United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., widow of M.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SPACE & MISSILE SYSTEMS CENTER,
El Segundo, CA, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1080
Issued: March 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 3, 2018 appellant, through counsel, filed a timely appeal from a February 26, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to
survivor benefits due to the deceased employee’s suicide.
FACTUAL HISTORY
On April 25, 2017 appellant, the employee’s widow, filed a claim for compensation by
widow, widower, and/or children (Form CA-5) for survivor benefits in her capacity as wife of the
deceased employee. She noted the nature of injury which caused death as “suicide” and listed a
date of death as August 28, 2014. An unsigned Official Superior’s Report of Employee’s Death
(Form CA-6) also noted a date of death as August 28, 2014 and description of the injury as
“unknown.”
A notification of personnel action (Form SF-50) indicated that the employee worked in the
Information Technology (IT) department for the employing establishment. The record reveals
that, in 2010, the employee was appointed as the designated Information Systems Security
Manager (ISSM). He was subsequently relieved of his role as ISSM and was counseled on his
work performance. In 2012 the employee was reinstated to the ISSM role.
OWCP received a 32-page memorandum of expert findings by D.B., a licensed private
investigator, along with various records, reports, documents, and photographs that he had
reviewed. The memorandum provided a timeline of events leading up to the employee’s death.
In March 2014, Lieutenant Colonel (LTC) D.K. learned that the employee had started
unsubstantiated rumors about his supervisor, Special Security Officer (SSO) A.P.’s, financial nondisclosures. It indicated that concerns were also raised regarding the employee’s work
performance. LTC D.K. informed the employee of a pending investigation and potential
disciplinary action. The memorandum noted that, from March 10 to 18, 2014, the employee was
off work on sick and personal leave. On March 18, 2014 he attempted suicide and was hospitalized
from March 18 to April 29, 2014. The employee was subsequently diagnosed with moderate
recurrent major depression and received psychiatric help. On April 30, 2014 he returned to parttime modified duty, working four hours per day. On Thursday, May 1, 2014 LTC D.K. informed
the employee that the investigation was complete and advised him of an upcoming meeting on
Monday, May 5, 2014 in order to discuss potential disciplinary action. The employee asked LTC
D.K. if he could disclose the results of the investigation and potential discipline, but LTC D.K.
informed the employee that he could not discuss the results of the investigation. The memorandum
noted that Friday, May 2, 2014, was the employee’s regular day off.
The memorandum further indicated that, when the employee did not report to work on
Monday, May 5, 2014 and was not at home when appellant returned from work, she attempted to
locate him. When appellant was unable to reach him by cell phone or otherwise locate him, she
filed a missing person’s report that evening. The memorandum noted that on May 9, 2014 the
employee’s vehicle was found abandoned in a public area. It reported that on May 11, 2014
appellant found a handwritten note dated May 5, 2014 and signed by the employee in their trust
papers, which stated: “[Appellant] shall get all upon my death ... Don’t forget AF life insurance.”
The memorandum related that on August 28, 2014 the employee’s remains were found in a remote
location, approximately two miles from the location of his abandoned vehicle. The remains were

2

not positively identified as the employee until September 17, 2014. The memorandum noted that
foul play was not suspected as there were no suspicious circumstances.
The memorandum also provided a detailed summary of the employee’s medical history. It
noted that the employee had been treated for anxiety in 1993, for depression in 2006 when his
biological father died, and for depression in 2011 when his mother died. The memorandum noted
that according to the employee’s March 2014 hospitalization records, he was receiving treatment
for depression with suicide attempt. The employee had reported problems with his boss, a toxic
work environment, being under investigation, and work written reprimands as attributing to his
depression. The memorandum indicated that, after four weeks of group therapy, the employee was
discharged with a good prognosis. It related that he no longer had suicide ideation, but he did not
want to return to work and was exploring options to maximize retirement benefits.
The record also contained the employee’s suicide letter from his March 2014 suicide
attempt. The employee described the depression he suffered from after both of his parents died.
He also related that he found out recently that he was under investigation at work and guessed that
it was for something that SSO A.P. “cooked up.” The employee also provided a history about his
time with the employing establishment and with SSO A.P. He explained that around June 2010,
SSO A.P. had been promoted over him to a GS-13 level position. The employee indicated that
soon after her promotion, SSO A.P. asked him for a general appraisal of the situation within his
department. He informed her that he did not have nearly enough staff and that they seemed to
have a problem with constant turnover. The employee explained that he needed more staff because
the users of their system had grown 600 percent from 60 to almost 360 users. He also pointed out
that they had more reporting requirements and were in charge of a video teleconferencing system.
The employee also described that in September 2011 he took two months of Family and Medical
Leave Act (FMLA) leave to care for his ill mother, who eventually died. He noted that she left
him a sizable inheritance and that he disclosed the financial information to SSO A.P. as is required
for someone with his security clearance. The employee related that when he saw SSO A.P., after
he returned to work, the first thing she said was “I guess your give a s*** factor just went out the
window.”
The memorandum concluded that “Upon discharge from therapy and return to full-time
work status, [the employee’s] disappearance and suicide were the result of his toxic workplace
environment created by his superiors.” It explained that he was subject to conduct by his superiors
that was severe or pervasive enough to create a work environment that a reasonable person would
consider to be intimidating, hostile, or abusive. The memorandum reported that the employee’s
initial suicide attempt and consequential hospitalization and outpatient group therapy, followed by
his disappearance and suicide, were “materially and substantially aggravated by the workplace
conditions created by his superiors.”
The record also contains an extensive case file from the Air Force Office of Special
Investigations,3 which included various investigative reports, e-mails, personnel records,
statements, internal memorandums, medical reports, interview notes, and other documents,
3

The Board notes that large portions of the documents, specifically names and other personal identifiable
information (PII) have been redacted. The lack of PII makes it difficult to identify which people the documents are
about.

