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

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

Docket No. 11-1756
Issued: March 19, 2012

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 July 26, 2011 appellant, through her attorney, filed a timely appeal from a June 2,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment to her
right arm.
FACTUAL HISTORY
On June 17, 2005 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries in a May 21, 2005 motor vehicle accident
while in the performance of duty. On August 15, 2005 OWCP accepted the claim for right
1

5 U.S.C. § 8101 et seq.

shoulder sprain/strain, right elbow lateral epicondylitis, lumbosacral sprain/strain and right knee
sprain/strain. The case was before the Board with respect to a claim filed for a recurrence of
disability as of April 29, 2008.2
On December 28, 2009 appellant filed a claim for a schedule award. OWCP referred her
for a second opinion examination by Dr. Alice Martinson, an orthopedic surgeon. In a report
dated April 7, 2010, Dr. Martinson provided a history and results on examination, including
range of motion for the right shoulder. She diagnosed right shoulder labral tear, post-traumatic
right trochanteric bursitis and post-traumatic mild meralgia paresthetica. Dr. Martinson stated
that, as appellant described the original injury, the most striking part of the story was the amount
of violence done to her right hip and pelvis. She stated that the original diagnosis of lumbosacral
strain was a general one and “should be supplanted by the more specific diagnosis of
post[-]traumatic trochanteric bursitis, right hip.” As to permanent impairment, Dr. Martinson
completed worksheets for the right shoulder and right hip. The right shoulder impairment was
six percent, based on Table 15-5 of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) sixth edition. Dr. Martinson found three percent
impairment based on labral lesions and three percent for acromioclavicular (AC) joint injury. As
to the right hip, she identified Table 16-4 and opined that appellant had a 13 percent permanent
impairment.
The case was referred to an OWCP medical adviser for review. In a report dated
April 15, 2010, the medical adviser stated that chronic trochanteric bursitis was not an accepted
condition. With respect to the use of Table 15-5, the medical adviser stated that while
Dr. Martinson used two diagnosed conditions, a proper application of the table involved only one
diagnosis. Therefore, the medical adviser found that the impairment was three percent to the
right arm.
By decision dated April 26, 2010, OWCP granted a schedule award for three percent
right arm impairment. The period of the award was 9.36 weeks from April 7, 2010.
Appellant requested a telephonic hearing with an OWCP hearing representative and
submitted a March 26, 2010 report from Dr. Stephen Wilson, an orthopedic surgeon, who opined
that she had sustained injuries to her back, right hip, shoulder and elbow as a result of the
employment injury. Dr. Wilson indicated that, based on loss of range of motion for the right hip,
she had a 20 percent impairment.3 For the right shoulder, he found 15 percent impairment based
on loss of range of motion. Dr. Wilson also found that appellant had two percent right arm
impairment due to chronic epicondylitis in the right elbow, based on Table 15-4. He further
opined that there was a six percent right arm impairment under Table 15-23 for chronic right
elbow pain with radicular symptoms causing weakness and sensory deficits. Dr. Wilson
concluded that appellant had 22 percent right arm impairment after combining the impairments
for the right shoulder and elbow. A telephonic hearing was held on August 10, 2010.
2

The Board issued an order remanding the case for consideration of whether a June 5, 2007 wage-earning
capacity determination should be modified. Docket No. 09-1098 (issued November 20, 2009).
3

In his report, Dr. Wilson initially refers to a whole person impairment for impairments to the right hip and right
shoulder and then refers to a lower or upper extremity impairment using the same percentages.

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By decision dated December 13, 2010, an OWCP hearing representative remanded the
case for further development. The hearing representative stated that the case should be referred
to an OWCP medical adviser with respect to Dr. Wilson’s rating of right arm impairment.
In a report dated December 24, 2010, an OWCP medical adviser opined that impairments
based on loss of range of motion were used only in special circumstances. He found that
Dr. Wilson did not document that the range of motion results were consistent with the A.M.A.,
Guides to ensure reliability. The medical adviser noted that the range of motion results for the
right shoulder differed significantly from the results reported by Dr. Martinson. He concluded
that Dr. Wilson had offered ratings for “a number of conditions” that had not been accepted by
OWCP.
By decision dated January 4, 2011, OWCP found that appellant was not entitled to an
additional schedule award.
Appellant requested a telephonic hearing, which was held on April 5, 2011. In a decision
dated June 2, 2011, the hearing representative found that she was not entitled to an additional
schedule award based on the evidence of record. The hearing representative found that the
weight of the evidence was represented by an OWCP medical adviser.
LEGAL PRECEDENT
Section 8107 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.4 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.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
With respect to a shoulder impairment, the A.M.A., Guides provides a regional grid at
Table 15-5. The class of impairment (CDX) is determined based on specific diagnosis and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH) Table 15-7, Physical
Examination (GMPE) Table 15-8 and Clinical Studies (GMCS) Table 15-9. The adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7

4

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).
5

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

6

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

7

The net adjustment is up to +2 (grade E) or -2 (grade A).

