United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H, Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1465
Issued: December 19, 2016

Case Submitted on the Record

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

JURISDICTION
On July 7, 2016 appellant, through her representative, filed a timely appeal from a
March 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $38,168.89 because
OWCP failed to offset the portion of her Social Security Administration (SSA) retirement
1

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

5 U.S.C. § 8101 et seq.

benefits attributable to her federal service from July 1, 2007 through April 4, 2015; (2) whether
appellant was at fault in creating the overpayment; and (3) whether OWCP properly determined
that it would recover the overpayment by deducting $200.00 per month from continuing
compensation payments.
FACTUAL HISTORY
On August 31, 2002 appellant, then a 54-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained spinal stenosis, a herniated disc, and
difficulties with both legs due to factors of her federal employment. She stopped work on
August 16, 2002. OWCP accepted the claim for a temporary aggravation of spinal stenosis.3 It
paid appellant compensation for total disability beginning September 7, 2002.
Appellant completed EN1032 forms none of forms from 2007 to 2014 and reported that
she did not receive benefits from SSA. On a Form EN1032 dated February 6, 2015, she advised
that she received a widow’s pension from SSA.
On March 24, 2015 SSA provided the entire amount that appellant received in SSA
retirement benefits including the part attributable to her federal service under Federal
Employees’ Retirement System (FERS) and the hypothetical amount that she would have
received without FERS. Including FERS, it indicated that she was entitled to a monthly payment
rate of $683.40 effective July 2007, $699.10 effective December 2007, $739.60 effective
December 2008 to 2010, $766.20 effective December 2011, $779.20 effective December 2012,
$790.80 effective December 2013, and $804.20 effective December 2014. Without FERS,
appellant was entitled to a monthly payment of $311.00 effective July 2007, $318.10 effective
December 2007, $336.50 effective December 2008 to 2010, $348.60 effective December 2011,
$354.50 effective December 2012, $359.80 effective December 2013, and $365.90 effective
December 2014.
By letter dated April 13, 2015, OWCP advised appellant that it was adjusting her
compensation to offset the portion of her SSA retirement benefits attributable to her federal
service.4 It informed her that the portion of the SSA benefits she received due to her work as a
federal employee was part of the FERS retirement program.
On April 24, 2015 OWCP notified appellant of its preliminary determination that she
received an overpayment of $38,168.89 because it had not reduced her compensation benefits
from July 1, 2007 to April 4, 2015 by the portion of her SSA benefits based on her federal
service. It calculated the overpayment by determining the difference between her SSA amount
with and without FERS for each period. OWCP then multiplied the daily offset amount by the
3

In a decision dated September 5, 2008, OWCP denied appellant’s claim for a schedule award. It found that she
had not submitted medical evidence sufficient to establish permanent impairment due to her accepted work injury.
4

In a decision dated April 16, 2015, OWCP found that appellant received an overpayment of $7,751.14 because
she received augmented compensation from February 21, 2012 to December 13, 2014 when she had no dependent.
It further found that she was at fault in the creation of the overpayment and that it would recover the overpayment by
deducting $50.00 from her continuing compensation payments. This overpayment decision is not presently before
the Board.

2

number of days in each period to find a total overpayment of $38,168.89. It further advised
appellant of its preliminary determination that she was at fault in creating the overpayment.
OWCP requested that she complete the enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documents. Additionally, it notified appellant that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence or a prerecoupment hearing.
Appellant submitted a completed overpayment recovery questionnaire dated
May 4, 2015. She noted monthly income of $2,441.96 and expenses of $2,390.22. Appellant
related that she advised OWCP on EN1032 forms beginning in 2007 that she received SSA
benefits. She indicated that in 2011 her former husband died and SSA switched her over to his
benefits. On May 15, 2015 appellant submitted supporting financial documentation and
requested a prerecoupment hearing.
In a Form EN1032 dated October 12, 2015, appellant indicated that beginning
September 2011 she received a widow’s pension from SSA for her deceased spouse of $950.00
monthly.
At the telephone hearing, held on December 17, 2015, appellant’s representative advised
that she had not included all of her monthly expenses on the overpayment recovery
questionnaire.
In a FERS/SSA dual benefits calculations form dated January 13, 2016, SSA provided
revised calculations for appellant’s SSA rate with FERS as $634.00 effective July and
September 2007, $648.60 effective December 2007, $686.20 effective December 2008 to 2010,
$970.10 effective September 2011, $1,005.00 effective December 2011, $1,022.00 effective
December 2012, $1,037.30 effective December 2013, $1,054.90 effective December 2014, and
$1,054.90 effective December 2015. It also provided her rate without FERS, which ranged from
$288.50 effective July 2007 to $339.40 effective December 2014.
By decision dated March 2, 2016, OWCP’s hearing representative found that appellant
received an overpayment of $38,168.89 for the period July 1, 2007 to April 4, 2015 as OWCP
failed to offset the portion of her SSA retirement benefits attributable to her federal service. She
further determined that appellant was at fault in creating the overpayment and that it would be
recovered by deducting $200.00 per month from continuing compensation.
On appeal appellant, through her representative, contends that she indicated on the
EN1032 forms that she was receiving SSA. She believed that OWCP was offsetting the SSA
amount from her compensation.
LEGAL PRECEDENT -- ISSUE 1
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.5 Section 8129(a) of FECA provides that, 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
5

5 U.S.C. § 8102.

3

be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.6
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, her compensation benefits shall be
reduced by the amount of SSA benefits attributable to her federal service.7
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.8 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefit, OWCP will obtain information from SSA
regarding the amount of the claimant’s SSA benefits beginning with the date of eligibility to
FECA benefits. SSA will provide the actual amount of SSA benefits received by the
claimant/beneficiary. It will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of compensation payable.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a temporary aggravation of spinal stenosis
causally related to factors of her federal employment. It paid her compensation for total
disability as of September 7, 2002.
The Board finds that the case is not in posture for decision. SSA, in a form dated
March 24, 2015, specified the amount that appellant received in monthly retirement benefits with
and without federal service from July 2007 to December 2014. It indicated that with FERS she
received a monthly amount ranging from $683.40 effective July 2007 to $804.20 effective
December 2014. Without FERS, appellant would receive a monthly payment ranging from
$311.00 effective July 2007 to $365.90 effective December 2014. Based on the March 24, 2015
form provided by SSA, OWCP determined that she received a $38,168.90 overpayment of
compensation as it failed to deduct the amount that she received in retirement benefits
attributable to her federal service from her compensation payments.
Prior to OWCP’s overpayment determination, SSA submitted another form dated
January 13, 2016 that provided different amounts for appellant’s monthly SSA rate with and
without FERS. It indicated that her monthly SSA benefits with FERS ranged from $634.00
6

Id. at § 8129(a).

7

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
9

See L.B., Docket No. 11-2076 (issued August 29, 2012).