3

regarding the investigation into the facts and circumstances surrounding the employee’s
disappearance and death and the unauthorized media found in his desk after his death. The case
file contained various reports of investigative activity dated September 19, 2014 to May 29, 2015.
The reports indicated that on February 24, 2014 the employee received an oral admonishment
based on delays in accomplishing assigned work and failure to carry out assigned work. On
March 4, 2014 he was issued a “Letter of Investigation.” The reports also indicated that the
employee had performance issues at work, struggled to keep up with a high workload, and had a
difficult relationship with his supervisors at work.
In a statement dated October 10, 2014, appellant related that around 2010 the employee
began to express concerns to her about a large increase in the amount of work. She indicated that
from 2010 to 2014 he became increasingly frustrated with work. Appellant described how the
employee took care of his sick mother from June to September 2011 before she died. She reported
that he suffered from depression after his mother passed away and also felt like his supervisors at
work were not being supportive. Appellant also asserted that SSO A.P. had violated the
employee’s privacy by disclosing to other coworkers that he obtained a sizable inheritance after
his mother passed away. She indicated that on March 4, 2014 he was informed that there was a
pending investigation about him. On March 18, 2014 appellant came home from work and found
the employee passed out in the kitchen floor. She reported that, after the March 2014 suicide
attempt, he attended a work-related stress program for six weeks and returned to part-time
modified-duty work on April 30, 2014. Appellant explained that because the employee’s work
situation did not improve, they decided that the employee should officially resign his position. She
related that at approximately 11:30 a.m. on May 5, 2014 the employee informed her that he had
resigned from his position. Appellant reported that when she returned home from work and the
employee was not there, she attempted to locate him. She alleged that, according to telephone
records, the employee called the employing establishment 29 times on May 5, 2014. Appellant
noted that one of her biggest questions is what did LTC D.K. say to the employee that made him
disappear.
By letter dated June 1, 2017, the employing establishment controverted appellant’s claim.
It contended that there was no conclusive cause of death because the employee’s alleged suicide
was not confirmed by the evidence. The employing establishment also asserted that there was no
medical documentation to establish that the employee’s disappearance and subsequent death was
causally related to his employment. It further alleged that there was no compensable factor of
employment.
By development letter dated August 22, 2017, OWCP advised appellant that it required
additional medical evidence to establish that the employee’s death was causally related to factors
of his federal employment. It requested that she submit a medical report providing a history of the
disease which caused or aggravated the employee’s condition resulting in death, a diagnosis of the
disease, and an opinion on the relationship of the disease and death to factors of his federal
employment. OWCP also requested that appellant describe what specific employment factors she
believed resulted in his death.
Appellant responded to OWCP’s development letter on September 18, 2017. She related
that, based on the recommendation of the employee’s doctor, he decided to return to work part
time on April 30, 2014. Appellant indicated that, after the employee returned to work, he told her

4

that LTC D.K. would not give him information about the March 2014 investigation. She explained
that she and the employee decided that he would resign from his position. Appellant again
described the events from May 1 to 5, 2014 leading up to the employee’s disappearance. She also
detailed her attempts to contact LTC D.K. after the employee’s disappearance in order to gain
more information about the toxic work environment and why the employee may have disappeared.
OWCP also received a forensic psychological evaluation report by Dr. Seth Bricklin, a
clinical psychologist, dated August 9, 2017. Dr. Bricklin explained that appellant had contacted
him to determine whether incidents at the employee’s work were a cause or contributing factor in
his suicide. He provided a summary of his interviews with various individuals, including D.B.,
the private investigator, appellant, and the employee’s coworkers. Dr. Bricklin noted that in an
interview, K.W., the employee’s former coworker and personal friend, related that after SSO A.P.
was promoted over the employee, the employee complained of being overworked. Furthermore,
Dr. Bricklin recounted that G.C., the employee’s former coworker, had noted that the employee
was overwhelmed by his job. G.C. explained that the employee’s IT department had three people,
but after two months, there were only two individuals working.
Dr. Bricklin also reviewed the employee’s psychiatric and medical treatment records. He
noted diagnoses of major depressive disorder, recurrent heart condition, and other problems related
to employment. Dr. Bricklin reported that the employee became clinically depressed after he
returned to work from being on leave to care for his mother. He explained that the employee
realized that the only option that would allow him to maintain his dignity would be to retire with
a clean record. Dr. Bricklin reported that once the employee believed that he was going to be
disciplined, or possibly fired, suicide became the only option. He concluded that the employee’s
suicide was a result of “a diagnosis of [m]ajor [d]epression and that the cause of his depression
was directly related to stress due to mistreatment at work.”
In an October 25, 2017 letter to OWCP, the employing establishment noted that it was
responding to OWCP’s August 22, 2017 development letter. It related that the employee was at
work on Thursday, May 1, 2014, when LTC D.K. spoke with the employee and asked to see him
on Monday, May 5, 2014 to discuss the results of the investigation. The employing establishment
explained that at the time of the May 1, 2014 conversation, LTC D.K. had decided that he would
impose a Letter of Reprimand on the employee. It reported that, on May 5, 2014, the employee
called LTC D.K. and asked if he needed to bring a lawyer to his meeting and LTC D.K. told him
no. The employee also asked LTC D.K. if the issue would go away if he resigned and LTC D.K.
told him that he could not answer that question. He then asked what the results of the investigation
were and LTC D.K. informed him that he could not give him the results over the telephone. The
employing establishment related:
“The manner in which [LTC D.K.] chose to handle this notification may be
inconsistent with advice offered during training for [employing establishment]
supervisors. A more prudent approach would typically be to refrain from
communicating troubling information at the end of the workweek so that the
employee is not left alone over the weekend assuming a worst case outcome without
any emotional support being available. This consideration would be especially
important when dealing with an employee who has been undergoing treatment for