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ANALYSIS
Appellant received a schedule award for a three percent right arm permanent impairment.
The award was based on a right shoulder diagnosis and application of Table 15-5. The Board
notes that, in addition to the right shoulder, the record contains evidence regarding a permanent
impairment based on the right elbow and the right hip.
With respect to a right shoulder impairment, the second opinion physician,
Dr. Martinson, identified Table 15-5 and diagnosed both an AC joint injury and a labral lesion.
OWCP’s medical adviser finds that only one diagnosis would be appropriate under Table 15-5.
The Board notes that the A.M.A., Guides states that, when using the diagnosis-based regional
grids, such as Table 15-5, “in most cases” one diagnosis will be appropriate.8 For the shoulder
specifically, the A.M.A., Guides note that it is common that diagnoses of rotator cuff tears, labral
lesions and biceps tendon pathology are found together and the evaluator should choose the most
significant diagnosis and rate only that diagnosis.9 The A.M.A., Guides does not, however,
specifically preclude use of both an AC joint injury and a labral lesion diagnosis. Dr. Martinson
should have been asked to explain whether impairments for both diagnoses were appropriate in
view of the guidance in the A.M.A., Guides. In addition, although the medical adviser indicated
that the rating for either diagnosis was acceptable, Dr. Martinson did not explain how she used
the adjustment grids and applied the net adjustment formula. On the worksheet Dr. Martinson
reported zero as grade modifiers for functional history, physician examination and clinical
studies, without further explanation. Applying the net adjustment formula noted above would
not result in a grade C impairment of three percent for each diagnosis.
Accordingly, the Board finds that the second opinion physicians report was of diminished
probative value with respect to a right shoulder impairment. It is noted that an attending
physician, Dr. Wilson, opined that appellant had a right shoulder impairment based on loss of
range of motion. In this regard the Board concurs with the medical adviser that Dr. Wilson did
not adequately explain the use of a range of motion impairment. As the Board noted in R.S., the
A.M.A., Guides state that diagnosis-based impairments are the method of choice for calculating
impairment.10 In addition, range of motion measurements must be performed in accord with the
provisions of the A.M.A., Guides, which includes active and passive measurements. Dr. Wilson
did not establish that measurements were in accord with the A.M.A., Guides or explain why a
range of motion impairment should take precedence over a diagnosis-based approach.
The next issue concerns an impairment for the right elbow. Dr. Wilson found an
impairment based on epicondylitis. An OWCP medical adviser was asked for an opinion with
respect to Dr. Wilson’s findings, but he did not discuss this issue. The medical adviser referred
generally to “a number of conditions” that were not accepted as employment related. In this
case, OWCP had accepted lateral epicondylitis and the medical adviser should have reviewed
Dr. Wilson’s opinion on the issue.
8

A.M.A., Guides 387.

9

Id. at 390.

10

Docket No. 11-850 (issued January 4, 2012). Id. at 461.

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There also remains an issue with respect to a right hip condition and a lower extremity
impairment. The report of Dr. Martinson, the second opinion physician, supported a causal
relationship between the diagnosed trochanteric bursitis and the employment injury, based on the
history of injury provided. Dr. Wilson also opined that a right hip condition was employment
related. While not fully rationalized medical opinions, there was sufficient probative evidence to
require OWCP to develop the issue and make appropriate findings as to whether a right hip
condition was employment related.11 If there is an employment-related hip condition, then
OWCP may properly address the issue of a resulting permanent impairment to a scheduled
member of the body.
OWCP undertook development of the schedule award issue and there remain significant
issues regarding the extent of permanent impairment to the right arm as well as to the right leg.
The case will be remanded to OWCP to properly resolve the issues presented.12 On remand,
OWCP should refer appellant for a second opinion examination. The physician should provide
complete examination results and a rationalized opinion as to any employment-related permanent
impairment to the right arm. In addition, an opinion as to whether a right hip condition is
employment related and if so, whether there is a permanent impairment under the A.M.A.,
Guides. After such further development as OWCP deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development of the medical evidence.

11

See Udella Billups, 41 ECAB 260, 269 (1989).

12

See D.N., 59 ECAB 576 (2008); Mae Z. Hackett, 34 ECAB 1421 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 2, 2011 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 21-0342
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a November 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

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5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

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OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

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OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
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Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

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appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

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work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 The issue of whether an employee has the physical ability to perform
a modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
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 duty. 14 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
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.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 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 $50.00.21 Also, 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.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
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. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

Id. at Chapter 6.400.4(b)(3).

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide 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. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
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 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. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, SCOTTSDALE HOPI
STATION, Scottsdale, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2275
Issued: September 23, 2010