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effective July 2007 to $1,054.90 effective December 2014, and her monthly SSA rate without
FERS ranged from $288.50 in July 2007 to $339.40 in December 2014.
Given the discrepancy in the amounts provided by SSA on two different forms covering
the same benefit period, OWCP should have further developed the evidence by obtaining
clarification from SSA as to appellant’s SSA rate with and without any offset from FERS.10 In
view of the conflicting information, it should also request that SSA verify that she received
retirement benefits based on her federal employment. Without accurate information from SSA
advising whether appellant was in receipt of retirement benefits based in part on federal service
and providing reliable figures of her monthly benefits, the Board is unable to determine whether
an overpayment exists and the amount of any overpayment. Additionally, appellant maintained
that beginning in 2011 she received SSA benefits based on her deceased husband’s employment
rather than her own.
On remand, OWCP should request that SSA confirm that appellant received SSA
retirement benefits based in part on her federal service, resolve the conflicting FERS offset
information provided, and address whether her benefits were her own or from her husband.
Following any further development as deemed necessary, OWCP shall issue an appropriate
decision.11
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation.

10

See K.G., Docket No. 16-0553 (issued June 21, 2016).

11

Based on the Board’s disposition of whether appellant received an overpayment of compensation, the issues of
fault and recovery are moot.

5

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: December 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 13-214
Issued: August 15, 2013

Case Submitted on the Record

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

JURISDICTION
On November 7, 2012 appellant filed a timely appeal from a May 21, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request for an increased
schedule award. 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 schedule award decision.
ISSUE
The issue is whether appellant has more than a 16 percent permanent impairment of the
left leg.
FACTUAL HISTORY
On December 14, 2000 appellant, then a 31-year-old mail carrier, filed a traumatic injury
claim alleging that on December 12, 2000 she injured her left foot when she twisted her ankle
walking down stairs. OWCP accepted the claim for left ankle sprain, an aggravation of
1

5 U.S.C. § 8101 et seq.

traumatic arthropathy and an aggravation of other enthesopathy of the ankle and tarsal.2
Appellant underwent a left triple arthrodesis on June 4, 2004. On May 19, 2006 Dr. George B.
Holmes, a Board-certified orthopedic surgeon, performed an arthrodesis of nonunion of the
calcaneocuboid joint, a removal of hardware, a bone graft and tenolysis of the peroneal tendons.
On August 30, 2007 appellant filed a claim for a schedule award. By decision dated
September 25, 2008, OWCP granted her a schedule award for a 16 percent permanent
impairment of the left leg. It issued an amended decision on December 18, 2008 clarifying that
the period of the award was from July 8, 2008 to May 26, 2009.
In a September 23, 2011 impairment rating, Dr. Jacob Salomon, a Board-certified
surgeon, discussed appellant’s history of a December 12, 2000 work injury and subsequent ankle
fusion and triple arthrodesis with a bone graft on May 19, 2006. He stated, “Since her surgery,
she has had chronic left ankle pain and swelling with decreased range of motion on evaluation.
She wears a permanent foot brace to stabilize her ankle while walking. Evaluation by physical
therapy reveals [five] degrees difference from her left foot to right foot for varus….” Using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), Dr. Salomon identified the diagnosis as a class 3 triple arthrodesis
with malalignment based on his findings on physical examination, which yielded a default
impairment value of 30 percent pursuant to Table 16-2 on page 508. He applied a grade modifier
of three for physical examination due to her difficulty walking, a grade modifier of two for loss
of range of motion in her physical examination and a grade modifier of two for clinical studies as
x-rays showed metallic hardware in the cuboid talus and calcaneum bone but no focal lesions.
After applying the net adjustment formula, Dr. Salomon moved the default value of 30 two
places to the left to find a total left lower extremity impairment of 26 percent.
On February 26, 2012 an OWCP medical adviser reviewed Dr. Salomon’s report and
noted that Dr. Holmes found that appellant’s x-rays showed a solid triple arthrodesis with no
indication of any alignment problems.3 He identified the diagnosis as a triple arthrodesis in
neutral position, which yielded a default grade of 10 percent. The medical adviser applied a
grade modifier of two for functional history as appellant wore a brace and a grade modifier of
one for physical examination. He utilized the net adjustment formula which moved the default
rating one to the right, for a 12 percent impairment. The medical adviser stated, “This differs
from Dr. Salomon’s rating because he has rated her as malaligned when previous documents
show neutral alignment of the fusion. If there continues to be a question, then new [x]-rays are
warranted….”
By decision dated April 12, 2012, OWCP denied appellant’s claim for an increased
schedule award.

2

In a decision dated October 15, 2001, OWCP determined that appellant had not established that she sustained a
recurrence of disability on January 15, 2001 due to her December 12, 2000 work injury.
3

An x-ray of appellant’s left foot, performed at the request of Dr. Salomon on September 8, 2011, showed an
[o]pen reduction internal fixation done of talus, calcaneum, cuboid and navicular bones with metallic clips and a
screws” with no focal lesions. The “overall osseous alignment” was within normal limits.

2

On May 4, 2012 appellant requested reconsideration. She submitted a magnetic
resonance imaging (MRI) scan study of the left ankle dated March 19, 2011 and x-rays of her left
foot dated September 8, 2011.
By decision dated May 21, 2012, OWCP denied modification of its April 4, 2012
decision.
On appeal appellant argues that her physicians found that she had a greater impairment
than awarded.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained left ankle sprain, an aggravation of traumatic
arthropathy and an aggravation of other enthesopathy of the ankle and tarsal. On June 4, 2004
appellant underwent a left triple arthrodesis and on May 19, 2006 she underwent an arthrodesis
to repair a nonunion of the calcaneocuboid joint, a bone graft and tenolysis of the peroneal
tendons. In a decision dated September 25, 2008, OWCP granted her a schedule award for a 16
percent permanent impairment of the left upper extremity.
On September 23, 2011 Dr. Salomon reviewed appellant’s history of injury and surgeries
and discussed her complaints of continued left ankle swelling, pain, loss of motion and need for a
permanent foot brace. He found that she had five degrees of varus on the left foot as opposed to
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 494-531.

