United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vienna, VA, Employer
__________________________________________

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Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0900
Issued: September 2, 2016

Case Submitted on the Record

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

JURISDICTION
On March 26, 2016 appellant, through counsel, filed a timely appeal of a September 30,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty on February 2, 2015.
1

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

5 U.S.C. § 8101 et seq.

On appeal, appellant’s counsel argues that the decision should be reversed or remanded
as the hearing representative failed to address all of the medical evidence.
FACTUAL HISTORY
On February 5, 2015 appellant, then a 57-year-old sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that on February 2, 2015 a mentally disabled young
man, between 16 to 18 years old and six feet tall, came in the backside of the clerk’s window
counter and hugged her. She alleged that as a result of this incident she suffered stress and that
her “heart was pounding continually.” The employing establishment controverted appellant’s
claim as she had not submitted adequate medical evidence in support of her claim.
Appellant submitted a February 2, 2015 duty status report (Form CA-17) signed by a
nurse practitioner indicating that appellant could not work due to a stress reaction, and that she
would see her primary physician for work release. She also submitted a February 5, 2015 Form
CA-17 and physician’s note signed by Dr. Wonsock Shin, a Board-certified internist, diagnosing
post-traumatic stress disorder (PTSD) and indicating that she was currently off work, but could
return to work on February 9, 2015.
By letter dated February 12, 2015, OWCP informed appellant that further evidence,
including medical evidence, was necessary to support her claim. Appellant was afforded 30 days
to submit additional evidence.
In a February 12, 2015 progress report and accompanying notes, Dr. Shin noted that
appellant had been having chest pains on and off, which was worse during her work. He
diagnosed PTSD, palpitations, undiagnosed cardiac murmurs, and chest pain. Dr. Shin noted
anxiety from appellant’s traumatic experience and noted that she was to be off work for two
weeks for psychological counseling for PTSD. In a February 20, 2015 note, he reported that he
saw appellant for an initial evaluation on February 5, 2015, that she suffered from an emotional
disorder as a result of injury during her work, that she was seen in the Emergency Department
for initial evaluation, and that she came to his office for further evaluation. Dr. Shin noted that
she was emotionally unstable and in need of rest and medicine for her anxiety and stress, and that
at the present time she was not able to go back to work. In a February 26, 2015 note, he placed
appellant off work for one month.
In a February 21, 2015 note, Gemma I. Sohn, a licensed clinical social worker, indicated
that appellant was seen for an initial evaluation on that date and that she showed signs of PTSD
as a result of an incident at the employing establishment on February 2, 2015. She noted that
appellant’s physical symptoms included tension, anxiety, palpitation, flashbacks, and overall
hypervigilance. Ms. Sohn also noted visible signs of psychological distress including anxiety,
difficulty focusing, heightened irritability, and fear of being alone. She noted that appellant was
seen by Dr. Shin, and attempted to return to work; but she experienced adverse reactions; and her
accelerated return to work seemed to have added to her current difficulties. Ms. Sohn
recommended that appellant continue psychotherapy and gradually increase her work hours.
In a March 4, 2015 statement, appellant indicated that the young man who appeared to
have a mental disability pushed the swing door and ran through the backside window to the clerk

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station, came to her station, hugged her and tried to put his face on her face. She noted that she
tried to back up from him until there was no more space. Appellant stated that she felt trapped,
attacked, and terrified. She noted a customer reacted and firmly told the young man to back
away, which he did, but after a couple of minutes the young man again attempted to approach
her and this time the customer was able to physically sustain him and pulled him back, at which
point the young man ran out of the employing establishment. Appellant noted that, when she
returned to work on February 9, 2015, the swing door was not secured and that when she
submitted a written request, the officer in charge told her to either relocate to a different
workstation, get new job training, or do window duty. She stated that his response made her
nervous so she indicated she would do window duty, but that when she worked window, she kept
an eye on the door and had an insecure and scared feeling. Appellant noted that she saw
Dr. Shin who gave her new medication for chest pain and advised her to seek psychological
counseling.
In a March 17, 2015 report, Dr. Keith Chu, a Board-certified family practitioner,
diagnosed appellant with chest pain, palpitations, anxiety, and hypothyroidism. He noted that
the onset of pain was sudden about six weeks ago and was precipitated by stress and exertion.
In a decision dated March 30, 2015, OWCP denied appellant’s claim as she had not
submitted any medical evidence containing a medical diagnosis in connection with the incidents
described.
On April 19, 2015 appellant requested an oral hearing before an OWCP hearing
representative. She described the incident when she was trapped by the young man who came in
through the swinging doors where she worked, passed three other clerks, and then hugged her.
Appellant described the stress she underwent when she returned to work. She also described her
medical treatments.
In a June 17, 2015 report, Dr. Edward S. Kim, a Board-certified physiatrist, noted that
appellant has been off work from the employing establishment for four months for PTSD. He
diagnosed lumbar radiculopathy -- unchanged. In a July 8, 2015 note, Dr. Kim indicated that
appellant was excused from work from July 9 through August 1, 2014 due to medical reasons,
but would be able to return to work on August 3, 2015.
In a March 31, 2015 report, Dr. Shin noted PTSD, palpitations, and undiagnosed cardiac
murmurs.
In a July 31, 2015 report, Dr. Hei-Jung C. Kim, a Board-certified psychiatrist, noted
appellant’s history and indicated that on February 2, 2015 she was approached by a teenager who
came behind the counter through a swing door and tried to kiss her, and that since then she has
been fearful of working for the employing establishment and does not feel safe. He
recommended gradual return to work, and avoidance of working where she would deal with
strangers. Dr. Kim noted that appellant was attempting to overcome her fears of going back to
the site of the trauma. He listed Axis 1 diagnoses as major depression, recurrent, mild;
generalized anxiety disorder, moderate; PTSD, mild; and panic disorder with agoraphobia, in
remission. For Axis 2, Dr. Kim listed cervical disc disease, paresthesia to right ulnar nerve areas
of right arm/hands; tinnitus, indigestion, bruxism, and constipation; lumbar disc disease; sciatica