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 September 4, 2009 appellant filed a timely appeal from the March 11, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for a February 22,
2006 injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on February 22, 2006.
FACTUAL HISTORY
On August 16, 2006 appellant, then a 53-year-old customer service supervisor, filed a
traumatic injury claim alleging that she sustained injury on February 22, 2006 at 11:15 a.m. due
to a motor vehicle accident that occurred in the performance of duty. The portion of the claim

form to be completed by the supervisor was completed and signed by Tony Pierce, the acting
station manager.1 Appellant stopped work on February 22, 2006.
The record contains a February 22, 2006 accident report completed by a police officer
from Scottsdale, AZ advising that appellant’s vehicle ran into the rear of a vehicle stopped for a
red light shortly before 11:00 a.m. Appellant was traveling at a speed of 40 to 50 miles per hour
on Frank Lloyd Wright Boulevard near its intersection with the Greenway Hayden Loop in
Scottsdale and failed to apply the brakes of her vehicle.2 In an August 16, 2006 letter, Jane
Bermijo, an injury compensation specialist, controverted the claim contending that appellant’s
injury did not occur in the performance of duty. She noted that Mr. Pierce had advised that
appellant suffered a nonwork-related medical condition on the morning of February 22, 2006.
Mr. Pierce instructed appellant to wait for her husband to take her home but she chose to leave
the worksite before her husband arrived and drove home on her own. Appellant was not
performing any assigned duties or engaged in any activity related to her employment at the time
of the accident.
In an August 22, 2006 letter, the Office requested that appellant submit additional
evidence in support of her claim.
In an undated statement, Susan Service, a customer service supervisor, noted that
appellant was not feeling well on February 22, 2006 and Mr. Pierce took her to his office to call
her husband to pick her up and take her home for the day. Mr. Pierce instructed appellant to stay
seated in his office until her husband arrived. After he left for a 10:30 a.m. meeting, appellant
left his office and walked around the workroom floor. Ms. Service had a conversation with
appellant at about 10:45 a.m. in the restroom. Appellant then left the premises in her privatelyowned vehicle, leaving her cell phone and purse behind and missing her husband by 10 to 15
minutes. Ms. Service stated that management was not aware that appellant had left or driven her
vehicle to leave. Appellant’s husband arrived at about 11:00 a.m. and she assisted him in
looking for appellant in the building and parking lot but it was observed that her vehicle was
gone. He left the premises to look for appellant. At approximately 9:00 p.m., the police called
to advise that appellant had been located at a hospital in Mesa, AZ. She had been injured in a
motor vehicle accident that occurred on route to her home within a few miles of her residence.
In a September 29, 2006 decision, the Office denied appellant’s claim, finding that she
did not sustain a work-related injury on February 22, 2006 as the accident did not occur in the
performance of duty. It noted that appellant left her work premises due to a nonwork-related
medical condition and thereafter was involved in a motor vehicle accident. The evidence failed
to establish that she was engaged in any activity reasonably associated with her employment at
the time of the accident.

1

Appellant indicated that she sustained multiple right ankle and foot fractures which necessitated surgical repair.
She also had to undergo a splenectomy and partial liver removal. Appellant noted that various people had an
opportunity to observe her on February 22, 2006 between 8:00 a.m. and 11:00 a.m. including Mr. Pierce, Donna
McClellan, Gary Murphy, Demetri Stoits, Craig Anderson, Tom Clay, Denise Kolock and Kris Hubarth.
2

Other evidence of record indicates that the accident occurred about seven miles from appellant’s workplace.

2

Appellant requested reconsideration of her claim. Counsel argued that her injury
occurred in the performance of duty because the employing establishment failed to render
adequate assistance under the “human instincts” doctrine. He asserted that the employing
establishment had been aware since 2004 that appellant had been diagnosed with diabetes and
new onset seizure disorder. Appellant suffered a seizure at about 8:00 a.m. on February 22, 2006
but nobody called 911 and she was left alone when Mr. Pierce went to a meeting. She forgot that
she had a seizure and walked around in an apparently confused state. Appellant took her car
keys (leaving her purse and other personnel items behind) and drove away from the employing
establishment. Her confused state contributed to the accident. Counsel argued that people with
seizure disorder may experience confusion, loss of consciousness, loss of memory and may
suffer a subsequent seizure shortly after an initial seizure. He contended that the human instincts
doctrine, recognized in a line of cases starting with Mildred Drisdel,3 established a duty for the
employer to provide reasonable medical care or other assistance as an emergency may require so
that an affected employee may have her life saved or avoid further bodily harm to herself or
others. Counsel argued that it was unreasonable for Mr. Pierce not to call 911 and to leave
appellant alone after she suffered a seizure, particularly since the safety plan had been followed
on prior occasions when appellant had a seizure. He discussed a case, Marianne Eick (George E.
Eick),4 in which the Board evaluated the facts of the case under the human instincts doctrine and
found that an injury had not occurred in the performance of duty. Counsel asserted that the facts
of Eick were distinguishable from those of the present case because in Eick the manager had
taken adequate steps to determine that the employee was coherent and capable of driving and
making decisions about medical care. In the present case, there was evidence that appellant was
incoherent and the employing establishment failed to carry out a safety plan which had been
devised to deal with her particular medical condition. Counsel argued that appellant’s
February 22, 2006 seizure was directly related to her employment because it was brought on by
stress related to the fact that the employing establishment constantly changed her work shifts and
work duties.
In a February 26, 2006 statement, Pam Baker, a supervisor, stated that on February 22,
2006 at about 7:45 a.m. she heard a weird noise and looked to see three carriers standing around
appellant who was having a seizure. She told appellant to take some deep breaths and she kept
saying, “I’m okay.” Ms. Baker gave appellant a banana because she thought she might be
“crashing” due to a low sugar level given that she was diabetic. She advised that the seizure
lasted about 30 seconds and that after it stopped Mr. Pierce escorted appellant to his office.5
Ms. Baker called appellant’s son who indicated that he would call his father and see if he could
get appellant home. Appellant’s son called Ms. Baker back after he was unable to contact his
father and asked if someone could “just bring her home.” He stated that no one would be home
when appellant arrived but noted that whenever she had a seizure she slept for many hours.
Ms. Baker told appellant’s son that she would try to get appellant home and that he stated,
“Okay, I have to go to school.” She saw appellant walk by her desk and go to the bathroom at
3