5

depression after a failed suicide attempt. See Suicide Prevention Program,
paragraphs 2.29.1&3 and 3.1.6, 6 October 2014, as amended.”
The memorandum also reported that on June 1, 2015 General S.G., the prior commander
at the employing establishment, served a Notice of Proposed Reprimand on LTC D.K., which
faulted him for major security lapses within his organization and also for his treatment of the
employee. It included an excerpt from the letter to LTC D.K.:
“You exercised questionable judgment and leadership with respect to your
treatment of subordinates…. When [the employee] returned from sick leave on
Thursday, May 1, 2014, you informed him that the investigation was complete and
that you would apprise him of the results on the following Monday, since Friday,
May 2, 2014, was [the employee’s] regularly scheduled day off. Despite [the
employee’s] recent mental health treatment and his subsequent questions to you
about whether the matter could be resolved by his submitting his resignation, you
failed to take steps to show your concern for his well-being, deepened his anxiety,
and failed to arrange any other support for him. [The employee] did not report for
duty the following Monday and subsequently disappeared.”
General S.G. further noted:
“I am disturbed by the apparent lack of sufficient concern and empathy for an
employee who was known to be suffering from stress. You failed to take aggressive
steps to execute as a wingman to demonstrate your concern for the well-being of
an employee who had just returned from receiving medical treatment. You also
failed to arrange for support for [the employee] from others in the unit or from the
many helping agencies on the installation. In the future, I expect you to exercise
better judgment in supporting personnel subject to your authority.”
By decision dated February 26, 2018, OWCP denied appellant’s claim for survivor benefits
finding that she had failed to establish a compensable factor of employment that could have caused
an emotional condition that led to the employee’s suicide in May 2014. It specifically noted that
a letter of proposed reprimand to LTC D.K., regarding his dealings with the employee, was
insufficient to establish error or abuse and was therefore insufficient to establish that the
employee’s death resulted from his employment.
LEGAL PRECEDENT
A claimant for survivor benefits has the burden of proving by the weight of the reliable,
probative, and substantial evidence that the employee’s death was causally related to his or her

6

employment.4 To establish his or her claim that a deceased employee sustained stress in the
performance of duty, which precipitated his or her death, a claimant must submit the following:
(1) Factual evidence identifying and supporting employment factors or incidents
alleged to have caused or contributed to his or her condition;
(2) Rationalized medical evidence establishing that his or her death was due to or
aggravated by an emotional reaction; and
(3) Rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her death.5
Appellant has the burden of proof to establish by a preponderance of the reliable, probative,
and substantial evidence the existence of a causal relationship between the employee’s death by
suicide and factors of his or her federal employment.6 The suicide itself must arise out of the
employee’s assigned duties to such an extent as to be regarded as arising out of and in the course
of employment.7 In determining whether an employee’s suicide is causally related to factors of
his or her employment, OWCP has adopted the chain of causation test.8
The Federal (FECA) Procedure Manual explains that not all suicide claims are precluded
by 5 U.S.C. § 8102(a)(2)9 and provides, compensation can be paid if the job-related injury (or
disease) and its consequences directly resulted in the employee’s domination by a disturbance of
the mind and loss of normal judgment which, in an unbroken chain, resulted in suicide.10 The
emphasis is on a showing of genuine brain derangement of psychosis, as distinguished from mere
melancholy, discouragement, or other sane condition such as depression.11 Under the chain of
causation test, OWCP’s procedures provide that, if the injury and its consequences directly resulted
in a mental disturbance, or physical condition which produced a compulsion to commit suicide,
and disabled the employee from exercising sound discretion or judgement so as to control that
compulsion, then the test is satisfied and the suicide is compensable.12 OWCP’s procedures add

4

L.R. (E.R.), 58 ECAB 369 (2007).

5

See Martha L. Watson, 46 ECAB 407 (1995).

6

Rosita Mahana (Wayne Mahana), 53 ECAB 503 (2002).

7

Id.

8

Id.

9
Section 8102(a)(2) of FECA precludes payment of compensation for disability or death sustained in the
performance of duty where the injury or death is caused by the employee’s intention to bring about the injury or death
of himself, herself, or another. See 5 U.S.C. § 8102(a)(2).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.15 (September 1995).

11

A. Larson, The Law of Workers’ Compensation § 38.01 (2016).

12

See supra note 10 at Chapter 2.804.15(b)(2).

7

that, for the suicide to be compensable, the chain of causation from the injury to the suicide must
be unbroken.13
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.14 In the case of Lillian Cutler,15 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition under FECA. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA.16 Where the claimed condition results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the condition comes within the coverage of FECA.17 On the other hand, when an
injury or illness results from an employee’s feelings of job insecurity per se, fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
hold a particular position, unhappiness with doing work, or frustration in not given the work
desired or hold a particular position, such injury or illness falls outside FECA’s coverage because
they are found not to have arisen out of employment.18
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from the
employee’s performance of his or her regular duties, these could constitute employment factors.19
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.20 A claimant must establish a
factual basis for his or her allegations that the harassment occurred with probative and reliable
evidence. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred.21 With regard to emotional claims arising
under FECA, the term harassment as applied by the Board is not equivalent of harassment as
defined or implemented by other employing establishments, such as the Equal Employment
Opportunity Commission, which is charged with statutory authority to investigate and evaluate
such matters in the workplace. Rather, in evaluating claims for workers’ compensation under

13

Id. at Chapter 2.804.15(b)(3).