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the right as measured during physical therapy. Applying Table 16-2 of the sixth edition of the
A.M.A., Guides, Dr. Salomon identified the diagnosis as a class 3 nonunion of the fracture with
triple arthrodesis and ankle malalignment, which yielded a default impairment rating of 30
percent. He applied a grade modifier of three for functional history (Table 16-6, 516) due to
appellant’s limitation in walking, her ankle pain and her need for a brace. Dr. Salomon
determined that she had a grade modifier of two for physical examination (Table 16-7, 517) due
to her loss of range of motion and a grade modifier of two for clinical studies (Table 16-8, 519)
based on x-rays showing an internal fixation with no focal lesions. He applied the net
adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) or (3-3) + (2-3) + (2-3) =
-2, and found that it moved the default value two spaces to the left, for a 26 percent total
impairment of the left lower extremity.
An OWCP medical adviser reviewed Dr. Salomon’s impairment evaluation and found
that x-rays showed a solid fusion. He determined that appellant had a class 1 impairment under
Table 16-2 for a triple arthrodesis in neutral position, which yielded a default value of 10
percent. The medical adviser applied a grade modifier of two for functional history as she wore
a brace, and a grade modifier of one for physical examination findings. After utilizing the net
adjustment formula, he concluded that appellant had a 12 percent permanent impairment of the
left lower extremity. The medical adviser related that his rating varied from Dr. Salomon
because Dr. Salomon found a misalignment but he found that x-rays showed a “neutral
alignment of the fusion.” He recommended additional x-rays if a question arose regarding the
alignment of the fusion.
The Board finds that the case is not in posture for decision. OWCP’s medical adviser
found that appellant had no malalignment based on x-ray evidence while Dr. Salomon found
malalignment based on physical examination. The A.M.A., Guides provides that alignment can
be determined “clinically and/or on the basis of radiographic studies; specific parameters may
vary by region.”9 Table 16-2 states that the diagnosis of arthrodesis is not used “with [clinical
studies] [x]-ray malalignment.”10 Neither Dr. Salomon nor OWCP’s medical adviser provided
adequate rationale for their conclusions regarding the extent of appellant’s ankle alignment. The
Board, consequently, finds that there is insufficient opinion on appellant’s impairment rating
consistent with the A.M.A., Guides. The case will be remanded for further development of the
medical evidence. On remand, OWCP should obtain an opinion from a second opinion examiner
regarding the extent of appellant’s left lower extremity impairment under the sixth edition of the
A.M.A., Guides. Following any necessary further development, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

9

Id. at 517.

10

Id. at 508, Table 16-2.

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ORDER
IT IS HEREBY ORDERED THAT the May 21, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: August 15, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
PEACE CORPS, VOLUNTEER SERVICES,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-0188
Issued: March 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2014 appellant filed a timely appeal of July 30 and September 11, 2014
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established disability for the periods May 28 to 30,
2014 and on or after June 3, 2014 causally related to her employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 11, 2014 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On May 12, 2014 appellant, then a 28-year-old Peace Corps volunteer in Namibia, filed
an occupational disease claim (Form CA-2) alleging that on March 27, 2014 she first realized
that her pregnancy was due to her employment. OWCP accepted her claim for an incidental
pregnant state.3
In a June 11, 2014 attending physician’s report (Form CA-20), Dr. Monica Brown, a
treating physician Board-certified in obstetrics and gynecology, diagnosed pregnancy with early
vomiting and nausea. She noted that appellant had been hospitalized with hyperemesis
gravidarum on May 23 to 27, and May 31 to June 2, 2014. Dr. Brown indicated no other period
of disability from performing appellant’s job.
Appellant filed a claim for wage-loss compensation (Form CA-7) for the period May 27
to June 9, 2014.
In a letter dated June 26, 2014, OWCP informed appellant that her claim was not payable
in its entirety. It stated that it had authorized payment for wage-loss compensation for the
periods May 23 to 27 and May 30 to June 1, 2014 as the evidence showed that she had been
hospitalized on those dates. The record reflects that appellant received supplemental roll
payments from May 23 to 27, 2014 and from May 31 to June 2, 2014. Appellant’s claim for
wage-loss compensation for the periods May 28 to 30, and June 3, 2014 to the present was
denied as she had not submitted any medical evidence supporting her claim of disability. OWCP
advised her to submit a medical narrative from her treating physician explaining why she was
unable to perform her volunteer duties due to her pregnancy. It gave appellant 30 days to
provide this information.
Following OWCP’s letter requesting additional information, appellant submitted a claim
for wage-loss compensation (Form CA-7) for the period June 10 to 23, 2014.
In a letter dated July 11, 2014, OWCP informed appellant that her claim for wage-loss
compensation on and after June 10, 2014 was not payable as there was no medical evidence
supporting disability due to the accepted condition. Appellant was advised as to the medical
evidence required to establish her claim and given 30 days to provide this information.
On July 24, 2014 OWCP received appellant’s claims for wage-loss compensation (CA-7
forms) for the period June 24 to July 21, 2014, and a July 24, 2014 attending physician’s report
(Form CA-20) from Dr. Lisa Martinez-Franco, a treating physician specializing in obstetrics and
gynecology. Dr. Martinez-Franco indicated a period of partial disability for the period July 24 to
November 26, 2014 due to appellant “suffering from nausea and vomiting during pregnancy.”
She advised that the condition of hyperemesis gravidarum might result in appellant being
disabled from performing the duties of her job. Dr. Martinez-Franco further advised that the
frequency and severity of the symptoms were unpredictable.

3

On May 11, 2014 appellant was medically separated from the employing establishment.

2

By decision dated July 30, 2014, OWCP informed appellant that her claim for wage-loss
compensation for the period May 28 to 30 and June 3 to 9, 2014 was denied. It noted that
appellant stopped work on May 28, 2014 and that the medical evidence failed to show that her
pregnancy disabled her from performing the duties of her volunteer position.
In correspondence dated August 13, 2014, OWCP requested from Dr. Martinez-Franco
clarification of appellant’s current medical status and disability. It then set forth questions for
her to answer regarding appellant’s current condition.
By decision dated September 11, 2014, OWCP denied appellant’s claim for wage-loss
compensation on and after June 10, 2014. It found that the medical evidence submitted failed to
establish that she was totally disabled from performing her duties as a volunteer due to her
pregnancy.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, the employee has the burden of establishing that she was disabled for work as
a result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.