32 ECAB 82 (1980).

4

40 ECAB 1056 (1989).

5

Ms. Baker stated that she stood next to appellant “with my hand on the phone waiting to call 911.” She
indicated that about three or four weeks prior appellant had suffered a seizure which lasted longer.

3

about 10:30 a.m. and assumed she was going to lie down on a couch until her husband picked her
up. Someone told Ms. Baker that appellant had spoken to her husband and that he was meeting
appellant on the dock and taking her home. She saw appellant’s husband walking to the back
office at about 11:10 a.m. and she left work about 10 minutes later. Ms. Baker called appellant’s
home at about 1:30 p.m. and her son stated that appellant was not yet home. She learned that
appellant might have left to drive herself home and that her husband arrived at the worksite after
she left. Ms. Baker was subsequently advised that appellant had been in an accident in
Scottsdale.6
In a July 16, 2006 statement, Donna McClellan, a coworker, advised that she was present
on February 22, 2006 when appellant had a seizure at work. Several coworkers who were
assisting appellant asked management to call 911 but management did not do so. A management
official helped appellant to an office in order to wait for a family member. Ms. McClellan
stated:
“[Appellant] came back out of the office by herself with no one with her to keep
an eye on her. I [saw] her wandering around and went to management to say that
[appellant] was wandering around on her own and should not be left alone, let
alone walking around because she was stumbling along. [Appellant] had stopped
at a few carrier cases and wandered to the dock doors. I repeated again to two
supervisors [that appellant] was wandering around and should not be left on her
own. I was ignored while they were making plans to go to lunch to make their
schedules for the carriers. I walked away as [appellant] was still wandering
around and went out the dock doors.
“Later that day as we were coming in from the street, management was asking the
carriers if we [have] seen [appellant]. She had left and no one had seen her. We
later found out she was in an accident and was seriously hurt….
In an undated statement, Ms. Service noted that on February 22, 2006 she arrived at work
at about 10:25 a.m. and as she walked toward her office, noticed that Mr. Pierce was not in his
office. After checking some paperwork in her office, she walked onto the workroom floor and
saw appellant there. As the two walked together to the restroom, a coworker stated “you’re still
here” to appellant and she responded “yes, I’m waiting to go home.” Ms. Service asked
appellant if she was leaving early and she responded “yes, tough day.” In the restroom, she
asked appellant how her fitness-for-duty examination went the prior day and appellant responded
that the examination never occurred because she got lost on the way. Ms. Service last saw
appellant at about 10:40 a.m. when they had a brief exchange about the filing of a report. At
about 11:15 a.m., appellant’s husband came to her office looking for appellant and the two
6

In an undated statement received by the Office on October 3, 2006, Ms. Baker stated that she spoke to
appellant’s son on February 23, 2006 and he indicated that, at the time of the accident, appellant was driving on a
road that she would not ordinarily use to get home. When asked whether appellant had a seizure while driving, he
responded that he did not know. In a brief February 23, 2006 statement, a coworker named Denise indicated that
she spoke to appellant on February 22, 2006 at about 10:30 to 10:45 a.m. regarding the fact that her husband was
picking her up and taking her home. The coworker stated that appellant stepped out of the office and walked toward
the back of the building.

4

searched the building before they noticed that her vehicle was gone. Ms. Service was then
advised by Ms. Baker that appellant had suffered a seizure that morning and had been instructed
to stay in Mr. Pierce’s office until her husband came to pick her up. She did not see Mr. Pierce
or ever have a conversation with him about appellant the morning of February 22, 2006.
Ms. Service stated, “In my conversations with [appellant] she seemed coherent; I would not have
guessed that she had a seizure that morning. She was walking and talking fine.”
Appellant submitted several reports from April 2006 in which Dr. Guillermo M. Estrada,
an attending Board-certified neurologist, advised that she had a history of diabetes and epilepsy.
The epilepsy condition, which began three years prior, caused generalized tonic-clonic seizures
without warning signs. Dr. Estrada noted that appellant had six seizures in the prior three years.
He stated that appellant had a seizure at work on February 22, 2006 and might have had another
seizure when she was driving home on that date. On July 5, 2006 Dr. Carolyn Barlow, an
attending osteopath and Board-certified family practitioner, stated that appellant had a history of
seizure disorder that was not problematic until she had a seizure while driving and had a motor
vehicle accident from which she sustained a right ankle fracture and surgery, partial liver
resection and splenectomy. Appellant was in a coma in the intensive care unit for six days and,
after extensive rehabilitation in an extended care facility, she was released to go home on
March 31, 2006. She submitted additional treatment records for the injuries she sustained on
February 22, 2006, including a right talus and fibula surgical repair, splenectomy and partial
liver resection. The emergency room reports from February 22, 2006 noted that appellant was
unable to provide any history secondary to her confusion. She was able to answer some
questions but appeared to be in a post-seizure state.7
Appellant requested reconsideration of her claim. In a September 25, 2007 letter, counsel
reiterated that appellant’s accident would not have occurred if management had called 911 or
ensured that she was escorted home by a family member. The fact that appellant left the
worksite without her purse or identification and that the accident occurred on a road that she did
not ordinarily use to go home showed that she was in a confused state at the time.
On December 11, 2007 the Office requested that the employer submit additional evidence
concerning appellant’s health records, medical accommodation requests and emergency medical
plans filed with her supervisors. It also asked for a response to a series of questions regarding