14

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

15

28 ECAB 125 (1976).

16

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

17

L.S., Docket No. 16-0769 (issued July 11, 2016).

18

William E. Seare, 47 ECAB 663 (1996).

19

David W. Shirey, 42 ECAB 783, 795-96 (1991).

20

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

21

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

8

FECA, the term harassment is synonyms, as generally defined with persistent disturbance, torment,
or persecution, i.e., mistreatment by coemployees or workers.22
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regularly or specially
assigned work duties of the employee and are not covered under FECA.23 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.24
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.25
In cases involving emotional or stress-related conditions, the Board has held that when
working conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are deemed
compensable work factors of employment and are to be considered by a physician when providing
an opinion on causal relationship and which working conditions are not deemed compensable
factors of employment and may not be considered.26 If an employee does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim. The claim must be supported by probative evidence.27 If a
compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence.28
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that appellant has established overwork as a compensable employment
factor. Overwork, when substantiated by sufficient factual corroboration, may constitute a
compensable factor of employment.29 Appellant submitted evidence which reveals that the
employee had alleged, prior to his death, that he was suffering from stress at work due to an
increased workload. In the employee’s March 2014 suicide letter he related that he had informed
22

Beverly R. Jones, 55 ECAB 411 (2004); supra note 20.

23

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
24

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

25

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

26

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

27

Charles E. McAndrews, 55 ECAB 711 (2004).

28

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

29

See I.P., Docket No. 17-1178 (issued June 12, 2018); Bobbie D. Daly, 53 ECAB 691 (2002).

9

his supervisor that he was understaffed because their system’s users had grown 600 percent from
60 to almost 360 users. The employing establishment has not contested the assertion that the
system had grown in the manner the employee had indicated prior to his death. The employee also
indicated that he had more reporting requirements and was in charge of a video teleconferencing
system. He noted that SSO A.P. told him that she would get him more help, but the help did not
come. Furthermore, in an October 10, 2014 statement, appellant related that, around 2010, the
employee became increasingly frustrated about a large increase in his workload. Dr. Bricklin also
recounted that K.W., had indicated that the employee complained of being overworked. He also
related that according to an interview with G.C., the employee’s former coworker, the employee
was overwhelmed by his job duties. In his interview G.C. explained that the employee’s IT
department had three people, but after two months, there were only two individuals working. The
employing establishment did not challenge these allegations and they are supported by
corroborating statements of coworkers, appellant, and the contemporaneous documentation
including the employee’s suicide note. The Board thus finds that the evidence of record is
sufficient to substantiate the allegations of overwork and thus establish a compensable
employment factor.
Appellant has also contended that the employee sustained workplace stresses, which
caused him to commit suicide, as a result of a toxic work environment by his supervisors. She has
specifically questioned the actions of LTC D.K. from May 1 to 5, 2017, which preceded the
employee’s disappearance and death. As noted above, when an employing establishment’s actions
in an administrative matter are shown to be erroneous or abusive, the claim is compensable.30 The
record reflects that on March 1, 2014 LTC D.K. advised the employee of a meeting on May 5,
2014 that the investigation was complete, and that he had already prepared a Letter of Reprimand.
However, instead of advising the employee of the results of the completed investigation and
subsequent disciplinary action, LTC D.K. made the employee wait until the following Monday
and refused to inform him of the results despite the employee’s repeated requests to obtain the
information. This refusal was contemporaneous with the employee’s treatment for stress-related
conditions.
The Board finds that there is sufficient evidence of record to establish that the actions of
LTC D.K. from May 1 to 5, 2014 constitute error or abuse on the part of the employing
establishment. The employing establishment’s October 25, 2017 letter to OWCP expressly shows
that LTC D.K. did not follow the employing establishment’s own policy to not provide upsetting
information at the end of the workweek, particularly to an employee who had received treatment
for depression and a failed suicide attempt.31 It admitted that how LTC D.K. notified the employee
of pending disciplinary action “may be inconsistent with advice offered during training for
[employing establishment] supervisors” and referenced its own Suicide Prevention Program
Directive. Error or abuse is further demonstrated by the fact that LTC D.K. received a Letter of

30

See Thomas D. McEuen, supra note 23.

31

See M.C., Docket No. 14-1135 (issued June 7, 2016) (the Board found error or abuse on the part of the employing
establishment where a security officer testified that another security officer did not follow its own de-escalation policy
when he placed the claimant in a control hold and escorted her off the premises).