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left leg; and paresthesia in left foot. For Axis 3, he listed stress, extreme; injury at work in 2013;
traumatic incident at the employing establishment on February 2, 2015; son’s difficulties,
financial worries, and workers’ compensation claim.
In a July 31, 2015 report, Ms. Sohn, a social worker, indicated that she had seen appellant
on multiple occasions between February 28 and June 27, 2015. She diagnosed major depression,
recurrent, moderate; PTSD, moderate to severe; generalized anxiety disorder; and panic disorder.
Ms. Sohn described appellant’s history of the employment incident. She noted that, at the time
of the initial assessment, appellant showed moderate-to-severe psychosomatic symptoms of
PTSD as a result of the reported incident, and noted that PTSD was characterized by her
reexperiencing intense fear and anxiety, following exposure to a traumatic incident. Ms. Sohn
noted appellant’s psychological distresses included anxiety, difficult in focusing, heightened
irritability, fear of being alone, and overall hypervigilance. She noted that appellant’s financial
status due to her not being able to work remains a contributing factor to the level of anxiety and
depression.
In an August 19, 2015 report, Dr. H. Kim noted that he reviewed the incident of
February 2, 2015. He noted that based upon his discussions with appellant and evaluating
appellant’s condition, it was his professional opinion that the workplace incident resulted in
appellant’s current episode of PTSD as well as major depression, generalized anxiety disorder,
panic disorder and agoraphobia.
In an August 29, 2015 report, Ms. Sohn again listed diagnoses of major depression,
PTSD, generalized anxiety disorder; and panic disorder with agoraphobia. She noted that
appellant was able to work part time and may increase her hours in the future. If all goes well,
Ms. Sohn indicated that appellant should be able to return to her full-time work capacity by the
end of the year without any notable residual effects.
In a decision dated September 30, 2015, the hearing representative affirmed the
March 30, 2015 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an employee within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.5

3

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

4

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

5

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

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
OWCP has accepted that the employment incident of February 2, 2015 occurred when a
young mentally disabled man came into her work area and tried to hug her. The issue is whether
appellant’s PTSD and other medical conditions resulted from the February 2, 2015 incident. The
Board finds that appellant has failed to meet her burden of proof to establish a causal connection
between the conditions for which compensation is claimed and the employment incident.
Appellant has not submitted a well-rationalized report by a physician establishing that her
accepted diagnosis of PTSD is causally related to the accepted February 2, 2015 incident.
Dr. Shin’s reports did not contain a description of the February 2, 2015 incident nor any opinion
addressing causal relationship. Medical evidence submitted to support a claim for compensation
should reflect a correct history, and the physician should offer a medically sound explanation of
how the claimed work event caused or aggravated the claimed condition.8 Dr. E. Kim in his
June 17, 2015 report also provided diagnoses and excused appellant from work, but offered no
opinion regarding causal relationship. Similarly, Dr. Chu only gave diagnoses and did not
address the employment incident. As such, lacking a rationalized medical opinion explain causal
relationship, these reports are of limited probative value.9
Dr. H. Kim did address the incident when discussing appellant’s history, and also stated
multiple factors caused her PTSD and generalized anxiety, including the February 2, 2015
incident. In his August 19, 2015 report, he stated that he reviewed the incident of February 2,
2015 and that based upon his discussions with appellant and medically evaluating appellant’s
condition, it was his professional opinion that the workplace incident resulted in appellant’s
current episode of PTSD as well as major depression, generalized anxiety disorder, panic
disorder and agoraphobia. Although Dr. Kim’s report is generally supportive of causal
relationship, he does not provide adequate medical rationale explaining the basis of his opinion
6

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

7

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

8

D.D., Docket No. 13-1517 (issued April 14, 2014).

9

Id.

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regarding causal relationship. He did not explain the process by which appellant’s accepted
employment incident caused the diagnosed condition and why the condition would not be due to
the other multiple nonwork factors that he listed.10 A mere conclusion without the necessary
rationale explaining how and why the physician believes that a claimant’s accepted exposure
could result in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.11
The February 2, 2015 CA-17 form from a nurse practitioner indicated that appellant
could not return to work due to a stress reaction. This evidence, however, has no probative value
regarding causal relationship as nurse practitioners are not considered physicians as defined
under FECA.1212
Ms. Sohn addressed appellant’s employment factors. However, she is not a physician but
is a licensed social worker. It is well established that a social worker is not a physician under
FECA and therefore her opinions are of no probative medical value.13
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an emotional condition causally related to her accepted employment
incident of February 2, 2015, she has failed to meet her burden of proof to establish a claim for
compensation.
The Board finds that counsel’s arguments that the hearing representative did not address
the medical evidence submitted at and after the hearing is without merit, as these reports were
noted in his decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on February 2, 2015.

10

J.S., Docket No. 14-818 (issued August 7, 2014).

11

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

12

N.F., Docket No. 16-741 (issued July 19, 2016). The term physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. 5 U.S.C. § 8102(2); L.D., 59 ECAB 648 (2008) (a nurse practitioner is not considered a
physician as defined under FECA).
13

W.C., Docket No. 15-1280 (issued November 13, 2015); R.W., Docket No. 14-1890 (issued February 11, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2014 is affirmed.
Issued: September 2, 2016
Washington, DC

Christopher J. Godfrey, 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
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hilo, HI, Employer
__________________________________________

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

Docket No. 20-0445
Issued: September 2, 2021

Case Submitted on the Record

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

JURISDICTION
On December 19, 2019 appellant filed a timely appeal from an October 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $14,852.67 for which he was without fault, because he concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
for the period November 1, 2013 through July 20, 2019, without an appropriate offset; (2) whether
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the October 18, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