7

The report indicated, “The patient, while unreliable, states that she stopped her Dilantin on her own.”

5

the handling of appellant’s medical situation on February 22, 2006, the nature of any emergency
medical plans in place and the handling of prior instances of medical distress.8
In a December 19, 2007 letter, counsel took issue with whether appellant had stopped
taking Dilantin of her own volition. He noted that it was reported that appellant made a
statement to that effect in the emergency room on February 22, 2006 but the emergency room
report advised that appellant was found to be unreliable, confused and unable to answer
questions appropriately on that date.
Linda Hartshorn, a health manager for the employing establishment, responded to the
Office’s questions. On February 22, 2006 an employee reported that there was something wrong
with appellant and her managers responded immediately because they were aware that she had a
medical condition that predisposed her to seizures.9 Ms. Hartshorn stated that the employer had
instructed employees to call 911 in case of a medical emergency and that this procedure would
have been followed if the employees present had any reason to believe that appellant was having
a medical emergency. Appellant told employees that she was okay and both her husband and
son were contacted but they gave no indication that she needed to be transported to a hospital.
Therefore, arrangements were made to have appellant’s husband pick her up and take her home.
He arrived to take appellant home but it was discovered that she had left the worksite by that
time.
Ms. Hartshorn advised that Donna Fay, the station manager, asserted that there was no
emergency medical plan in place to call 911 in the event of a seizure. Management had no
reason to believe that appellant was unable to care for herself and it exercised reasoned judgment
in asking her to stay in Mr. Pierce’s office until her husband arrived. Although Ms. McClellan
stated that she observed appellant stumbling and wandering around, there was no indication that
she spoke to appellant or that she was in a position to adequately assess her demeanor. Two
supervisors, Ms. Baker and Ms. Service, observed appellant acting normally and responding to
everyday conversations in an appropriate manner. Ms. Hartshorn stated that, when she had
seizures in the past, Ms. Fay took appellant to her office, made her comfortable and made
arrangements with a family member to pick her up and drive her home.

8

The Office asked the employing establishment several questions about appellant’s level of coherence on
February 22, 2006 and the arrangements to have her taken home, including the following: “It is indicated that the
agency called [appellant’s] husband to pick her up on February 22, 2006 and told her to wait in the office. Was her
husband reached? If so, what did he say? Did he provide the agency with any instructions? Did her husband ever
come to pick her up? It is indicated that [appellant’s] supervisor left her in the office alone knowing that she had
suffered a ‘seizure’ that morning around 8:00 a.m., and she was seen ‘wandering around’ and ‘stumbling along.’ If
[appellant] was left in the office, how long was she there alone? Why was she left alone? Did anyone go back into
the office to check on her and how often? Did the claimant’s supervisor and/or coworkers conclude that [appellant]
was capable of driving herself home on February 22, 2006? Was she coherent? Was she conversing intelligibly?
Did the claimant tell anyone that she would be leaving and driving herself home? Did anyone see the claimant with
car keys visibly on her person?”
9

Ms. Hartshorn indicated that no medical professionals were present who could have determined with certainty
that appellant actually suffered a seizure.

6

In a February 14, 2008 decision, the Office denied appellant’s claim. It found that
management acted reasonably on February 22, 2006 given that appellant stated that she was
alright and her behavior was observed to be normal.
Appellant requested reconsideration. In a February 9, 2009 letter, counsel again
contended that it was typical of appellant to become confused and have memory problems after a
seizure. Although appellant stated that she was okay, her prior medical condition dictated that
911 should have been called or that someone stay with her until her husband arrived.
On February 13, 2006 Dr. Jess A. Miller, an attending Board-certified psychiatrist and
neurologist, stated that appellant was “neurologically cleared to return to work without
restriction.”10 The record contains an undated employing establishment document entitled
“Safety, Health and Environment” which noted that recommended procedures for handling
medical emergencies included notifying the health services office and notifying security or
another designee who in turn would call 911. Another document, entitled “Emergency Action
Plan” for the Arrowhead Station in Glendale, AZ, updated on September 10, 2008, indicated that
in emergency situations 911 should be called when an employee is unconscious or requests an
ambulance.11
In statements to the record, appellant contended that her employer should have called 911
when she had a seizure at about 8:00 a.m. on February 22, 2009 because it had prior notice of her
diabetes and epilepsy conditions and the emergency action plan required 911 to be called when a
medical condition as serious as a seizure occurred.12 Appellant might have told Ms. Baker that
she was okay immediately after her seizure, but such a brief, generic statement did not mean she
was not in medical distress or not in need of immediate medical care. No one ever asked her
again how she was doing and she did not reassure people that she was okay. She stated that there
were no medical personnel present when she had her seizure and management did not contact
any such personnel. At about 10:30 a.m. Mr. Pierce first asked her for her husband’s cell phone
number because he had not been able to get in touch with him.13 She was in such a confused
state that she was not able to recall his number. After several attempts, appellant was able to
punch numbers on her cell phone and make contact with her husband. She only told her
husband, “I’m sick come and get me.” Mr. Pierce did not stay in the room while she made this
call. He came back into the office and asked if appellant’s husband was coming and left after he
got an affirmative response. Appellant stated that Mr. Pierce never spoke to her husband or any