10

Admonition on June 1, 2015 for his treatment of the employee.32 The letter critiqued LTC D.K.
for exercising “questionable judgment and leadership with respect to [his] subordinates.” The
Board thus finds that appellant has submitted sufficient evidence to establish error or abuse by the
employing establishment when LTC D.K. notified the employee on May 1, 2014 that the
investigation was complete, refused to give the employee information about the results of the
investigation or any disciplinary action, and instructed the employee to wait until May 5, 2014 for
a meeting.
Appellant has also described several instances of alleged harassment on the part of SSO
A.P. towards the employee. She related that SSO A.P. violated the employee’s privacy by
disclosing to other coworkers that the employee obtained a sizable inheritance after his mother
died in 2011. Appellant has also described a situation when SSO A.P. told the employee: “I guess
your give a s*** factor just went out the window” when the employee returned to work after his
mother had died. The Board finds, however, that the evidence of record does not establish that
these specific incidents of verbal abuse or privacy violations are compensable factors of
employment. Appellant has provided no corroborating evidence or witness statements to support
her or the employee’s allegations regarding SSO A.P.’s statements or conduct. As noted above,
mere perceptions of harassment or discrimination are not compensable under FECA.33 A claimant
must establish a factual basis for his or her allegations that the harassment occurred.34 Because
appellant has not provided corroborating evidence to verify her allegations regarding SSO A.P.’s
actions towards the employee, she has not established a factual basis for her claim as to this
allegation.
The Board finds that appellant has not established a compensable employment factor under
FECA with respect to the alleged harassment against the employee by SSO A.P. However, the
Board also finds that the evidence of record is sufficient to establish that LTC D.K.’s actions
preceding the employee’s disappearance on May 5, 2017 constitute error or abuse and, therefore,
appellant has established a compensable employment factor under FECA. Additionally, the Board
finds that the evidence of record is sufficient to establish that the employee was overworked, which
constitutes a compensable employment factor under FECA.
By denying appellant’s claim, OWCP has not reviewed the medical opinion evidence
submitted on the issue of causal relationship. The Board will, therefore, set aside OWCP’s
February 26, 2018 decision and remand the case for review of the medical opinion evidence as it
relates to the accepted compensable factors of employment.35 After such further development as
deemed necessary, OWCP shall issue a de novo decision on the issue of entitlement to survivor
benefits.

32
See K.A., Docket No. 14-0017 (issued August 4, 2014) (the Board determined that a grievance settlement between
management and the union, which agreed that supervisors had acted wrongly against the claimant, was sufficient to
show error or abuse on the part of the employing establishment).
33

Supra note 20.

34

Supra note 21.

35

See E.M., Docket No. 16-1695 (issued June 27, 2017); Tina E. Francis, 56 ECAB 180 (2004).

11

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this opinion.
Issued: March 26, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SHEPPARD AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 07-1388
Issued: January 25, 2008

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 April 25, 2007 appellant timely appealed a March 8, 2007 merit decision of the Office
of Workers’ Compensation Programs, which denied modification of a wage-earning capacity
determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant established a basis for modification of the Office’s
November 17, 1997 wage-earning capacity determination.
FACTUAL HISTORY
This case has been before the Board on numerous prior occasions. Appellant, a 76-yearold former office automation clerk (secretary), has an accepted claim for a left knee injury she
sustained on December 15, 1995 when she stumbled down a flight of stairs. The Office accepted

her claim for left knee strain and left lateral meniscus tear.1 Appellant returned to work in a
light-duty capacity on January 21, 1997 and accepted a permanent, light-duty position as an
office automation clerk on May 30, 1997.
Effective August 22, 1997, appellant resigned from the employing establishment. On
August 29, 1997 she underwent a left knee arthroscopic procedure, which the Office authorized.
Appellant’s surgeon released her to return to sedentary work effective October 27, 1997.2 She
did not return to the employing establishment having resigned her position two months earlier.3
In a decision dated November 17, 1997, the Office determined that appellant’s actual
earnings as an office automation clerk beginning June 22, 1997, fairly and reasonably
represented her wage-earning capacity. Because the wages she earned as an office automation
clerk equaled or exceeded the adjusted wages of her date-of-injury position, the Office found that
there was no loss of wage-earning capacity. Therefore, appellant was not entitled to receive
further wage-loss compensation. However, she remained eligible for medical benefits associated
with her December 15, 1995 left knee injury.
The Board previously affirmed the Office’s finding that the office automation clerk
position appellant held until her August 22, 1997 resignation, fairly and reasonably represented
her wage-earning capacity.4 The Board also affirmed a July 25, 2003 decision denying
modification of the November 17, 1997 wage-earning capacity determination.5 The last time the
case was on appeal, the Board issued a November 29, 2006 order remanding the case with
instructions for the Office to issue an appropriate decision on appellant’s August 25, 2005
request for reconsideration.6
On August 25, 2005 appellant contended that she was disabled and did not get her job
back. She noted that her government retirement was only $18.13 per month. Appellant enclosed
copies of a January 21, 1997 request for personnel action (Form 52), an August 1, 2000 schedule
award, the Office’s November 17, 1997 loss of wage-earning capacity determination, and a
November 17, 1997 letter to the Office of Personnel Management advising that she had elected
Federal Employees’ Compensation Act (FECA) benefits in lieu of benefits provided by OPM.7
She also provided a copy of a March 27, 2000 motion to reopen the record with respect to a
claim before the Merit Systems Protection Board. Appellant also submitted a March 22, 2000
1

The claim was also accepted for head contusion.

2

The Office paid appropriate wage-loss compensation for the period August 29 through October 26, 1997.

3

The employing establishment reportedly was not in a position to rehire appellant during the fall of 1997.

4

Docket No. 99-1407 (issued July 3, 2000).

5

Docket No. 03-2127 (issued November 18, 2003).

6

Docket No. 06-0721. The Board’s decisions dated July 3, 2000, November 18, 2003 and November 29, 2006
are incorporated herein by reference.
7

The November 17, 1997 letter to OPM also indicated that appellant’s entitlement to FECA benefits was for a
finite period ending October 26, 1997.