4

Supra note 1.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

3

The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
OWCP accepted appellant’s claim for incidental pregnancy. Appellant received wageloss compensation for disability May 23 to 27 and May 30 to June 2, 2014. By decision dated
July 30, 2014, OWCP denied her claim for wage-loss compensation for the periods May 28 to
30, and June 3 to 9, 2014. On September 11, 2014 it issued a decision denying appellant’s claim
for wage-loss compensation on and after June 10, 2014. Appellant has the burden of establishing
by the weight of the substantial, reliable, and probative evidence, a causal relationship between
her claimed disability for the periods in question and the accepted condition.12
The only medical evidence appellant submitted relevant to disability for the periods
May 28 to 30 and June 3 to July 23, 2014 is a June 11, 2014 attending physician’s report from
Dr. Brown. OWCP paid wage-loss compensation for the dates Dr. Brown indicated that
appellant had been hospitalized with hyperemesis, which were May 5 to 7, 23 to 27, and May 31
to June 2, 2014. Appellant has not submitted any evidence establishing that she was totally
disabled from performing her job as a volunteer for the periods in question due to the accepted
incidental pregnant state. It is her burden of proof to provide evidence from a qualified
physician to establish her claim for wage-loss compensation for total disability for any period of
time. Thus, the Board finds that she has failed to meet her burden of proof.
In support of her claim for wage-loss compensation for the period July 24 to
November 26, 2014, appellant submitted attending physician reports by Dr. Martinez-Franco.
Dr. Martinez-Franco indicated that appellant was partially disabled for the entire period July 24
to November 26, 2014 as appellant was “suffering from nausea and vomiting during pregnancy.”
She advised that the condition of hyperemesis gravidarum might result in appellant being
disabled from performing the duties of her job. Dr. Martinez-Franco further advised that the
frequency and severity of the symptoms were unpredictable. The Board finds that this evidence
is not sufficient to establish appellant’s disability from performing her job as a volunteer for the
period July 24 to November 26, 2014.
Dr. Martinez-Franco’s opinion that appellant might require time and days off work in the
future due to the unpredictable frequency and severity of her hyperemesis gravidarum symptoms
is based on a fear of future injury. It is well established that the possibility of future injury or
disability is not a basis for payment of compensation.13 Dr. Martinez-Franco’s July 24, 2014
opinion related appellant’s disability from July 24 to November 26, 2014 to future possible
periods of disability rather than to appellant’s current condition or disability. As her opinion
11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Alfredo Rodriguez, 47 ECAB 437 (1996).

13

I.J., 59 ECAB 408 (2008); Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

4

regarding disability is based on a possibility of disability rather than actual disability, it is
insufficient to support her claim for wage-loss compensation for the period in question.
Therefore, the Board finds that appellant has not established that she was disabled for the period
July 24 to November 26, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled for the periods
May 28 to 30, and on or after June 3, 2014 causally related to her employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 11 and July 30, 2014 are affirmed.14
Issued: March 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

14

James A. Haynes, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 13-1615
Issued: December 12, 2013

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 June 27, 2013 appellant filed a timely appeal from a May 17, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d).
FACTUAL HISTORY
The case has previously been before the Board. By decision dated December 17, 2002,
the Board affirmed a May 30, 2002 OWCP decision finding that appellant was not entitled to a

1

5 U.S.C. § 8101 et seq.

schedule award for her accepted psychiatric conditions.2 In a decision dated October 2. 2006, the
Board found that OWCP did not meet its burden of proof to terminate her compensation as of
February 12. 2004.3 By decision dated April 6, 2012, the Board found OWCP properly
suspended appellant’s compensation for failure to submit requested information regarding any
employment activity.4 The history of the case as noted in the Board’s prior decisions is
incorporated herein by reference.
By letter dated October 30, 2012, OWCP advised appellant that a second opinion medical
evaluation was necessary. It noted that, if she did not provide acceptable reasons for missing the
appointment, or if she obstructed the examination, her benefits would be suspended pursuant to
5 U.S.C. § 8123(d). By letter dated November 2, 2012, addressed to appellant’s address of
record, she was advised that OWCP had scheduled an examination on November 19, 2012 with
Dr. Tarakumar Reddy, a psychiatrist, at 2:00 p.m. The letter provided the address of Dr. Reddy.
In a letter dated November 27, 2012, the medical services scheduler notified OWCP that
appellant did not appear for the scheduled examination.
In a letter dated December 13, 2012, OWCP advised appellant that it proposed to suspend
her compensation for failure to appear at the November 19, 2012 examination. It advised her
that, if she had good cause for her failure to attend, she should submit in writing her reasons
within 14 days. If appellant did not show good cause, her benefits would be suspended.
On February 22, 2013 appellant submitted a February 19, 2013 letter stating that any mail
received after September 17, 2012 had been returned to OWCP unopened. She referred to a
“requested examination” on November 19, 2012 and then provided contact information for a
dentist and family clinic. In a February 26, 2012 memorandum of a telephone call, appellant
stated that she was refusing to accept any mail from OWCP because “she was not asking for
anything.” She advised that she was not going to attend a second opinion examination. OWCP
indicated that it would resend a copy of the November 2, 2012 notification of appointment.
In a letter dated April 15, 2013, appellant stated that the telephone number provided was
for the medical services scheduler, not Dr. Reddy. By letter dated April 19, 2013, she stated that
she did not need to reschedule the appointment, as she was attempting to get an appointment in
her county of residence. In a letter dated April 26, 2013, appellant stated that she had attempted
to visit Dr. Reddy on April 22, 2013 but the address provided was “vacant.” The record contains
a May 16, 2013 OWCP e-mail in which that the medical services scheduler confirmed that the
address of Dr. Reddy was correct.
By decision dated May 17, 2013, OWCP suspended appellant’s compensation for failure
to attend the November 19, 2012 second opinion examination. It noted that the suspension
would cease when appellant complied with the scheduled examination.
2

Docket No. 02-1971 (issued December 17, 2002). OWCP accepted anxiety, depression and post-traumatic
stress disorder (PTSD) resulting from an April 22, 1998 employment incident.
3

Docket No. 05-1805 (issued October 2, 2006).

4

Docket No. 11-2102 (issued April 6, 2012).

2

LEGAL PRECEDENT
Section 8123(a) of FECA provides that “An employee shall submit to examination by a
medical officer of the United States, or by a physician designated or approved by the Secretary
of Labor, after the injury and as frequently and at times and places as may be reasonably
required.” The regulations governing the administration of FECA also provide that “the
employee must submit to an examination by a qualified physician as often and at such times and
places as OWCP considers reasonably necessary.”5 Under 5 U.S.C. § 8123(d), “If an employee
refuses to submit to or obstructs an examination, his right to compensation under this subchapter
is suspended until the refusal or obstruction stops.”
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation is suspended in accordance with 5 U.S.C. § 8123(d) until the date on which the
claimant agrees to attend the examination.6
ANALYSIS
OWCP advised appellant by letter dated November 2, 2012 of a scheduled second
opinion examination with Dr. Reddy on November 19, 2012. The letter was sent to her address
of record. Appellant did not appear for the scheduled examination. At the time of the
notification of the scheduled appointment, she was advised of the consequences under 5 U.S.C.
§ 8123(d) for failure to appear. OWCP provided appellant an opportunity to provide an
explanation for her failure to appear. It issued a December 13, 2012 letter advising her to
establish good cause for her failure to appear within 14 days or her compensation would be
suspended.
The evidence of record reflects that appellant intentionally refused to accept mail from
OWCP for a period of time. Although she did not specifically raise the issue, under these
circumstances any argument that proper notice of the examination was not provided would be
insufficient to provide a valid reason for the failure to appear for the scheduled examination.
Appellant submitted an April 26, 2013 letter, asserting that she had attempted to visit Dr. Reddy
in April 2013 but the location at the address provided was vacant. OWCP found that the address
provided to appellant was correct.
The issue is the scheduled appointment on
November 19, 2012. No evidence was presented that the address provided for Dr. Reddy was
incorrect at that time, nor did appellant allege that she attempted to visit Dr. Reddy on
November 19, 2012. Appellant did not accept mail from OWCP and telephone memoranda
indicates that she advised OWCP that she was not going to attend a second opinion examination.
The Board finds that appellant did not provide good cause for her failure to appear for the
scheduled examination. Pursuant to 5 U.S.C. § 8123(d) OWCP properly suspended her
compensation.
5