10

Appellant had previous been considered incapacitated from duty between January 17 and 23, 2006. She could
only drive intermittently for up to one hour per day. In a December 15, 2005 report, Dr. Miller indicated that a high
level of stress could increase the frequency of appellant’s seizures and stated that her last seizure had occurred on
October 17, 2006.
11

The Board notes that it appears from the record that appellant’s husband was a manager at the Glendale
Arrowhead Station.
12

Appellant indicated that she wore a medical alert bracelet detailing her medical conditions.

13

In other parts of her statements, appellant indicated that Mr. Pierce asked for her husband’s cell phone number
at about 10:00 a.m., but it is clear from the content and context of her statements and other evidence of record that
she meant to state that this event occurred at about 10:30 a.m.

7

other family member to explain her medical condition.14 Due to her confused state, she forgot
that she had called her husband and she took her car keys to drive away.15 On at least one prior
occasion when she had a seizure at work, the employing establishment had called 911.
Appellant did not understand why 911 was not called or why she was left alone by Mr. Pierce.16
In an undated statement, appellant’s husband advised that she contacted him at about
10:30 a.m. on February 22, 2006 and asked him to pick her up at work because she had a seizure.
He noted that, when appellant had experienced a previous seizure at work, management officials
called 911 and he visited her at the hospital. When he arrived at the worksite at about 11:00
a.m., appellant was not in the building and no one knew where she was located.
In a March 11, 2009 decision, the Office denied appellant’s claim. It found that
appellant’s managers had acted reasonably in handling her medical situation on
February 22, 2002. There was no evidence that her motor vehicle accident had a relationship to
her medical condition on that date.
LEGAL PRECEDENT
Under the human instincts doctrine, an employer has the duty to make reasonable efforts
to procure medical aid or other means of relief to an employee who becomes ill or injured on the
job, and who as a result is helpless to provide for her own care. A failure, on the part of the
employer, to satisfy this duty may be sufficient to establish a causal connection between an
employee’s condition and the employment if it is shown that such failure contributed to the
condition for which compensation is claimed.17 In Marianne Eick (George E. Eick),18 the Board
found that the employing establishment acting reasonably when it did not provide medical care
to the employee’s husband and allowed him to drive away from the premises because, despite the
fact that he did not appear well, he was found to be in a coherent state and had refused medical
attention.19 In Jerry L. Sweeden,20 the Board held that the employer acted reasonably in response
to the employee’s seizures in that coworkers transported him to a hospital in a timely manner.
14

Appellant noted that while another person spoke to her son, he was a minor and not in a position to make
judgments concerning her medical care.
15

Appellant stated that her medical condition caused her to stumble and wander around the workroom floor in a
confused state. The fact that she did not tell Ms. Service that she had a seizure when she saw her on February 22,
2006 showed that she was suffering from memory loss. Appellant also asserted that she had suffered memory loss
during previous seizure episodes.
16

Appellant asserted that on January 17, 2006 the employing establishment called 911 when she had a medical
problem that was related to breathing problems. She had never been taken home by a family member after suffering
a seizure at work.
17

Marianne Eick (George E. Eick), supra note 4; Joseph J. Rotelli, 40 ECAB 987 (1989).

18

See supra note 4.

19

The claimant’s husband died of a heart attack about a day after his supervisor last spoke to him and offered to
provide him with transportation to a medical facility.
20