OWCP properly denied waiver of recovery of the overpayment; and (3) whether it properly
required recovery of the overpayment by deducting $332.56 from appellant’s continuing
compensation payments, every 28 days.
FACTUAL HISTORY
On November 12, 2003 appellant, then a 52-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his neck and back in a motor vehicle accident while in
the performance of duty. His supervisor indicated that appellant’s retirement coverage was under
the Federal Employees Retirement System (FERS). On January 5, 2004 OWCP accepted the claim
for a concussion with brief loss of consciousness, post-concussion syndrome, cervical strain with
radiculopathy, lumbar radiculopathy, tension headaches from the cervical strain, and depression
and anxiety. It paid appellant wage-loss compensation on the supplemental rolls commencing
December 12, 2003 and on the periodic rolls commencing March 31, 2004.
In an April 6, 2013 letter, OWCP informed appellant that its records indicated that he was
approaching the minimum age at which an individual is eligible to receive SSA retirement benefits.
It explained that FECA requires that an individual’s compensation benefits be reduced if that
individual is also receiving SSA age-related retirement benefits, and that failure to report the
receipt of such retirement benefits could result in an overpayment, which could be subject to
recovery.
On July 22, 2016 OWCP received a FERS/SSA dual benefits calculation worksheet, noting
appellant’s SSA benefit rates with and without FERS commencing November 2013,
December 2014, and December 2015.
An April 23, 2019 letter from the employing establishment indicated that appellant was
receiving FECA compensation benefits and was eligible to receive SSA age-related retirement
benefits. The employing establishment requested that OWCP contact SSA to determine if
appellant’s benefits should be reduced by the FERS offset and to determine if an overpayment
existed because appellant’s FERS offset had not been applied.
On June 21, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form
for its completion.
On June 26, 2019 SSA completed the dual benefits calculation form, listing appellant’s
SSA benefit rates with a FERS offset and without a FERS offset from November 2013 through
December 2018. Beginning November 2013, the SSA rate with FERS was $1,244.90 and without
FERS was $1,036.90. Beginning December 2013, the SSA rate with FERS was $1,263.90 and
without FERS was $1,052.90. Beginning December 2014, the SSA rate with FERS was $1,284.90
and without FERS was $1,070.90. Beginning December 2015, the SSA rate with FERS was
$1,284.90 and without FERS was $1,070.90. Beginning December 2016, the SSA rate with FERS
was $1,289.00 and without FERS was $1,074.00. Beginning December 2017, the SSA rate with
FERS was $1,314.00 and without FERS was $1,095.00. Beginning December 2018, the SSA rate
with FERS was $1,351.50 and without FERS was $1,125.50.
In a July 31, 2019 letter, OWCP indicated that it had determined that appellant had been
receiving both FECA and SSA age-related retirement benefits at the same time, resulting in a
prohibited dual benefit. It explained that his FECA compensation would be offset in the amount
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of $208.62 every 28 days and that his FECA compensation payments every 28 days would be
$3,325.58 after the SSA offset.
An August 1, 2019 FERS offset calculation worksheet noted each alleged period of
overpayment and provided calculations, which resulted in a total overpayment in the amount of
$14,852.67 during the period November 1, 2013 through July 20, 2019.
In a preliminary determination dated August 13, 2019, OWCP informed appellant that he
received an overpayment of compensation in the amount of $14,852.67 because the SSA/FERS
offset was not applied to payments for the period November 1, 2013 through July 20, 2019. It
determined that he was without fault in the creation of the overpayment because he relied on
improper information given in writing by OWCP or by another government agency, which he had
reason to believe was connected with the administration of benefits. OWCP requested that
appellant submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine
a fair repayment method and advised him that he could request a waiver of recovery of the
overpayment. It requested financial information, including copies of income tax returns, bank
account statements, bills, pay slips, and any other records to support income and expenses. OWCP
advised appellant that it would deny waiver if he failed to furnish the requested financial
information within 30 days. It provided him with an overpayment action request form and further
notified appellant that within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
On September 13, 2019 appellant requested that OWCP make a decision based on the
written evidence regarding possible waiver of recovery of his overpayment. He indicated that he
disagreed with the amount of the overpayment because he had not applied for Social Security
retirement benefits until about a year after his 62nd birthday, and noted that he was not given back
pay for the payments he could have received, and that he was not aware that he was being overpaid.
Appellant additionally requested wavier of recovery of the overpayment because he was without
fault in its creation.
In a September 13, 2019 Form OWCP-20, appellant indicated that his total household
monthly income was $5,219.00, which included $2,556.00 in SSA benefits and $2,663.00 in other
benefits, he did not list his FECA benefit of $3,325.58. He listed his total monthly household
expenses as $4,432.77, which included $1,032.77 in rent or mortgage, including property tax,
$1,200.00 in food, $400.00 in clothing, $1,000.00 in utilities, and $800.00 in other expenses.
Appellant listed his total monthly debts as $2,681.82, which included $100.00 to an online
payment company, $250.00 to a bank, $145.00 to another bank, $200.00 to the military exchange
store, $150.00 to a credit card company, $100.00 to another credit card company, $150.00 to a
clothing company, $100.00 to another clothing company, $150.00 to a car company, $1,000.00 to
another car company, $103.00 to a funeral home, and $333.82 to a timeshare. He indicated that
he pays a $1,032.77 monthly mortgage for real estate other than his family home with an
outstanding principal of $143,750.99. Appellant also listed his total funds as $10,291.60, which
included $160.00 in cash, $1,760.00 in a checking account, $2,525.00 in a savings account, and
$5,846.60 in stocks and bonds.
By decision dated October 18, 2019, OWCP finalized the August 13, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$14,852.67 for the period November 1, 2013 through July 20, 2019 because it had failed to offset
his compensation payments by the portion of his SSA benefits that were attributable to federal
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service. It further found that he was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because the evidence of record failed to establish that
recovery of an overpayment would defeat the purpose of FECA or would be against equity and
good conscience. OWCP found that recovery of an overpayment would not defeat the purpose of
FECA because there was no evidence, which indicated that, after deducting appellant’s ordinary
and necessary living expenses from his income, he would have $50.00 or less left, and that he did
not provide a list of assets to determine whether his assets exceed the resource base for an
individual with a spouse. It found that it would recover the overpayment by deducting $332.56
every 28 days from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $14,852.67 for the period November 1, 2013 through July 20,
2019 for which he was without fault, as he concurrently received SSA age-related retirement
benefits and FECA wage-loss compensation without appropriate offset.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA age-related retirement benefits attributable to federal service. 7 The evidence of record does
establish that appellant received SSA age-related retirement benefits that were attributable to his

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
6

FECA Bulletin No. 97-09 (issued February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31,
2019); N.B., Docket No. 18-0795 (issued January 4, 2019).
7

S.M., Docket No. 20-0152 (issued August 10, 2020); see also N.B., id.; A.C., Docket No. 18-1550 (issued
February 21, 2019).

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own federal service during a period of time that he received FECA wage-loss compensation. The
fact of the overpayment is, therefore, established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated.
OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. SSA provided appellant’s benefit rates with
FERS and without FERS during the specific period November 1, 2013 through July 20, 2019.
OWCP provided its calculation for each relevant period based on SSA’s worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2013 through July 20, 2019 and finds that an overpayment of compensation
in the amount of $14,852.67 has been established.
In an overpayment action request form, received by OWCP on September 17, 2019,
appellant indicated that the amount of the overpayment was in error and he disagreed with the
amount of the overpayment because he did not apply for SSA benefits until about a year after his
62nd birthday. Appellant did not, however, submit any evidence substantiating that he did not
receive SSA age-related retirement benefits as of November 2013. OWCP, therefore, properly
relied on SSA’s records to determine that the overpayment began in November 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”8 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.9
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.10 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
and necessary living expense and, also, if the beneficiary’s assets do not exceed a specified amount

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.438.

10

Id. at §§ 10.434-10.437.