2

employing establishment referral certificate, which listed her as one of several individuals
eligible for reinstatement as an office automation clerk. When the employing establishment
contacted her regarding the available position, she reportedly declined further consideration due
to health reasons. In a postscript to her August 25, 2005 letter, appellant noted that she was
“requesting claim (sic) for compensation.” The only medical evidence accompanying the
request was a December 2, 1997 left lower extremity impairment rating from Dr. Stephen D.
Ruyle, her attending orthopedic surgeon, who had advised the employing establishment in
October 1997 that appellant was able to perform sedentary work. The employing establishment
informed the Office of appellant’s medical release on October 24, 1997.
Appellant wrote to the Office again on August 31, 2005, explaining that she had
neglected to include certain medical evidence with her August 25, 2005 request for
reconsideration. She submitted a January 19, 2005 lumbar x-ray and a January 24, 2005
magnetic resonance imaging (MRI) scan of the lumbar spine, which showed multilevel disc
disease. Appellant also submitted an April 22, 2003 electromyography that revealed evidence of
peripheral neuropathy and polyradiculopathy. She resubmitted the April 7, 2003 report of
Dr. Clark W. Brazil and an April 25, 2003 report from Dr. Danny R. Bartel. According to
appellant, her back was causing all of the problems she experienced with her legs. She argued
that the Office’s focus should not be limited to the problems associated with her left knee.
On remand, the Office concluded that appellant had not met her burden of proof, and
therefore, denied modification by decision dated March 8, 2007.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.8 Compensation payments are based on the wage-earning capacity determination and the
determination remains in effect until properly modified.9 A wage-earning capacity determination
will not be modified unless there is a material change in the nature and extent of the injuryrelated condition, the employee has been retrained or otherwise vocationally rehabilitated or the
original determination was erroneous.10 The burden of proof is on the party seeking
modification of the wage-earning capacity determination.11
ANALYSIS
The Board finds that appellant has not met any of the requirements for modification of
the Office’s November 17, 1997 loss of wage-earning capacity determination. Appellant has not
submitted any evidence to establish that the original determination regarding her wage-earning
8

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

9

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

10

Tamra McCauley, 51 ECAB 375, 377 (2000).

11

Id.

3

capacity was erroneous. The nonmedical documentation appellant submitted in August 2005 is
not relevant to establish a change in the nature or extent of her injury-related condition. She has
also not established or alleged that she was retrained or otherwise vocationally rehabilitated.
As to the medical evidence that accompanied appellant’s August 2005 request, this too
fails to establish a basis for modification of the November 17, 1997 wage-earning capacity
determination. The medical reports do not demonstrate a material change in the nature and
extent of the injury-related condition. The April 2003 reports from Dr. Bartel and Dr. Brazil
were initially considered by the Office in the July 25, 2003 decision denying modification. As
previously noted, the Board affirmed the Office’s July 25, 2003 decision.12 This evidence has
been considered and found insufficient to warrant modification of the 1992 wage-earning
capacity.
With respect to the January 2005 lumbar x-ray and MRI scan, this evidence is also
insufficient. Appellant’s December 15, 1995 employment injury was not accepted for a lumbar
condition and these reports do not address the accepted conditions of left knee strain and
meniscus tear. Appellant’s April 22, 2003 electromyography report is similarly insufficient.
Moreover, this report does not address appellant’s ability to work as an office automaton clerk or
address the cause of appellant’s peripheral neuropathy and polyradiculopathy. Accordingly, the
medical evidence that accompanied appellant’s August 2005 request for reconsideration is
insufficient to establish a material change in the nature and extent of the accepted injury-related
conditions. The Office, therefore, properly denied modification of the November 17, 1997
wage-earning capacity determination.
CONCLUSION
Appellant has not established a basis for modifying the Office’s November 17, 1997
wage-earning capacity determination.

12

See supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Huntington, WV,
Employer
__________________________________________

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

Docket No. 08-1645
Issued: February 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2008 appellant filed a timely appeal from the March 28, 2008 merit decision
of the Office of Workers’ Compensation Programs granting him a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this appeal.
ISSUES
The issues are: (1) whether appellant has more than a five percent permanent impairment
of his left upper extremity and more than a three percent impairment of his right upper extremity;
and (2) whether the Office correctly determined the pay rate in issuing appellant’s schedule
award payment.1

1

On appeal, appellant contends that he is entitled to leave buyback for periods of time lost due to his accepted
condition. However, the Office has not made a final determination regarding appellant’s entitlement to leave
buyback. Therefore, the Board has no jurisdiction over this issue. 20 C.F.R. § 501.2(c). (The Board has
jurisdiction to consider and decide appeals from final decisions of the Office).

FACTUAL HISTORY
This is the second time this case has been before the Board. By decision dated
December 10, 2007, the Board set aside the Office’s January 8 and May 16, 2007 schedule
award decisions and remanded the case for further development of the medical evidence, proper
determination of the date of maximum medical improvement (MMI)2 and development of
evidence relevant to appellant’s pay rate under section 8101(4) of the Federal Employees’
Compensation Act.3 The facts and the circumstances of the case as set out in the Board’s prior
decision are incorporated herein by reference.
The Office accepted appellant’s October 4, 2004 occupational disease claim for bilateral
carpal tunnel syndrome and he subsequently underwent bilateral median nerve release surgeries.
Based upon the second opinion report of Dr. Robert W. Lowe, a Board-certified orthopedic
surgeon, the Office issued a decision dated January 8, 2007, granting appellant a schedule award
for an eight percent impairment to his upper extremities (five percent -- right; three percent -left). It determined that MMI occurred on May 26, 2006. The effective date of pay rate was
October 4, 2003, with a weekly pay rate of $887.78. On May 16, 2007 the Office denied
modification of the January 8, 2007 decision.
Appellant appealed the schedule award decision to the Board. In its December 10, 2007
decision, the Board found that the case was not in posture for a decision. The Board stated that
Dr. Lowe failed to explain how he arrived at his impairment rating based upon a correct
application of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.MA., Guides),4 noting that, although he referred to page 495, Dr. Lowe did not
specifically indicate that, or discuss why, appellant fell into category 2, rather than category 1, of
the standards for determining impairment for carpal tunnel syndrome and did not explain how his
clinical findings applied to his impairment rating.
On remand, the Office asked the employing establishment to provide evidence of
appellant’s actual earnings for the 12-month period prior to the date his disability began,
excluding overtime, as well as information regarding premium pay, such as night differential and
Sunday premium pay.
The Office referred appellant, together with a revised statement of accepted facts and the
entire medical record, to Dr. Lowe for clarification of his opinion as to the degree of appellant’s
permanent impairment and the date of MMI. In a report dated February 15, 2008, Dr. Lowe
reiterated his opinion that appellant had reached MMI as of May 26, 2006 and clarified his