41 ECAB 721 (1990).

8

It is well established that proceedings under the Federal Employees’ Compensation Act
are not adversarial in nature, and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.21
ANALYSIS
Appellant claimed that the motor vehicle accident of February 22, 2006 was sustained in
the performance of duty within the meaning of the Act. Counsel argued that, under the human
instincts doctrine, the fact that the employing establishment did not provide appellant reasonable
care on that date contributed to the accident and brought the resulting injuries within coverage.
As noted, the human instincts doctrine provides that an employer must make reasonable efforts
to procure medical aid or other means of relief to an employee who becomes ill or injured on the
job and who as a result is helpless to provide for her own care. If a failure to fulfill this duty
contributes to an injury, a causal connection between the claimed condition and the employment
may be established.22 The Office found that the employing establishment provided appellant
reasonable care on February 22, 2006 and that she failed to establish a connection between her
accident on February 22, 2006 and employment factors.
The record contains witness statements which establish that at about 8:00 a.m. on
February 22, 2006 appellant had an incident of medical distress, which a supervisor described as
a seizure lasting about 30 seconds. At some point thereafter she was taken to the office of
Mr. Pierce, the acting station manager. At approximately 10:30 a.m., appellant contacted her
husband to pick her up from the employing establishment premises. Shortly thereafter,
Mr. Pierce left appellant alone in his office to attend a meeting. According to witnesses,
appellant was last seen on the premises at about 10:40 a.m. She subsequently drove away from
the premises before her husband arrived at about 11:00 a.m. Police records reveal that a few
minutes before 11:00 a.m., she was involved in an accident some seven miles away from her
workplace.
Counsel argued that the employing establishment did not respond reasonably after
appellant sustained what appeared to be a seizure at about 8:00 a.m. on February 22, 2006. It
failed to call 911 and Mr. Pierce left appellant alone to wait for her husband. Counsel stated that
the employing establishment had prior knowledge that appellant had diabetes and epilepsy which
rendered her susceptible to seizures and that safety plans dictated that 911 be called when an
employee had a medical emergency.23 Appellant claimed that her seizure caused her to be in a
confused state and to suffer memory loss such that she could not provide for her care. She drove
from the premises because she forgot that her husband was coming to pick her up and that her
confused state contributed to her vehicular accident.

21

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

22

See supra note 20.

23

Counsel asserted that the employing establishment acted appropriately on prior occasions by calling 911 when
appellant was in medical distress.

9

The Board finds that additional development of the evidence is necessary to determine if
appellant sustained an injury in the performance of duty on February 22, 2006. The case will be
remanded to the Office for this purpose.
In December 2007, the Office requested that the employer provide information about the
events of February 22, 2006, including appellant’s level of coherence on that date and the
arrangements to have her taken home. The employing establishment was asked a series of
detailed questions about these matters. While the employer provided some responses to the
questions, there is a need for additional clarification. The record contains little evidence from
the time appellant had her initial seizure at about 8:00 a.m. on February 22, 2006 to when she
was observed from 10:30 and 10:40 a.m. Gaining additional information about appellant’s
condition and circumstances throughout the relevant portion of the day on February 22, 2006 is
necessary to determine whether the employing establishment acted reasonably in providing her
care. Ms. Baker, a supervisor, indicated that appellant told her she was okay immediately after
she suffered a seizure but noted that she did not see her again until about 10:30 a.m. when she
saw her walk by her desk. Ms. Service, another supervisor, stated that she spoke to appellant at
about 10:30 a.m. and again at about 10:40 a.m. and found her to be coherent and “walking and
talking fine.”24 However, Ms. McClellan, a coworker, indicated that on the morning of
February 22, 2006 appellant was “wandering around on her own” and “stumbling along” on the
workroom floor. She asserted that she asked supervisors to call 911 but that she was ignored.
The employing establishment was asked questions about the length of time appellant
stayed with Mr. Pierce or other personnel, the level of her coherence while she was in the care of
Mr. Pierce or others, and the rationale for why she apparently was left alone by Mr. Pierce at
about 10:30 a.m. In responding to these questions, the employing establishment essentially
reviewed the evidence already in the record, particularly the witness statements, and concluded
that it had responded reasonably under the circumstances.25 There is no indication in the record
that Mr. Pierce has provided any statement regarding the events of February 22, 2006 or that
attempts were made to gain additional information from other managers or coworker in order to
address the matters that the Office felt were in need of clarification. As acting station manager,
Mr. Pierce would have been in a position of authority to make decisions about the provision of
care for appellant.26 The question of why appellant apparently was left alone at about 10:30 a.m.
on February 22, 2006 has not been adequately developed. There is little evidence clearly
addressing what appellant’s level of coherence was for a large portion of time she was at the
employing establishment premises on February 22, 2006. Appellant provided a list of

24

In a brief statement, a coworker named Denise indicated that she spoke to appellant on February 22, 2006 at
about 10:30 to 10:45 a.m. regarding the fact that her husband was picking her up and taking her home.
25

The employing establishment highlighted the statements of Ms. Baker and Ms. Service and discounted the
statement of Ms. McClellan.
26

Ms. Service indicated that Mr. Pierce contacted appellant’s husband and arranged for him to pick appellant up
at work. However, other evidence of record suggests that appellant contacted her husband and that Mr. Pierce did
not speak with her husband.

10

individuals who would have been in a position to witness her condition on February 22, 2006 but
it remains unclear whether the Office made sufficient attempts to obtain statements from them.27
For these reasons, the case is remanded to the Office to further clarify these matters,
particularly in the context of appellant’s assertion that her claimed injuries were covered under
the human instincts doctrine. After such development as it deems necessary, the Office shall
issue an appropriate decision regarding whether appellant met her burden of proof to establish
that she sustained an injury in the performance of duty on February 22, 2006.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she sustained an injury in the performance of duty on
February 22, 2006. The case is remanded to the Office for further development of the evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2009 is set aside and the case remanded to the Office
for further proceedings consistent with this decision of the Board.
Issued: September 23, 2010
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

27

It is also noted that limited information was obtained about any safety plans that might have been in place and
about the handling of the prior circumstances that appellant was in medical distress.