20 C.F.R. § 10.320.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13 (September 2010).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 17, 2013 is affirmed.
Issued: December 12, 2013
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 10-1116
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 12, 2010 appellant filed a timely appeal from a January 20, 2010 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 this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On November 20, 2008 appellant, a 56-year-old acting postmaster, filed a traumatic
claim for stress, anxiety and chest pains experienced while participating in an October 23, 2008
conference call that concerned the high rate of overtime usage. She alleged that this topic caused

her a great deal of stress and anxiety. Appellant stated that she collapsed on the floor and
sustained facial, hand and mid-back contusions.1
Appellant submitted an e-mail, in which Dale Whittenberg, a coworker, described his
frustrations with understaffing at the employing establishment facility. Mr. Whittenberg
criticized the decisions made by management, which he faulted for the lack of manpower.
In an October 8, 2008 e-mail, Donnie Vercher, appellant’s immediate supervisor,
described the supervisory and staffing problems at several facilities. He noted that the
Alexandria station had no station manager and was being operated with only one supervisor.
Mr. Vercher acknowledged that the postmaster at the Alexandria station could not work 24 hours
a day or by herself and correct the declining performance at the station. He stated that the
understaffing at the Alexandria station was apparent and attributed the shortage to the fact that he
did “not have anyone to send to Alexandria because no one wants to go anywhere in this state.”
Appellant submitted an email, dated October 23, 2008, in which Naomi Lawler, a
coworker, reported that appellant was taken to the hospital during a teleconference that day.
In a supplemental statement, appellant described her employment duties and
responsibilities. She served as acting postmaster at the Alexandria station twice and had been
short on supervisory personnel since August 4, 2008, consequently, she was required to perform
the work of several supervisors. Appellant alleged working 60 to 80 hours a week, was
mandated to work every Saturday and participate in two conference calls. She worked at this
pace for three months, during which she alleged taking only four days’ annual leave. On
October 23, 2008 appellant collapsed after experiencing chest pains, shortness of breath, anxiety,
high blood pressure and stress while on a conference call at work. She described the conference
calls as stressful and intense.
On October 24, 2008 Dr. Hussein Monir Abdelhalim, Board-certified in family medicine,
diagnosed hyperventilation syndrome, severe anxiety and depression. Appellant submitted
hospital records diagnostic tests and illegible treatment notes.
On October 27, 2008 Dr. Charles Ugokwe, a neurologist, presented findings on
examination and diagnosed syncope, migraine headache and facial pain.
By letter dated November 24, 2008, the employing establishment controverted
appellant’s claim.
By decision dated May 7, 2009, the Office denied the claim because appellant had not
established her alleged emotional condition was caused by compensable employment factors.
On May 19, 2009 appellant requested an oral hearing.
On June 29, 2009 Dr. Abdelhalim reviewed appellant’s history of injury and diagnosed
acute myocardial infarction (MI) and hypertension. He noted that she suffered a catastrophic
1

The record reflects appellant retired on January 2, 2009.

2

event at work and that her stressful and demanding job precipitated her condition. Addressing
causal relationship, Dr. Abdelhalim stated: “high stress level can aggravate and trigger an [acute
MI and hypertension].”
On October 20, 2009 Dr. Alfredo Torres, a Board-certified psychiatrist, presented
findings on examination. He diagnosed major depressive disorder, mood disorder due to
transient ischemic attack (TIA) and MI, alcohol dependence, pathological gambling and
hypertension.
The Office’s Branch of Hearings and Review conducted a hearing on November 9, 2009
at which appellant and her representative were present. Appellant stated that she was acting
postmaster at the Alexandria facility and that on October 21, 2009 she received a letter that
informed her she was denied a permanent postmaster position.
Appellant explained that the daily conference call pertained to performance at the
Alexandria facility and that 40 to 50 postmasters participated in these daily conference calls. She
explained that one of her stations was not performing up to par because of a staffing shortage and
that during the teleconference her managers stated: “it’s horrible how it looks, and that I needed
to improve that particular station.” Appellant stated she was subjected to similar humiliation
during several prior conference calls. Her manager accused her of not caring about her job.
Appellant objected to her managers’ negative comments, explaining that the poor performance
ratings were attributable to the fact that her facility was understaffed. She testified that while
listening to her managers’ comments she became very upset, her blood pressure rose and she
became dizzy. Appellant stated that her left arm became numb and then she passed out. She
testified that, on June 18, 2009, she experienced another psychological breakdown which she
attributed to thinking about her federal employment. However, appellant also admitted that she
retired on January 2, 2009 and therefore was not federally employed on June 18, 2009.
By decision dated January 20, 2010, the Office hearing representative modified the
Office’s May 7, 2009 decision to reflect that appellant had established overwork as a
compensable employment factor. However, the hearing representative affirmed the remainder of
the Office’s May 7, 2009 decision because the evidence of record did not demonstrate that the
established employment factor caused a medically-diagnosed condition.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the stress-related condition is causally related to the identified
compensable employment factors.2

2

Leslie C. Moore, 52 ECAB 132 (2000).

3

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.
When an employee experienced emotional stress in carrying out his or her employment duties,
and the medical evidence establishes that the disability resulted from an emotional reaction to
such situation, the disability is generally regarded as due to an injury arising out of and in the
course of employment. This is true when the employee’s disability results from his or her
emotional reaction to a special assignment or to the requirements imposed by the employing
establishment or by the nature of the work. A claimant must support his or her allegations with
probative and reliable evidence. Personal perceptions alone are insufficient to establish an
employment-related emotional condition.
An employee’s emotional reaction to an administrative or personnel matter is generally
not covered by workers’ compensation. The Board has held, however, that error or abuse by the
employing establishment in an administrative or personnel matter may afford coverage.4
ANALYSIS
Appellant alleged that she sustained stress as an acting postmaster at the Alexandria Post
Office due to overwork and because her post office was criticized during a teleconference on
October 23, 2008. She had been informed on October 21, 2008 that she would be replaced as
postmaster. The Office accepted overwork as a compensable employment factor.
Appellant’s allegation regarding overwork is essentially that she sustained stress while
carrying out the regular and specially assigned duties of her position. The record establishes that
the Alexandria Post Office was understaffed, that positions could not be filled at the station, and
in her capacity as acting postmaster, appellant worked in excess of 40 hours a week. Appellant
has established overwork as a compensable factor of employment pursuant to the principles set
out in Cutler.
The Board finds that appellant has not established any other compensable factors of
employment.
Appellant alleged that the teleconference of October 23, 2008 caused her stress. She
explained that one of her postal stations was severely understaffed and that her managers stated
that the performance of this station “looked horrible.” Appellant alleged being subjected to
similar humiliation during several prior conference calls. Not every statement uttered in the
workplace will give rise to coverage under the Act.5 Appellant must establish that her
supervisor’s action in this administrative matter were in error or abusive. She explained that her
stations were understaffed and that she was overworked. The fact that her managers
3

28 ECAB 125 (1976).

4

J.F., 59 ECAB 331 (2008); see generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
5

Harriet J. Landry, 47 ECAB 543, 547 (1996).