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determined by OWCP from data provided by the Bureau of Labor Statistics. 11 Therefore, for
waiver of recovery of the overpayment under the defeat the purpose of FECA standard, appellant
must show that he or she needs substantially all of his or her current income to meet current
ordinary and necessary living expenses, and that assets do not exceed the resource base. 12 An
individual is deemed to need substantially all of his or her current income to meet current ordinary
and necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.14
The evidence of record establishes that appellant’s income exceeds his ordinary expenses
by more than $50.00.15 The Board notes that in listing his income appellant did not include his
FECA payments, with this adjustment appellant’s total monthly income totaled $8,544.58, while
his total monthly expenses and debts totaled $7,114.59. Appellant, therefore, did not need
substantially all of his monthly income to meet current ordinary and necessary living expenses.
The Board also notes that appellant’s listed expenses indicate that he had expenses related to assets,
such as property, aside from his primary home, which were unreported and undocumented.
Appellant, therefore, had not established that recovery of the overpayment would defeat the
purpose of FECA.16 There is also no evidence to support that appellant gave up a valuable right
or changed his position for the worse, in reliance on his FECA compensation. Appellant, therefore,
did not establish that recovery of the overpayment was against equity and good conscience. 17

11

Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Chapter 6.400.4a(2).
12

Id.

13

Id.

14

Id. at § 10.436.

15

Supra note 11.

16

Id.

17

See R.D., Docket No. 19-1598 (issued April 17, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020).

6

As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP properly denied waiver of recovery. 18
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 19
Section 10.441(a) of the regulations provides that when an overpayment has been made to
an individual who is entitled to further payments, the individual shall refund to OWCP the amount
of the overpayment as soon as the error is discovered or his or her attention is called to same. If
no refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship. 20
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in setting
a rate of recovery of $332.56 each 28 days from appellant’s continuing compensation payments.
The record indicates that appellant’s monthly income exceeds his reported monthly expenses by
over $1,000.00 per month. OWCP, therefore, did not abuse its discretion in finding that he should
repay the overpayment at the rate of $332.56 per compensation period. 21
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $14,852.67 for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period November 1, 2013 through July 20, 2019, without an appropriate offset. The Board

18

Id.

19

See Lorenzo Rodriguez, 51 ECAB 295 (2000).

20

20 C.F.R. § 10.441(a).

21

N.B., supra note 6; N.S., Docket No. 14-2081 (issued February 12, 2015).

7

further finds that OWCP properly denied waiver of recovery of the overpayment, and required
recovery by deducting $332.56 every 28 days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-545
Issued: January 14, 2010

Case Submitted on the Record

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

JURISDICTION
On December 19, 2008 appellant filed a timely appeal from the November 21, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition as a
result of a July 11, 2008 work incident.
FACTUAL HISTORY
On October 3, 2008 appellant, then a 49-year-old compliance safety and health officer,
filed a traumatic injury claim alleging that on July 11, 2008, while conducting an inspection, she
was repeatedly yelled at by an employee of Shamrock Signs, Tim McPherson, who was the lead
worker. She noted that Mr. McPherson did not want her to cite him for failing to wear a safety

harness and begged her to give him only a warning. Mr. McPherson refused her request for
names and other information and then other employees also refused to provide her with
information. Only after appellant stated she would obtain a warrant did Mr. McPherson and the
other employees talk with her. Afterwards, he kept making comments that her employer was a
joke, shouted obscenities at her and threw objects around which frightened her. Appellant stated
that the incident aggravated her preexisting anxiety disorder.
In a July 16, 2008 letter to appellant, the president of Shamrock Building Services
forwarded various reports on safety issues. He addressed the July 11, 2008 incident in which
Mr. McPherson was cited for not wearing a safety harness while working out of an elevated
bucket truck. He stated that actions were taken to prevent a reoccurrence. The president had
informed his employees that company job site inspections would be increased to ensure
compliance with work site safety rules. He also apologized for the behavior of Mr. McPherson
who had expressed regret about the violation and in losing his temper.
Appellant received treatment from Dr. Paul Bernstein, Ph.D., a clinical psychologist. The
record contains reports from Dr. Bernstein, who advised on July 18, 2008 that appellant was
finding it increasingly difficult to return to work. In an October 6, 2008 attending physician’s
report, he discussed of the July 11, 2008 incident, which he stated contributed to appellant’s
preexiting anxiety condition by aggravation. Appellant also submitted a November 3, 2008
report by Dr. Mildred Lane.1
By decision dated November 21, 2008, the Office denied appellant’s claim for an
emotional condition. It accepted the July 11, 2088 incident as a compensable factor; however,
the Office found that the medical reports of Dr. Bernstein did not support a causal relationship
between appellant’s current condition and the July 11, 2008 work incident.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.3

1

It is not clear from the record whether Dr. Lane is a clinical psychologist under the Federal Employees’
Compensation Act. See Jacqueline E. Brown, 54 ECAB 583 (2003).
2

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

3

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

2

Appellant has the burden of establishing by the weigh of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which she believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
If a claimant does implicate a factor of employment, the Office should then determine
whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the record establishes the truth of the matter asserted, the
Office must based its decision on an analysis of the medical evidence.6
ANALYSIS
Appellant alleged that the July 11, 2008 incident aggravated her preexiting anxiety. The
Office found that she established that an incident occurred in which Mr. McPherson lost his
temper, but that she did not prove that he verbally abused or threatened her use obscenities or
making threats towards her.
The Board has held that emotional reactions to situations in which an employee is trying
to meet his or her position requirements are compensable under the principles of Cutler.7 The
record establishes that appellant was in the performance of her federal duties as a safety
compliance officer when she was repeatedly yelled at by Mr. McPherson, a lead worker from
Shamrock Building Services, Incorporation. Appellant noted that he did not want her to cite him
for failing to wear a safety harness. When she request information, Mr. McPherson and other
employees refused to provide names or talk to her. After appellant stated that she would obtain a
warrant, the employees at Shamrock Building Services, spoke to her. However, Mr. McPherson
shouted obscenities and threw objects around which frightened her. The July 16, 2008 letter
from the president of Shamrock Building Services, acknowledged that Mr. McPherson had
violated safety codes and had lost his temper on July 11, 2008 when questioned by appellant.
The Board finds that appellant has established a compensable factor of employment under
Cutler. Appellant was performing her duties as a compliance safety and health officer when the
July 11, 2008 incident arose.
Appellant must also submit rationalized medical evidence in support of an emotional
condition caused or aggravated by the accepted employment factor.8 The Office found that
Dr. Bernstein did not provide a well-reasoned explanation to support a causal relationship
between appellant’s current medical condition and the work sight inspection she performed on
July 11, 2008 at Shamrock signs. However, in making this determination, it found that the
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Peter D. Butt, Jr., 56 ECAB 117 (2004); Lillian Cutler, supra note 2.

8

Kathleen D. Walker, 43 ECAB 603 (1991).