2

The Board found that the Office improperly selected May 26, 2006 as the date of MMI, in that the date selected
was retroactive to the date of the examination on which the Office relied in fashioning the schedule award.
3

Docket No. 07-1867 (issued December 10, 2007).

4

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th
ed. 2001).

2

conclusion regarding the degree of impairment to appellant’s upper extremities, right versus left.5
He reported basically normal examination findings, noting that appellant had intact sensation in
both hands. Two-point discrimination was present in all fingers at five millimeter or less.
Tinel’s and Phalan’s signs were negative bilaterally. Both radial and ulnar arteries were open
and patent bilaterally. The vascular filling of the hand and mobility of the thumb were normal
bilaterally. There was no problem with either operative site for carpal tunnel release; i.e., there
was no neuron at the wound. The wounds were well healed. The motion of the
metatarsophalangeal (MP) and proximal interphalangeal (IP) joints of the right hand were
normal, although the right thumb showed some stiffness (MP and IP joints flexing 40 degrees).
The distal interphalangeal (DIP) joints of the right hand are stiff due to age, flexing 25 degrees at
index, 25 degrees long finger, but ring finger right and fifth finger DIP joints approaching more
normal range; 40 degrees ring and 60 degrees DIP joint. On the left hand, MP joint flexed
36 degrees, thumb flexed 36 degrees, IP joint of the thumb flexed 40 degrees. Left hand DIP
joints were stiff (second flexing 20 degrees, third 20 degrees, fourth 32 degrees and fifth
32 degrees).
Dr. Lowe reviewed the results of an August 25, 2005 nerve conduction study, which
showed severe compression of the left median nerve and moderate compression of the right
median nerve. Referring to page 495 of the fifth edition of the A.M.A., Guides, Dr. Lowe opined
that appellant had a five percent impairment of his left upper extremity and a three percent
impairment of his right upper extremity. He explained that he was applying category 2 on page
495 of the A.M.A., Guides because, on examination, appellant did not exhibit any nerve or
sensory deficits, as required under category 1. Noting that appellant had excellent clinical
results, he stated that his rating was based solely on electrical studies.
In a March 5, 2008 report, the district medical adviser agreed with Dr. Lowe’s
impairment rating. Noting that Dr. Lowe found no clinical evidence of median nerve deficits,
but that nerve conduction studies were abnormal bilaterally, he concluded that appellant was
entitled to a maximum of a five percent impairment rating for each upper extremity, under
scenario 2 on page 495 of the A.M.A., Guides. He concluded that a five percent left upper
extremity rating and a three percent right upper extremity rating properly reflected the
differences between the two extremities in terms of the relative impact of the residual carpal
tunnel syndrome in each hand. The medical adviser opined that appellant had reached MMI on
May 26, 2006.
The record contains a leave analysis for the period September 22, 2003 through
July 24, 2004. A March 26, 2008 memorandum to the file indicates that on October 4, 2003
appellant had a total pay rate of $1,082.67, based on his entitlement to premium pay (base pay
rate -- $887.78; night differential -- $161.99; holiday -- $4.09; other -- $28.81). A March 27,
2008 fiscal report reflects that appellant was paid the amount of $3,906.24, representing a pay
rate adjustment for a schedule award for the period May 26 to November 16, 2006.

5

Dr. Lowe stated that his September 22, 2006 report contained a typographical error reflecting that appellant’s
right hand was more severely impaired than the left. He stated that, in fact, appellant’s left hand was more severely
impaired than the right, as reflected by his impairment rating of five percent for the left hand and three percent for
the right.

3

By decision dated March 28, 2008, the Office granted appellant a schedule award for a
five percent impairment of the left upper extremity and a three percent impairment of the right
upper extremity. It did not address the issue of the date of MMI. The Office found that
appellant was entitled to additional compensation based on an adjusted pay rate, which included
premium pay for the 12-month period prior to the date disability began on October 4, 2003. It
stated that the date disability began was “procedurally correct and [was] the proper date to use to
establish the effective pay rate for compensation purposes.”
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act6 and its implementing regulations7 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 A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8
The fifth edition of the A.M.A., Guides, regarding impairment due to carpal tunnel
syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -(1). Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
(2). Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
(3). Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”9
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

A.M.A., Guides 495.