4

acknowledged these problems during the teleconference does not establish error or abuse in their
review of the station operations. Rather, appellant’s managers were merely performing their
duties in evaluating the status of the postal stations in question. There is no evidence of record
that appellant’s managers erred in discharging their administrative responsibilities during this
teleconference.6 Thus, appellant has not established a compensable employment factor under the
Act with respect to the statements made during the teleconference.
Appellant also attributed her condition to being denied promotion from acting to
permanent postmaster. An employee’s frustration over not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion is generally not
compensable under the Act. Determinations by the employing establishment concerning
promotions and the work environment are administrative in nature and not a duty of the
employee.7 The Board has held that, unless the employing establishment erred or acted
abusively in an administrative or personnel matter, there will be no coverage under the Act.8 In
this case, appellant submitted no evidence demonstrating that the employing establishment acted
unreasonably in its administrative and personnel decisions.
Appellant established overwork as a compensable factor of employment. The Board
must consider the medical evidence to determine whether she established that her diagnosed
conditions were caused by overwork. Causal relationship is a medical issue that can only be
proven by probative medical opinion evidence.9
Regarding the accepted factor of overwork, appellant has not provided sufficient medical
opinion to establish that this factor caused her diagnosed conditions. On October 24, 2008
Dr. Abdelhalim diagnosed hyperventilation syndrome, severe anxiety and depression. On
June 29, 2009 he diagnosed acute MI and hypertension. Dr. Abdelhalim stated that appellant had
suffered a “catastrophic” event at work and opined that her stressful and demanding job
precipitated her condition. This opinion is a vague statement based on appellant’s history of
injury. Dr. Abdelhalim did not provide full or accurate review of appellant’s employment
history or describe the accepted factor of overwork. He did not address appellant’s mental status
examination or list any prior history of emotional conditions. Dr. Abdelhalim did not offer a
rationalized medical opinion explaining how appellant’s overwork caused or aggravated the
conditions he diagnosed. Although he stated that “high stress level can aggravate and trigger
[acute MI and hypertension],” this is an opinion, which is not supported by a proper history of
appellant’s accepted factor of overwork or medical rationale explaining the physiologic process
involved. For these reasons, Dr. Abdelhalim’s opinion does not establish causal relationship.

6

See K.W., 59 ECAB 271 (2007).

7

See Thomas D. McEuen, supra note 4.

8

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

9

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB 293 (2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the
Office at the time of its final decision).

5

Dr. Torres diagnosed major depressive disorder, mood disorder due to TIA and MI,
alcohol dependence, pathological gambling and hypertension. Dr. Ugokwe diagnosed syncope,
migraine headache and facial pain. However, neither physician provided any opinion explaining
how these conditions were caused by overwork. Consequently, their opinions are of diminished
probative value.
CONCLUSION
The Board finds appellant has not established she sustained an emotional condition in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, SAFETY
DIVISION, FORT SMITH, GA, Employer
__________________________________________

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

Docket No. 08-658
Issued: November 4, 2008

Case Submitted on the Record

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

JURISDICTION
On December 26, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated November 15, 20071 granting him schedule
awards. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than nine percent impairment of his right upper
extremity and four percent impairment of his left upper extremity for which he received schedule
awards.

1

In his appeal to the Board, appellant limited his appeal to the Office’s November 15, 2007 schedule award
decision.

FACTUAL HISTORY
This case has previously been before the Board. On September 20, 2000 appellant, then a
45-year-old maintenance mechanic, sustained a deep cut to his right forearm when a sheet of
glass fell on him while in the performance of duty. The Office accepted appellant’s claim for
laceration of the right forearm. Appellant underwent a surgical repair of the right brachioradialis
tendon on February 28, 2001. The surgeon stated, “The brachioradialis was freed up distally and
we tried to attempt to bring it back to an elongated position but it was not able to be because of
fibrosis proximally and tendon adherence distally.”
Appellant filed a notice of occupational disease on February 4, 2002 alleging that he
developed carpal tunnel syndrome due to factors of his federal employment. On April 5, 2002
the Office accepted that he sustained an aggravation of left carpal tunnel syndrome on
May 1, 2001. Dr. Scott Gillogly, a Board-certified orthopedic surgeon, completed a report on
December 14, 2001. He opined that appellant had reached maximum medical improvement.
Dr. Gillogly diagnosed bilateral carpal tunnel syndrome and brachioradialis weakness, numbness
and dysesthesias. Appellant filed an additional claim for carpal tunnel syndrome on
December 24, 2003 when employed by the Department of the Navy. The Office accepted this
claim for aggravation of carpal tunnel syndrome.
In a report dated December 19, 2003, Dr. Gillogly diagnosed bilateral carpal tunnel
syndrome and work-related forearm laceration with concomitant brachioradialis weakness with
persistent symptoms. The district medical adviser reviewed appellant’s claims on January 25,
2005 and stated that appellant’s repair of the brachioradialis muscle had no complications and a
good result based on a November 29, 2000 magnetic resonance imaging scan.2 He opined that
appellant had four percent impairment of each of his upper extremities. In a letter dated
February 1, 2005, the Office informed appellant that he had four percent impairment to his upper
extremities bilaterally due to carpal tunnel syndrome but that he was not entitled to receive
compensation for wage loss concurrent with a schedule award.
By decision dated February 1, 2005, the Office found that appellant’s actual earnings as a
procurement technician fairly and reasonably represented his wage-earning capacity and reduced
his wage-loss compensation benefits. On February 28, 2005 appellant requested reconsideration
of his wage-earning capacity determination.3 By decision dated March 18, 2005, the Office
finalized an overpayment determination finding that appellant was not entitled to waiver. It
determined to withhold $200.00 from appellant’s continuing compensation benefits effective
March 20, 2005. At appellant’s request, the Board reviewed the February 1 and March 18, 2005
decisions and issued an order remanding case on March 10, 2006.4 The Board remanded the
case for additional development and merit decisions pertaining to appellant’s pay rate, wage-

2

The Board notes that this MRI scan predates the February 28, 2001 surgery which identified and repaired the
brachioradialis tear.
3

As the Office has not issued a final decision on this request, the Board will not address this issue on appeal.
20 C.F.R. § 501.2(c).
4

Docket No. 05-1391 (issued March 10, 2006).