3

evidence did not support that she was verbally abused or physically threatened by
Mr. McPherson. However, Dr. Bernstein noted a history of the incident and stated that it had
aggravated appellant’s preexisting anxiety disorder. The decision of the Office focused too
narrowly on the question of verbal abuse or physical threat and not on appellant’s performance
of her job under Cutler. On remand the Office shall further develop the medical evidence as
necessary and make an appropriate decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 21, 2008 is set aside and this case is remanded for
further action consistent with this decision.
Issued: January 14, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 19-0363
Issued: July 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 10, 2018 appellant filed a timely appeal from a June 22, 2018 merit decision
and an October 23, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her
cervical, lumbar, thoracic, and bilateral lower extremity conditions were causally related to the
accepted December 16, 2015 employment incident; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 4, 2016 appellant, then a 60-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on December 16, 2015, she sustained contusions and bruises to her left
hip and buttocks when she slipped on ice and fell to the ground while in the performance of duty.
In an initial evaluation report dated March 17, 2016, Dr. John M. Tyler, Board-certified in
physical medicine and rehabilitation, indicated that he had treated appellant for two previous
injuries that she sustained at work. He described a November 1999 cervical injury and May 4,
2001 lumbar spine injury. Dr. Tyler related that appellant’s third injury occurred on December 16,
2015 when she slipped and fell on black ice, landing on her left elbow and hip, while working as
a letter carrier. Upon physical examination of appellant’s cervical spine, he observed segmental
dysfunctions on the left at C3 and at C5 and light palpation over the myofascial components in the
posterolateral cervical spine. Examination of appellant’s thoracic spine revealed significant acute
spasm and a few localized trigger points from T7 to approximately T12. Dr. Tyler reported that
examination of appellant’s low back demonstrated significant abnormality with an upslope of the
left posterior-superior iliac spine over the right and no leg length discrepancy. He diagnosed
segmental dysfunctions in the cervical and thoracic spine (left C3, C5, and T7), localized spasm
with active trigger point formation in the paraspinal muscles and iliocostalis thoracic muscles on
the left between T7 and T12, severe pelvic obliquity with upslope of the left posterior-superior
iliac spine over the right secondary to increased myofascial tone and spasms, and possible
reaggravation of lumbar facet pathology/rule out disc herniation in the lower lumbar spine.
Dr. Tyler opined that 100 percent of appellant’s current symptomatology that extended from the
mid-thoracic to lower-thoracic spine would be related to this new injury, 75 percent of appellant’s
current paralumbar pain was related to the new injury, and 35 percent of appellant’s current
symptomatology in the superomedial parascapular and paracervical regions would be related to
the new injury.
A lumbar spine magnetic resonance imaging (MRI) scan report dated March 18, 2016
showed mild degenerative changes of the L3-4 disc space with a small posterior left paracentral
desiccated disc herniation, moderate degenerative changes of the L5-S1 disc space with loss of
weight, and mild degenerative changes of the L4-5 disc space without evidence of nerve root
impingement or cauda equina compression.
Appellant was also treated by Dr. Daniel Barbuto, a chiropractor. In an initial status report
dated March 28, 2016, Dr. Barbuto described the December 16, 2015 work incident and provided
examination findings of appellant’s cervical and lumbar spine. He diagnosed cervical through
gluteal myofascial strains, with associated axial mechanical dysfunctions and sacroiliac
dysfunction with associated pelvic unleveling/obliquity. Dr. Barbuto continued to treat appellant
and provided status reports dated March 30 to May 11, 2016.
Dr. Tyler continued to treat appellant and provided a note dated April 4, 2016, which
related that appellant was treated with a second trigger point injection after a December 16, 2015
employment injury.
In a development letter dated June 2, 2016, OWCP noted that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work

2

and was therefore administratively approved for payment of a limited amount of medical expenses.
It reported that the medical evidence addressing her claim had not been formally considered and
that additional factual and medical evidence was necessary to establish her claim. OWCP
requested that appellant provide additional factual and medical evidence to establish her claim and
also provided a questionnaire for completion. It afforded her 30 days to provide the necessary
factual information and medical evidence.
OWCP received additional progress notes from Dr. Tyler dated April 11 through 25, 2016.
He indicated that appellant returned for evaluation and trigger point injections in her thoracic and
lumbar spine. Appellant continued to complain of soreness in the lower left parathoracic region
posteriorly and extending into the mid-axillary line.
By decision dated July 6, 2016, OWCP denied appellant’s claim. It accepted that the
December 16, 2015 employment incident occurred as alleged, but denied the claim because the
evidence of record did not establish a valid medical diagnosis in connection with the accepted
employment incident. OWCP therefore found that appellant had failed to establish the medical
component of fact of injury. It concluded, therefore, that she had not met the requirements to
establish an injury as defined by FECA.
On December 6, 2016 appellant requested reconsideration. She asserted that she suffered
from several medical issues due to the December 16, 2015 employment incident, including plantar
fasciitis on the left, sciatic nerve on both sides of the lower back, stiff neck, pressure, and pain,
right and left arm symptoms, and left shoulder symptoms.
OWCP subsequently received a letter dated August 16, 2016 by Dr. Tyler. Dr. Tyler
indicated that his March 17, 2016 report clearly outlined the events of the December 16, 2015
employment incident and his impressions based upon that examination.
By decision dated January 26, 2017, OWCP denied modification of the July 6, 2016
decision.
On April 24, 2017 appellant requested reconsideration.
In a report dated March 27, 2017, Dr. Jack L. Rook, Board-certified in pain medicine and
physical medicine and rehabilitation, related that appellant had worked for the employing
establishment as a letter carrier since 1998 and had two work-related injuries in November 1999
and May 2001, which resulted in chronic neck and back pain. He related that appellant’s
conditions were stable until a December 16, 2015 traumatic event when she slipped and fell on
black ice while delivering mail. Dr. Rook reported that “as a result of this acute injury she
developed a worsening of chronic pain involving her neck, upper back, and low back.” He also
noted new symptoms of bilateral leg pain and sciatica. Dr. Rook explained that prior to the
December 16, 2015 employment incident, appellant had experienced mild, intermittent low back
pain and fairly constant neck and upper back muscular discomfort. He reported that after the
December 16, 2015 slip and fall injury, appellant has experienced a “compelling increase in neck,
upper, and lower back pain.”
Dr. Rook examined appellant’s lumbar spine and noted severe tenderness with palpation
of bilateral lumbar paraspinal muscles and underlying facet joints. He also noted moderate-to3

