilitation,
OWCP may rely on his or her opinion in determining whether the job is vocationally suitable and
reasonably available.10 The Board finds that appellant’s bachelor’s degree in health science and
recent community college coursework and work experience constitute adequate vocational
preparation for the constructed rehabilitation counselor position. For these reasons, the Board
finds that he did not show that modification of OWCP’s wage-earning capacity decision was
warranted and it properly denied his modification request.
Appellant contended on appeal that he did not receive specific vocational preparation to
obtain the constructed residence counselor position. For the reasons noted, the Board finds that
the position was vocationally suitable.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that OWCP’s November 25, 2005
determination of his wage-earning capacity should be modified.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(b) (2) (December 1993).

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ORDER
IT IS HEREBY ORDERED THAT the August 6, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Miami, FL, Employer
__________________________________________

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

Docket No. 20-1595
Issued: April 21, 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 September 9, 2020 appellant filed a timely appeal from an April 15, 2020 nonmerit
decision Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 20, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 21, 2018 appellant, then a 56-year-old airway transportation systems specialist,
filed a traumatic injury claim (Form CA-1) alleging that on that date he bumped his head on his
sun visor when accidently damaging the passenger side of his work vehicle while in the
performance of duty. In an accompanying statement, he explained that the motor vehicle collision
occurred when he was reaching for a sports drink and accidently turned to the right, damaging the
passenger side of his work vehicle. Appellant stopped work in the morning on August 21, 2018
and returned to work in the afternoon of the same date.
Appellant submitted emergency department discharge notes dated August 21, 2018.
In a development letter dated August 28, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
OWCP subsequently received a September 23, 2018 note from Dr. Serena Sara, a
chiropractor, who noted that appellant was involved in a motor vehicle accident on
August 21, 2018. Dr. Sara noted that x-rays were taken of his cervical and lumbar spine and
showed subluxation at the occiput, C1 levels, C7, C5, L3, L1, L2, and L5 levels. She diagnosed
segmental and somatic dysfunction of cervical region, neck strain, segmental and somatic
dysfunction of thoracic region, thoracic strain, segmental and somatic dysfunction of lumbar
region, lumbar strain, acute post-traumatic headache, right shoulder pain, right knee pain, left knee
pain, and segmental and somatic dysfunction of pelvic region. Dr. Sara opined that appellant’s
conditions and treatment were causally related to the claimed employment incident.
By decision dated October 1, 2018, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a medical diagnosis causally related to the
accepted August 21, 2018 employment incident. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On October 16, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In support of his request, appellant submitted a September 27, 2018 note from Dr. Rafael
Ubeda, a Board-certified family practitioner, who noted that appellant had suffered an emergency
medical condition as a result of the August 21, 2018 employment incident.
By decision dated March 20, 2019, an OWCP hearing representative affirmed the
October 1, 2018 decision.

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By letter dated March 18, 2020, received by OWCP on March 24, 2020, appellant
requested reconsideration.
Appellant submitted a magnetic resonance imaging (MRI) scan report of his cervical spine,
dated August 15, 2019, which revealed spondylitic and congenital multilevel mild cord
compression and C3 vertebral lesion. An MRI scan report of appellant’s right knee, dated
August 19, 2019, revealed stable meniscal chondrocalcinosis, osteoarthritis changes, high-grade
medial joint compartment chondromalacia, small suprapatellar effusion, significant degenerative
changes of the anterior cruciate ligament (ACL), and chronic posterior cruciate ligament (PCL)
sprain. An MRI scan report of his right shoulder, dated November 6, 2019, revealed focal partial
thickness tear at the proximal long head of the biceps tendon, significant tendinosis of the distal
supraspinatus tendon extending into the infraspinatus tendon, and degenerative changes of the
superior labrum. An MRI scan report of appellant’s lumbosacral spine, dated November 19, 2019,
revealed mild-to-moderate degenerative changes in the L2 inferior endplate and mild narrowing
of the L5-S1 intervertebral disc space.
In a letter dated February 13, 2020, the Department of Veterans Affairs indicated that
appellant was separated from military service under honorable conditions and was entitled to
compensation for service-connected disability rated at 30 percent or more.3
By decision dated April 15, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the “received date” in OWCP’s Integrated Federal
Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.7
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit

3

Appellant also submitted a partially-legible certificate of release or discharge from active duty.

4
5 U.S.C. § 8128(a); C.S., Docket No. 20-1075 (issued December 31, 2020); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

7
J.J., Docket No. 19-0977 (issued December 31, 2020); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).

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decision was in error.8 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.9 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.12
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.13 The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is insufficient to demonstrate clear evidence of error.14 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP.15
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

8

See 20 C.F.R. § 10.607(b); W.J., Docket No. 20-0489 (issued December 21, 2020); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
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L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (September 2020).

12

C.M., Docket No. 19-1211 (issued August 5, 2020).

13

Supra note 6 at Chapter 2.1602.4(b) (September 2020).

14

J.J., supra note 7.

15

Id.

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OWCP properly determined that appellant failed to file a timely request for
reconsideration. As noted above, a request for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.16 As appellant’s request for
reconsideration was not received into iFECS until March 24, 2020, more than one year after the
issuance of OWCP’s March 20, 2019 merit decision, it was untimely filed. Consequently, he must
demonstrate clear evidence of error on the part of OWCP.17
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in its last merit decision. OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between appellant’s cervical and lumbar spine conditions and the accepted August 21, 2018
employment incident.
In support of his untimely request for reconsideration, appellant submitted series of MRI
scan reports of his cervical spine, right knee, right shoulder, and lumbosacral spine, dated
August 15 through November 19, 2019. He also submitted a February 13, 2020 letter from the
Department of Veterans Affairs and a DD Form 214 related to his honorable discharge from the
Armed Forces. This evidence did not raise a substantial question as to the correctness of OWCP’s
denial of appellant’s claim as it did not contain a rationalized medical opinion explaining how
appellant’s diagnosed conditions were causally related to the accepted August 21, 2018
employment incident. Evidence that is not pertinent to the issue on which the claim was denied is
insufficient to demonstrate clear evidence of error.18
The Board has held that the term clear evidence of error is intended to represent a difficult
standard. None of the evidence submitted demonstrates on its face that OWCP committed an error
in denying appellant’s traumatic injury claim in its March 20, 2019 merit decision. The Board
therefore finds that the evidence is insufficient to demonstrate clear evidence of error.19
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

16

Supra note 5.

17

20 C.F.R. § 10.607(b); J.J., supra note 7.

18

D.B., Docket No. 20-0466 (issued December 17, 2020); S.E., Docket No. 16-1258 (issued December 5, 2016);
B.F., Docket No. 11-1181 (issued December 8, 2011).
19

D.B., id.

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 21, 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

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