2

earning capacity and overpayment. The facts and the circumstances of the case as set out in the
Board’s prior decision are adopted herein by reference.
Dr. Gillogly examined appellant on February 7, 2005 and found that he had reached
maximum medical improvement on that date. He diagnosed carpal tunnel syndrome in the right
upper extremity based on electromyelogram (EMG) and nerve conduction velocity studies
(NCV) as well as a work-related forearm laceration with brachioradialis weakness, numbness
and dysesthesia and surgical tendon repair. Dr. Gillogly stated that appellant experienced
continuing brachioradialis symptoms. He found carpal tunnel syndrome in the left upper
extremity based on EMG and NCV. In the right upper extremity, Dr. Gillogly found appellant
demonstrated two percent impairment of the upper extremity due to median nerve radial sensory
deficit of the right index finger, two percent impairment the upper extremity due to median nerve
radial sensory deficit of the right middle finger, one percent upper extremity impairment due to
radial sensory deficit of the median nerve in the ring finger and four percent upper extremity
impairment due to dysesthesias of the median nerve affecting appellant’s thumb. He described
that appellant had decreased grip strength due to brachioradialis laceration and repair resulting in
10 percent impairment of the right upper extremity. Dr. Gillogly concluded that appellant had 19
percent impairment of the right upper extremity. He also found that appellant had four percent
impairment of the left upper extremity due to median nerve radial sensory deficits in the left
index finger, left middle finger and thumb of one, one and two percent respectively.
In a report dated June 15, 2006, the district medical adviser found that appellant had
reached maximum medical improvement on February 7, 2005 and agreed that appellant had nine
percent permanent impairment of his right upper extremity due to median nerve neuropathy in
the index, middle, ring and thumb of the right hand which was caused by his employment-related
bilateral carpal tunnel syndrome. He disagreed that appellant was entitled to an additional
impairment rating for loss of grip strength. The district medical adviser stated that the
brachioradialis did not act on grip strength and that there were reports of full recovery of
function of the brachioradialis after repair. He found that appellant had four percent impairment
of the left upper extremity due to median nerve neuropathies.
Dr. Gillogly completed a second report on August 4, 2006 and repeated his earlier
diagnoses and impairment ratings. He described appellant’s history of injury including the
September 27, 2000 right forearm laceration and bilateral carpal tunnel syndromes. Dr. Gillogly
stated that May 2002 electrodiagnostic studies confirmed bilateral carpal tunnel syndrome. He
noted that appellant’s current findings included decreased grip strength and decreased sensation
particularly in the right hand and wrist. Dr. Gillogly stated that appellant did not currently wish
to undergo carpal tunnel releases.
In a letter dated November 21, 2006, the Office provided Dr. Gillogly with a copy of the
district medical adviser’s report and requested an updated impairment rating. Dr. Gillogly
completed a report on August 9, 2007 and reiterated his conclusions.
In a telephone call on September 21, 2007, the Office informed appellant that there was
disagreement between his physician and the district medical adviser and that additional
development of the medical evidence in the form of an impartial medical examination was
necessary. On November 1, 2007 the Office telephoned appellant and informed him that

3

additional medical evidence was not necessary as the district medical adviser was reviewing
Dr. Gillogly’s reports.
By decision dated November 15, 2007, the Office granted appellant schedule awards for
nine percent impairment of his right upper extremity and four percent impairment of his left
upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulation6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.7 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.8
The Act provides that, if there is a 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 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician of an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.10
ANALYSIS
Appellant’s attending physician, Dr. Gillogly, a Board-certified orthopedic surgeon,
completed reports on February 7, 2005, August 4 and 9, 2006 and opined that appellant had 19
percent impairment of his right upper extremity due to sensory impairments of the median nerve
impacting his thumb, middle and ring finger as well as motor deficits of the brachioradialis
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
9

5 U.S.C. §§ 8101-8193, 8123.

10

20 C.F.R. § 10.321.

4

tendon resulting in a loss of grip strength. The district medical adviser reviewed Dr. Gillogly’s
reports on behalf of the Office and opined that appellant was not entitled to an impairment rating
due to motor impairment of his brachioradialis. He disagreed both with the use of grip strength
to determine a motor impairment and with Dr. Gillogly’s finding that appellant had continuing
symptoms in his brachioradialis following the surgical repair.
The Board finds that there is an unresolved conflict of medical opinion evidence
regarding the extent of appellant’s permanent impairment due to both of his accepted right arm
injuries. As noted, the district medical adviser found that the medical evidence suggested that
appellant did not have any continuing symptoms of his brachioradialis following the surgical
repair. Dr. Gillogly examined appellant and found that he had continuing motor deficits which
warranted a permanent impairment rating. Based on these differences of medical opinion, the
case will be remanded to refer appellant to an appropriate Board-certified physician for an
opinion on the extent of permanent impairment. After such other development of the evidence as
the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that there is an unresolved conflict of medical opinion evidence
regarding the extent of appellant’s permanent impairment for schedule award purposes which
requires additional development of the medical evidence by the Office.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: November 4, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
Waco, TX, Employer
)
___________________________________________ )
L.S., Appellant

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

Docket No. 07-776
Issued: August 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated December 27, 2006 which affirmed the October 2, 2006
denial of her claim. Under 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 in establishing that she developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On August 18, 2006 appellant, then a 51-year-old purchasing agent, filed an occupational
disease claim alleging that she developed a sore throat, sinus and respiratory problems, including
sinusitis, caused by factors of her federal employment. She first became aware of her condition
and related it to her employment on August 15, 2006. Appellant did not stop work.