severe tenderness of the bilateral sacroiliac joints. Straight leg raise testing was negative
bilaterally. Pinprick sensation was intact in all lower extremity dermatomes and lower extremity
motor strength was 5/5. Dr. Rook reported that examination of appellant’s upper extremities
revealed normal grip strength and motor strength. Examination of appellant’s neck revealed
palpable spasm and tenderness involving the left more than right-sided paracervical, trapezius, and
parathoracic muscles. Dr. Rook diagnosed permanent aggravation of cervical myofascial pain
syndrome, permanent aggravation of thoracic myofascial pain syndrome, permanent aggravation
of lumbar myofascial pain syndrome, permanent aggravation of lumbar degenerative disc disease,
and bilateral lower extremity sciatica. He opined that appellant sustained an acute injury while at
work on December 16, 2015, which resulted in the above diagnoses.
Dr. Rook explained that the slip and fall on ice caused appellant’s head to “jerk violently
to her left, with forces then transferred across her shoulders and upper back.” He noted that the
left hip impact caused traumatic forces to spread to her low back and appellant developed
immediate low back pain with right lower extremity sciatica. Dr. Rook also pointed out that
appellant developed a marked increase in upper and lower back pain after the slip and fall injury
and new symptoms of bilateral lower extremity sciatica. He concluded that appellant sustained a
“permanent aggravation” of her neck and back conditions.
By decision dated July 12, 2017, OWCP denied modification of the January 26, 2017
decision.
On December 14, 2017 appellant requested reconsideration. She alleged that Dr. Tyler
provided medical diagnoses of her conditions and established fact of injury.
In a report dated November 8, 2017, Dr. Tyler related that he had treated appellant over the
years for pain management following a November 1999 lumbar injury. He noted the
December 16, 2015 employment incident and referenced his initial evaluation findings. Dr. Tyler
disagreed with OWCP’s finding that he had not identified a medical diagnosis or clearly explained
causal relationship. He reported that appellant had diagnoses of segmental dysfunction of the
cervical and thoracic spine, localized muscle spasms with active trigger point formation in the
paraspinal muscles and iliocostalis thoracic muscles on the left between T7 and T12, severe pelvic
obliquity with upslope of the left posterior-superior iliac spine over the right, and possible reaggravation of lumbar facet pathology/rule out disc herniation in the lower lumbar spine. Dr. Tyler
explained that a portion of appellant’s conditions were an aggravation of a preexisting condition,
which were worsened either temporarily or permanently. He reported that appellant’s mid-thoracic
pain was 100 percent related to the December 2015 employment injury.
By decision dated March 8, 2018, OWCP modified its July 12, 2017 decision regarding
fact of injury and found that the new medical evidence established diagnosed conditions.
However, it denied appellant’s claim finding insufficient medical evidence to establish causal
relationship between her diagnosed medical conditions and the accepted December 16, 2015
employment incident.
On March 27, 2018 appellant requested reconsideration. She asserted that Dr. Rock
provided medical evidence to establish causal relationship between her diagnosed conditions and

4

the December 16, 2015 employment injury. Appellant resubmitted Dr. Rook’s March 27, 2017
report and Dr. Tyler’s reports dated March 17 to May 9, 2016.
By decision dated June 22, 2018, OWCP denied modification of the March 8, 2018
decision. It found that the medical evidence submitted failed to establish that appellant’s
diagnosed conditions were causally related to the accepted December 16, 2015 employment
incident.
On July 31, 2018 appellant requested reconsideration. She alleged that Dr. Rook, in his
March 27, 2017 report, adequately explained the causal relationship between her diagnosed
cervical strain, thoracic strain, permanent aggravation of lumbar degenerative disease, and bilateral
lower extremity sciatica and the accepted December 16, 2015 employment incident. She
resubmitted Dr. Rook’s March 27, 2017 report and Dr. Tyler’s reports dated March 17, 2016 to
November 8, 2017.
By decision dated October 23, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.6
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7 Second, the employee must submit evidence, generally

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

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only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.10 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that her cervical,
lumbar, thoracic, and bilateral lower extremity conditions were causally related to the accepted
December 16, 2015 employment incident.
In support of her claim, appellant submitted a series of reports from Dr. Tyler dated
March 17, 2016 through November 8, 2017. In his initial examination report, he discussed
appellant’s history, including her previous cervical and lumbar injuries, and accurately described
the December 16, 2015 employment incident. Dr. Tyler reported examination findings related to
appellant’s cervical, thoracic, and lumbar spines. He diagnosed segmental dysfunctions in the
cervical and thoracic spine (left C3, C5, and T7), localized spasm with active trigger point
formation in the paraspinal muscles and iliocostalis thoracic muscles on the left between T7 and
T12, severe pelvic obliquity with upslope of the left posterior-superior iliac spine over the right
secondary to increased myofascial tone and spasms, and possible reaggravation of lumbar facet
pathology/rule out disc herniation in the lower lumbar spine. Dr. Tyler opined that 100 percent of
appellant’s current symptomatology that extended from the mid-thoracic to lower-thoracic spine
would be related to this new injury, 75 percent of appellant’s current paralumbar pain was related
to the new injury, and 35 percent of appellant’s current symptomatology in the superomedial
8

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
9

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
11

James Mack, 43 ECAB 321 (1991).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.S., Docket No. 19-0167 (issued June 21, 2019).

6

parascapular and paracervical regions would be related to the new injury. In a November 8, 2017
report, he further explained that appellant’s mid-thoracic symptomatology was 100 percent related
to the December 2015 employment incident and that a portion of appellant’s other conditions were
an aggravation of her preexisting conditions.
Although Dr. Tyler opined that the accepted December 16, 2015 employment incident was
directly related to some of appellant’s medical conditions and had aggravated appellant’s
preexisting cervical and lumbar conditions, he did not explain how the diagnosed conditions were
causally related to or worsened by the accepted employment incident. The Board has held that a
physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the employment incident described had caused or contributed to
appellant’s diagnosed medical conditions.13 Because Dr. Tyler has not provided a reasoned
opinion explaining how the December 15, 2016 employment incident caused or aggravated
appellant’s lumbar, cervical, or thoracic conditions, his reports are insufficient to establish her
claim. The need for rationalized medical opinion evidence is particularly important in this case
because appellant had previously injured her cervical and lumbar spine.14
Appellant was also treated by Dr. Rook. In a report dated March 27, 2017, he noted
appellant’s two previous injuries and described that on December 16, 2015 she suffered a third
injury when she slipped and fell at work. Dr. Rook provided examination findings and diagnosed
permanent aggravation of cervical myofascial pain syndrome, permanent aggravation of thoracic
myofascial pain syndrome, permanent aggravation of lumbar myofascial pain syndrome,
permanent aggravation of lumbar degenerative disc disease, and bilateral lower extremity sciatica.
He opined that appellant sustained an acute injury while at work on December 16, 2015 and a
“permanent aggravation” of her neck and back conditions. Dr. Rook further explained that when
appellant fell down, her head jerked violently to the left and forces transferred across her shoulders
and upper back. He noted that appellant experienced immediate low back pain and right lower
extremity sciatica. Dr. Rook also reported that appellant had a marked increase in back pain after
the December 16, 2015 incident and new symptoms of bilateral lower extremity sciatica.
While Dr. Rook provided an affirmative opinion on causal relationship, the Board finds
that he did not adequately explain how the December 16, 2015 employment incident caused
appellant’s thoracic and bilateral lower extremity conditions or aggravated appellant’s preexisting
cervical and lumbar conditions. A medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.15 Dr. Rook did not provide sufficient medical rationale of how appellant’s
December 16, 2015 slip and fall at work caused, contributed to, or aggravated her lumbar, thoracic,
or cervical conditions. Instead, he based his opinion on the fact that appellant experienced
immediate pain and an increase in symptoms after the December 16, 2015 employment incident.
The Board has held that an opinion that a condition is causally related because the employee was

13

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

14

See B.R., Docket No. 16-0456 (issued April 25, 2016).