11


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1514
Issued: March 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 14, 2010 appellant filed a timely appeal from a December 9, 2009 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right shoulder injury in the performance of duty on October 30, 2009.
FACTUAL HISTORY
On October 31, 2009 appellant, then a 45-year-old mail carrier, filed a traumatic injury
claim alleging that she sustained a right shoulder injury after work on October 30, 2009. She
woke up on the morning of October 31, 2009 and was unable to move her right arm due to pain.
Appellant missed work that day and returned to limited duty on November 2, 2009. Her
supervisor noted that the employing establishment “can[no]t determine if this injury happened
while employee was working.”

In reports dated November 2, 2009, Dr. Gary P. Jacobs, an internist, remarked that he
was “not sure” about the particulars of appellant’s injury. He diagnosed a right arm and shoulder
contusion.
The employing establishment controverted the claim on November 3, 2009, pointing out
that appellant did not explain what happened to her and that the medical evidence did not
establish any connection between her federal employment and the diagnosed contusion.
On November 9, 2009 the Office informed appellant that additional evidence was needed
to establish her claim. It gave her 30 days to submit information identifying the specific
employment incident or factor alleged to have caused her injury and medical opinion evidence
establishing causal relationship.
Appellant submitted several medical records. In an information worksheet dated
November 2, 2009, she noted that she felt right shoulder pain “Friday Evening,” could not move
her arm after waking up on “Sat 11-1-09” and continued to experience severe pain.
In November 2, 2009 form reports, Dr. Jacobs listed appellant’s description that she was
driving and carrying a mail satchel using her right shoulder on October 30, 2009. At or around
8:30 p.m., two hours after leaving work, she was sitting on a couch when she felt pain in her
right shoulder. The following morning, appellant could not move her arm. On physical
examination, Dr. Jacobs observed swelling of the right anterior shoulder, tenderness of the
sternoclavicular and acromioclavicular joints, biceps tendon and rotator cuff, decreased sensation
and range of motion (ROM) and a positive impingement sign. He also noted subacromial and
subdeltoid tenderness. X-ray results were normal. Dr. Jacobs diagnosed a right arm and
shoulder contusion. Progress notes dated November 6 and 12, 2009 from Drs. Jacobs and John
Kasawa, a Board-certified, family practitioner, indicated that appellant’s condition improved.
By decision dated December 9, 2009, the Office denied appellant’s claim, finding that the
evidence was insufficient to establish the occurrence of a specific employment event, incident or
exposure that caused an alleged injury.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act and that she filed her claim within the applicable time limitation.3 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.4
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

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

2

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. The employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place and in the manner alleged. The employee must also submit evidence, in the form of
medical evidence, to establish that the employment incident caused a personal injury.5
An employee’s statement 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.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met her burden 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. Circumstances such 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 doubt on an employee’s statement in
determining whether a prima facie case has been established.7
ANALYSIS
Appellant has not submitted sufficient evidence to show that an employment incident
occurred as alleged in the performance of her duties as a mail carrier on October 30, 2009 as her
claim lacks specificity regarding the claimed mechanism of injury.8
On her claim form, appellant merely stated that she woke up on October 31, 2009 and
could not move her right arm due to pain. On November 9, 2009 the Office informed her that
additional factual evidence was needed to establish her claim and gave her an opportunity to
clarify the details of her claimed injury. In response, appellant submitted medical records from
Dr. Jacobs and her patient information worksheet dated November 2, 2009. These documents
noted that she drove and carried a mail satchel using her right shoulder on October 30, 2009 but
sustained right shoulder pain while sitting on a couch two hours after she left work. Appellant
was unable to move her arm the following morning. The evidence does not establish time and
place of injury or establish the manner in which she hurt her right shoulder. While appellant
mentioned that she drove and carried a mail satchel, she did not clearly assert that this activity
resulted in the alleged injury. Furthermore, she did not respond to the Office’s request that she
describe the employment incident or factors that caused her claimed injury. The Board finds that
appellant has failed to provide sufficient factual and medical evidence to establish a prima facie
claim.9
5

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

6

Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006).

9

See O.W., 61 ECAB ___ (Docket No. 09-2110, issued April 22, 2010).

3

On appeal, appellant argues that she was injured on the job and that her attending
physician concluded that her diagnosed right shoulder contusion was work related. As noted, the
evidence did not sufficiently establish that an employment incident occurred on
October 30, 2009 as alleged. As appellant did not establish that an incident occurred, it is not
necessary to consider the medical evidence with regard to causal relationship.10
CONCLUSION
The Board finds that appellant did not establish that she sustained a right shoulder injury
in the performance of duty on October 30, 2009.11
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2011
Washington, DC

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

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

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

10

See id.

11

The Board notes that the record on appeal contains evidence which the Office received after its December 9,
2009 decision. Appellant also submitted new evidence on appeal. The Board lacks jurisdiction to review evidence
for the first time on appeal. 5 U.S.C. § 501.2(c). This, however, does not preclude appellant from having such
evidence considered by the Office as part of a formal request for reconsideration pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606.

4