By letter dated August 30, 2006, the Office requested factual information from appellant
and the employing establishment. The Office subsequently received work orders dating from
October 21, 2002 to August 16, 2006, pertaining to leaks, stained ceiling tiles and dripping water
in several rooms, including rooms 506 and 507 of the employing establishment.
In an August 17, 2006 emergency room note, Dr. Roger W. Kylberg, Board-certified in
family medicine, indicated that appellant had nasal congestion and severe headaches for the prior
three weeks. He noted that appellant indicated there were water leaks in the room above at work
and there was mildew and mold. Dr. Kylberg diagnosed sinusitis. The Office also received
discharge instructions dated August 17, 2006 from a nurse. Appellant also submitted copies of
prescriptions dated August 17, 2006 from a Dr. Van S. Mask.1 She also submitted an article on
indoor air and mold and microbiology laboratory reports.
In a September 15, 2006 report, Dr. Kylberg noted that appellant needed to be “off work
until September 25[, 2006] because of chronic nasal drainage, cough and headache from
continuous work exposure to respiratory irritants.”
In a September 18, 2006 statement, appellant alleged that she was exposed to water from
leaks in the rooms that she worked in since 2002 and that there was an excess of dust, odors,
moisture and fumes. She described a leak that occurred on August 16, 2006 in both rooms 506
and 507 and alleged that on August 17, 2006 she had to go to the emergency room due to
respiratory symptoms which included headaches, a sore throat and sinus pressure.
In an e-mail dated September 6, 2006, the employing establishment confirmed that
appellant worked in room 507, which was the area where the leak occurred. The employing
establishment noted that appellant also worked in room 506 which was found to have mold and a
leak. The employing establishment indicated that appellant moved to another office while the
leak was repaired and the tiles were replaced and that appellant was in her office for “less time
now.”
By decision dated October 2, 2006, the Office denied appellant’s claim for compensation
as the medical evidence failed to demonstrate that her sinusitis condition was causally related to
the established work-related events.
On October 10, 2006 appellant requested reconsideration and submitted additional
evidence. She alleged that the mold Alternia was found in the room that she worked in and was
found in her allergy skin test. Appellant stated that she was highly allergic to the mold. She
alleged that she had been working in the area, exposed to the mold since 2002. Appellant
submitted an article on Alternia and the results from an allergy skin test.
The Office received additional evidence which was comprised of work orders, some of
which were previously submitted, pertaining to the leaks and mold in rooms 506 and 507, a copy
of her September 18, 2006 statement, a copy of Dr. Kylberg’s September 15, 2006 report, copies
of laboratory reports and her emergency room records from August 17, 2006 and nurses notes.
In an August 22, 2005 x-ray of the chest, Dr. Karen J. Stewart, a Board-certified diagnostic
1

This “physician’s credentials” cannot be determined.

2

radiologist, noted that there was a question with regard to whether appellant had emphysema.
She advised that no pulmonary infiltrates were seen and that appellant’s cardiovascular silhouette
was normal. Dr. Stewart advised that appellant had calcified granulomas, which were consistent
with “previous glaucomatous disease.”
The Office received treatment notes from Dr. Kylberg dated August 30 to
September 12, 2006. On August 30, 2006 Dr. Kylberg indicated that appellant related that she
felt like she was exposed to mold since 2002. Appellant also related that there was a water
cistern right above her office which was full of water for the prior four years and was dripping
from the vent in her office and splattering, exposing her to mold. Dr. Kylberg diagnosed
“chronic sinusitis with possible mild exposure, possible standing water exposure,” and indicated,
“consider Legionella.” He added work exposure to mold and recommended avoiding exposure
to regions that would cause mold exposure. On September 12, 2006 Dr. Kylberg opined that
“[e]ven if she does not have a fungal infection, if she is allergic to aspergillus, being in this work
situation will make her chronically ill. She is to hold off on antibiotic at this time because if we
are dealing with a fungal infection, antibiotics will not help and will possibly even worsen the
situation.”
In a September 20, 2006 report, Dr. William F. Long, Board-certified in obstetrics and
gynecology, diagnosed allergic rhinitis and allergic conjunctivitis. He noted that appellant was
advised to stay in an area that did not have mold infestation and to stay away from strong odors,
strong smells and chemicals.
By decision dated December 27, 2006, the Office denied modification of the October 2,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

3

or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she developed an occupational disease in the performance of duty. The Office found that
appellant was exposed to mold and leaks at the employing establishment. However, appellant
submitted insufficient medical evidence to establish that her sore throat, sinus and respiratory
conditions were caused or aggravated by these exposures in her employment.
Appellant submitted several reports from Dr. Kylberg. In an August 17, 2006 emergency
room notes, Dr. Kylberg diagnosed sinusitis. On September 15, 2006 he advised that appellant
needed to be “off work until September 25[, 2006] because of chronic nasal drainage, cough and
headache from continuous work exposure to respiratory irritants.” While he indicated that
appellant related that there were water leaks as well as mold and mildew at work, Dr. Kylberg
did not provide an opinion on causal relationship. In an August 30, 2006 treatment note,
Dr. Kylberg indicated that appellant related that she was exposed to water leaks and mold at
work. He diagnosed “chronic sinusitis with possible mild exposure, possible standing water
exposure,” and indicated, “consider Legionella.” However, this report is speculative. While the
medical opinion of a physician supporting causal relationship does not have to reduce the cause
or etiology of a disease or condition to an absolute certainty, neither can such opinion be
speculative or equivocal. The opinion of a physician supporting causal relationship must be one
of reasonable medical certainty that the condition for which compensation is claimed is causally
related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.6 Dr. Kylberg, while noting work exposure to mold,
recommended avoiding exposure to regions that would cause mold exposure. However, his
report did not contain any medical rationale explaining how appellant’s exposures at work
caused or aggravated her claimed conditions. A medical report is of limited probative value on

5

Id.

6

Thomas A. Faber, 50 ECAB 566 (1999) Samuel Senkow, 50 ECAB 370 (1999).

4

the issue of causal relationship if it contains a conclusion regarding causal relationship that is
unsupported by medical rationale.7
The record also contains a September 12, 2006 report from Dr. Kylberg, an August 17,
2006 prescription from Dr. Mask, laboratory reports and emergency room records from
August 17, 2006, an August 22, 2005 x-ray from Dr. Stewart and a September 20, 2006 report
from Dr. Long in which he diagnosed, including allergic rhinitis, allergic conjunctivitis and
advised that appellant stay away from areas with mold infestation, strong odors, strong smells,
and chemicals. However, these reports are insufficient as they did not provide any opinion on
causal relationship.8
The record also contains information from nurses. However, health care providers such
as nurses, acupuncturists, physician’s assistants and physical therapists are not physicians under
the Act. Thus, their opinions on causal relationship do not constitute rationalized medical
opinions and have no weight or probative value.9
Appellant also submitted several articles about mold. The Board has held that newspaper
clippings, medical texts and excerpts from publications are of no evidentiary value in
establishing the causal relationship between a claimed condition and an employee’s federal
employment. Such materials are of general application and are not determinative of whether the
specific condition claimed is related to the particular employment factors alleged by the
employee.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no medical evidence explaining how appellant’s employment duties caused or
aggravated her sore throat, sinus and respiratory problems, appellant has not met her burden of

7

Robert S. Winchester, 54 ECAB 191 (2002).

8

Id.

9

Jan A. White, 34 ECAB 515, 518 (1983).

10

William C. Bush, 40 ECAB 1064, 1075 (1989).

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

5

proof in establishing that she sustained a medical condition in the performance of duty causally
related to factors of her employment.13
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2006 decision of the Office of
Workers’ Compensation Programs is hereby affirmed.
Issued: August 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

The Board notes that, subsequent to the Office’s December 27, 2006 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

6