15

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

7

asymptomatic before the injury, without adequate rationale, is insufficient to establish causal
relationship.16 Accordingly, Dr. Rook’s report is insufficient to establish appellant’s claim.
OWCP also received chiropractor reports from Dr. Barbuto. In reports dated March 28 to
May 11, 2016, Dr. Barbuto provided examination findings and diagnosed cervical through gluteal
myofascial strains with associated axial mechanical dysfunctions and sacroiliac dysfunction with
associated pelvic unleveling/obliquity. Under FECA the term physician includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.17 OWCP’s
regulations at 20 C.F.R. § 10.5(bb) have defined subluxation as an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrable on any x-ray film to an individual trained in the reading of x-rays.18 If the diagnosis
of a subluxation as demonstrated by x-ray is not established, the chiropractor is not a physician as
defined under FECA and his or her report is of no probative value to the medical issue presented.19
The Board finds that the evidence of record does not include an x-ray establishing the diagnosis
of subluxation. Accordingly, Dr. Barbuto is not considered a physician under FECA and his
reports, therefore, are of no probative value to establish appellant’s claim.
The March 18, 2016 lumbar spine MRI scan report also failed to establish appellant’s claim
as diagnostic reports do not offer an opinion regarding the cause of an employee’s condition and
thus lack probative value on the issue of causal relationship.20
In order to obtain benefits under FECA an employee has the burden of proof to establish
the essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.21 Because appellant has not provided such evidence demonstrating that her cervical,
thoracic, lumbar, and bilateral lower extremity conditions were causally related to the accepted
December 16, 2015 employment incident, she has not met her burden of proof to establish her
traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

16

R.V., Docket No. 18-1037 (issued March 26, 2019); M.R., Docket No. 14-0001 (issued August 27, 2014).

17

5 U.S.C. § 8101(2).

18

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121 (1990).

19

See R.P., Docket No. 18-0860 (issued December 4, 2018); Mary A. Ceglia, 55 ECAB 626 (2004); Jack B. Wood,
40 ECAB 95, 109 (1988).
20

See K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019).

21

Supra note 4.

8

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.22 The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.23
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.24
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.25 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.26 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.27
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of her July 31, 2018 reconsideration request, appellant submitted a statement
alleging that Dr. Rook adequately explained the causal relationship between her diagnosed
conditions and the December 16, 2015 employment injury. The Board finds, however, that OWCP
reviewed Dr. Rook’s March 27, 2017 report in its June 22, 2018 decision and properly determined
that it was insufficient to establish causal relationship. Appellant’s argument, therefore, in her
reconsideration request is insufficient to warrant reopening of her claim for further merit review.
The Board, therefore, finds that in her July 31, 2018 reconsideration request, appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered. Thus, appellant is not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).

22

5 U.S.C. § 8128(a).

23

Id.

24
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
25

20 C.F.R. § 10.607(a).

26

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

27

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

9

The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered.
Appellant submitted Dr. Rook’s March 27, 2017 report and Dr. Tyler’s reports dated
March 17, 2016 to November 8, 2017, which were previously considered by OWCP. The Board
has held that the submission of evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case.28 Thus, appellant is not entitled to a review
of the merits of her claim based on the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3).
Accordingly, appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed cervical, lumbar, thoracic, and bilateral lower extremity conditions were causally
related to the accepted December 16, 2015 employment incident. The Board also finds that OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5
U.S.C. § 8128(a).

28

E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

29
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

10

ORDER
IT IS HEREBY ORDERED THAT the October 23 and June 22, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 18, 2019
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Tracy, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-700
Issued: September 24, 2008

Case Submitted on the Record

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

JURISDICTION
On January 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 2 and November 21, 2007 merit decisions denying his claim for
an employment-related May 21, 2007 injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on May 21, 2007.
FACTUAL HISTORY
On May 23, 2007 appellant, then a 57-year-old distribution process worker, filed a
traumatic injury claim alleging that he sustained an employment-related back injury on May 21,
2007 at 8:00 a.m.1 Regarding the cause of the injury, appellant stated, “I was stowing material,
1

Appellant’s regular work hours were 7:00 a.m. to 2:30 p.m., Monday through Friday.

weight approximately [two pounds]. It was located on a cart at stomach level. Took material &
scanned it & then stooped over to pull out a section to put the material away when I felt a sharp
stinging in lower center of my back.” The alleged injury occurred in warehouse 18 at an
employing establishment facility in Tracy, CA. Appellant stopped work on May 21, 2007. An
employing establishment official stated on the same form, “Unsure if employee hurt his back in
performance of duty because of the time difference. Need further development to determine if
injury occurred during weekend or at work.”2
In a May 29, 2007 letter, the Office requested that appellant submit additional factual and
medical evidence in support of his claim.3 It advised him that he had 30 days from the date of
the letter to submit this information. Appellant submitted numerous medical reports describing
the treatment of his back since May 21, 2007. The reports revealed that he first sought medical
treatment on May 21, 2007 and that he consistently reported to his physicians that the injury
occurred on that day.4
Appellant submitted a May 21, 2007 statement in which he indicated that he was “doing
stowing” in warehouse 18 at about 8:00 a.m. and his “lower middle back on right side started to
hurt and just got tighter and stiff.” In a May 30, 2007 statement, Catherine Carter, a coworker,
indicated:
“At approximately 8:30 a.m. [appellant] complained that his back was bothering
him. I talked to him again at approximately 10:00 a.m. He said that his back was
still bothering him and that he needed to use the telephone to talk to a supervisor.”
In a June 4, 2007 statement, Arthur Badillo, the chief of appellant’s branch, indicated that
an attached work count accountability report showed that on May 21, 2007 appellant
electronically processed the first work item he selected at 9:14 a.m. and that he electronically
processed that same item at 10:17 a.m.5 Mr. Badillo stated:
“At approximately 11:45 [a.m.], on May 21, 2007, [appellant] reported a mishap.
Prior [to] reporting the mishap, he had [sought] advice from one of his coworkers
at approximately 8:00, stating to her that his back was bothering him, she advised
him to sit for awhile until he felt better. After awhile he had gone back to work.
Then at 11:45 [a.m.] he came back to his fellow coworker and asked her to call a
supervisor because his back was really starting to bother him.”

2

Kim Huit was listed as appellant’s supervisor on the form, but it is unclear whether Ms. Huit provided this
statement.
3

The Office asked appellant to provide a detailed description of how the injury occurred and to state where he
was and what he was doing at the time of the injury.
4

In several of the reports, appellant reported to his physician that the injury occurred at 8:00 a.m. on
May 21, 2007. In other reports, he stated that on May 21, 2007 he felt pain in his low back due to twisting his back
and stooping to lift an object.
5

Mr. Badillo stated that the document actually listed the selection time as 10:14 a.m. and the processing time as
11:17 a.m. but that 9:14 a.m. and 10:17 a.m. were the equivalent times in the time zone of appellant’s work site.

2

In a June 28, 2007 joint statement, Ms. Huit and another supervisor, Joe Munoz, noted
that on May 21, 2007 the morning staff meeting ended at 7:25 a.m. and that appellant was
working in warehouse 18 but nobody saw what he was doing between 7:30 and 8:00 a.m.
Ms. Huit and Mr. Munoz stated that appellant could not have hurt his back selecting materials at
8:00 a.m. because work tickets were not even distributed until 8:45 a.m. and the accountability
report shows that he did not select his first work item until 9:14 a.m. They indicated that the
most work appellant could have done prior to 8:45 a.m. was to push an empty cart. Ms. Huit and
Mr. Munoz stated that while they were in a meeting with Mr. Badillo at 11:45 a.m. they received
a telephone call that appellant had hurt his back. Ms. Carter advised that appellant informed her
at 8:30 that he had hurt his back “stowing some material.” Appellant sat for a few minutes and
advised Ms. Carter that he was going to try to go back to work. Ms. Huit and Mr. Munoz stated
that Ms. Carter indicated that appellant told her at about 11:30 a.m. that his back condition had
worsened and he needed medical care. When they went to check on appellant in the health clinic
after 11:45 a.m. he provided an account of his injury which was the same as the one provided by
Ms. Carter.
In a July 2, 2007 decision, the Office denied appellant’s claim that he sustained an injury
in the performance of duty on May 21, 2007. It determined that appellant had not established the
occurrence of an employment incident at the time, place and in the manner alleged. The Office
found that he had not explained the discrepancy presented by the fact that he claimed that an
injury occurred when he handled a work item at around 8:00 a.m. on May 21, 2007 but the
evidence showed that he had not handled a work item until 9:14 a.m.
Appellant submitted additional medical reports describing the treatment of his back
problems. In a July 24, 2007 response to the Office’s May 2007 request for additional evidence
regarding the claimed May 21, 2007 employment incident, he stated that he was in warehouse 18
where he was placing items on a cart to be stowed. Appellant experienced a sharp pain in the
right side of his back when he pulled out a box weighing two to three pounds which had been at
midsection level.
In a November 21, 2007 decision, the Office affirmed its July 2, 2007 decision. It found
that the new factual evidence submitted by appellant was not sufficient to show that he sustained
an employment incident on May 21, 2007 at the time, place and in the manner alleged.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act6 has
the burden of establishing the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.7 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his subsequent course of action.8 An employee
6

5 U.S.C. §§ 8101-8193.

7

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

8

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

3

has not met his burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.10 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.11
ANALYSIS
Appellant alleged that he sustained a back injury on May 21, 2007 at about 8:00 a.m.
when he stooped to lift and handle materials weighing two to three pounds which had been at
midsection level. The Office denied appellant’s claim on the grounds that he had not established
the occurrence of an employment incident on May 21, 2007 at the time, place and in the manner
alleged.
The Board finds that appellant has established the occurrence of an employment incident
on May 21, 2007. Appellant consistently indicated that he sustained an injury at about 8:00 a.m.
on May 21, 2007. He consistently reported that the claimed injury occurred when he stooped to
lift and handle materials weighing two to three pounds. Appellant’s account of the date and time
of the claimed injury is supported by a coworker, Ms. Carter, who produced a statement
indicating that appellant came to her at about 8:30 a.m. and told her that his back was bothering
her. Ms. Huit and Mr. Munoz, two of appellant’s supervisors, indicated that Ms. Carter told
them that appellant reported to her on May 21, 2007 that he had hurt back “stowing material” at
about 8:00 a.m. on that date. The medical evidence of record shows that appellant provided
accounts of the claimed injury to his physicians that are consistent with those provided in his
claim form and other statements. Appellant reported his claimed injury to his superiors shortly
after its alleged occurrence. Mr. Badillo, the chief of appellant’s branch, stated that appellant
advised him of the injury at 11:45 a.m. on May 21, 2007. Appellant did not delay in seeking
treatment for his claimed injury as the medical record shows that he first sought treatment for it
on May 21, 2007.
In denying that an employment incident occurred as alleged, the Office indicated that the
record contained documents and supervisor statements indicating that appellant did not handle
his first work item until 9:14 a.m. on May 21, 2007. Mr. Badillo stated that a work count
accountability report, contained in the record, showed that on May 21, 2007 appellant
electronically processed the first work item he selected at 9:14 a.m. The Board notes that the
mere fact that there is some question about what time appellant electronically processed a work
item would not create such an inconsistency as to cast doubt on the validity of his claim. As
described above, appellant consistently indicated that he sustained injury by stooping to lift work
9

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

11

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

4

materials at about 8:00 a.m. on May 21, 2007 and the question of what time he might have
electronically processed that or some other work item would not render his statements about the
time and mechanism of his claimed injury any less consistent.
For these reasons, appellant has established that an employment incident occurred on
May 21, 2007 at about 8:00 a.m. when he stooped to lift and handle work materials weighing two
to three pounds. An employee’s statement alleging that an injury occurred at a given time and in
a given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.12 There is no strong or persuasive evidence showing that the employment incident did
not occur as alleged.
The Office denied appellant’s claim on a factual basis and did not consider the medical
evidence of record. The case will be remanded to the Office to evaluate the medical evidence
and determine whether appellant sustained a medical condition or period of disability due to the
accepted May 21, 2007 employment incident. After such development it deems necessary, the
Office should issue an appropriate decision regarding appellant’s claim that he sustained a
May 21, 2007 employment injury.
CONCLUSION
The Board finds that appellant established the occurrence of an employment incident on
May 21, 2007. The case is remanded to the Office for further development to be followed by the
issuance of an appropriate decision.

12

See supra note 11 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 21 and July 2, 2007 decisions are set aside and the case remanded to the Office for
further proceedings consistent with this decision of the Board.
Issued: September 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6