4

The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome is to be rated on motor and sensory deficits only.10
ANALYSIS -- ISSUE 1
The medical evidence of record establishes that appellant has no more than a five percent
impairment of his left upper extremity and a three percent impairment of his right upper
extremity.
Dr. Lowe’s examination of appellant did not reveal any motor or sensory deficits. He
reported basically normal findings, noting that appellant had intact sensation in both hands and
essentially normal range of motion. However, an August 25, 2005 nerve conduction study
showed severe compression of the left median nerve and moderate compression of the right
median nerve. Referring to page 495 of the fifth edition of the A.M.A., Guides, Dr. Lowe
explained that he was applying category 2 on page 495 because, on examination, appellant did
not exhibit any nerve or sensory deficits, as required under category 1. He found no basis under
the A.M.A., Guides on which to attribute any greater impairment.
The Office medical adviser reviewed Dr. Lowe’s evaluation and concluded that he
properly applied the A.M.A., Guides in determining the degree of appellant’s permanent
impairment. Noting that Dr. Lowe found no clinical evidence of median nerve deficits, but that
nerve conduction studies were abnormal bilaterally, he concluded that appellant was entitled to a
maximum of a five percent impairment rating for each upper extremity, under scenario 2 on page
495 of the A.M.A., Guides. He concluded that a five percent left upper extremity rating and a
three percent right upper extremity rating properly reflected the differences between the two
extremities in terms of the relative impact of the residual carpal tunnel syndrome in each hand.
The Board finds that Dr. Lowe’s February 15, 2008 report is thorough and well
rationalized. This report, reviewed and corroborated by the district medical adviser, establishes
that appellant has no more than a five percent permanent impairment of his left upper extremity
and a three percent impairment of the right upper extremity. Therefore, the Board will affirm the
Office’s finding on the degree of appellant’s permanent impairment.
The Board finds, however, that the case is not in posture for a decision as to the date of
MMI. In its December 10, 2007 decision, the Board found that the Office had improperly
selected May 26, 2006 as the date of MMI, in that the date of the examination on which the
Office relied in fashioning the schedule award was September 22, 2006. The case was remanded
to the Office for further development of the medical evidence and a determination of a date of
MMI. However, in its March 28, 2008 decision, it did not address the issue of the date of MMI
and did not modify the term of the original schedule award. As the Board noted in its
December 11, 2007 decision, a retroactive date for MMI carries with it certain disadvantages and
may result in payment of less compensation. Therefore, the Board has been reluctant to find a
date of MMI which is retroactive to the award and requires persuasive proof of MMI in the

10

Kimberly M. Held, 56 ECAB 670 (2005).

5

selection of a retroactive date.11 The determination ultimately rests with the medical evidence12
and is usually considered to be the date of the evaluation by the physician which is accepted as
definitive by the Office.13 In the instant case, the date of the examination upon which the
March 28, 2008 schedule award decision was made was February 15, 2008. The Office’s
original January 8, 2007 schedule award was based on Dr. Lowe’s September 22, 2006
examination. The case will be remanded for a proper determination of the date of MMI and a
recalculation of appellant’s benefits under the schedule award.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Act provides that compensation for a schedule award shall be based
on the employee’s monthly pay.14 For all claims under the Act, compensation is to be based on
the pay rate as determined under section 8101(4) which defines monthly pay as:
“The monthly pay at the time of injury or the monthly pay at the time disability
begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes
regular full-time employment with the United States, whichever is greater....”15
In applying section 8101(4), the statute requires the Office to determine monthly pay by
determining the date of the greater pay rate, based on the date of injury, date of disability or the
date of recurrent disability. The Board has held that rate of pay for schedule award purposes is
the highest rate which satisfies the terms of section 8101(4).16
Section 8114(d) of the Act provides that average annual earnings are determined: (1) if
the employee worked in the employment in which the employee was employed at the time of
injury during substantially the whole year immediately preceding the injury and the employment
was in a position for which an annual rate of pay -- (A) was fixed, the average annual earnings
are the rate of pay; or (B) was not fixed, the average annual earnings are the product obtained by
multiplying the daily wage for the particular employment or the average thereof, if the daily
wage has fluctuated, by 300 if the employee was employed on the basis of a 6-day workweek,
280 if employed on the basis of a 5 1/2-day week and 260 if employed on the basis of a 5-day
week.17

11

J.C., 58 ECAB ___ (Docket No. 06-1018, issued January 10, 2007).

12

L.H., 58 ECAB ___ (Docket No. 06-1691, issued June 18, 2007).

13

Mark Holloway, 55 ECAB 321, 325 (2004).

14

See supra note 6.

15

5 U.S.C. § 8101(4).

16

See Robert A. Flint, 57 ECAB 369 (2006).

17

5 U.S.C. § 8114(d).

6

ANALYSIS -- ISSUE 2
In its December 11, 2007 decision, the Board found that the Office improperly
determined appellant’s pay rate based upon his monthly pay on the date of disability, without
evaluation of whether date-of-injury monthly pay would be greater and remanded the case for a
proper comparison. The Board finds that the Office did not properly determine appellant’s pay
rate for computation of his schedule award.
On remand, the Office asked the employing establishment to provide evidence of
appellant’s actual earnings for the 12-month period prior to the date his disability began,
excluding overtime, as well as information regarding premium pay, such as night differential and
Sunday premium pay. However, there is no evidence of appellant’s actual earnings for the
12-month period prior to his date of injury, which, in this case, would be the date of the medical
evaluation, which substantiates the degree of permanent impairment, namely
February 15, 2008.18 In its March 28, 2008 decision, the Office found that appellant was entitled
to additional compensation based on an adjusted pay rate, which included premium pay for the
12-month period prior to the date disability began on October 4, 2003, summarily stating that the
date disability began was “procedurally correct and [was] the proper date to use to establish the
effective pay rate for compensation purposes.” However, the Office gave no explanation as to
how it determined that the date disability began was procedurally correct. Moreover, there is no
evidence of record from which the Board can determine whether appellant’s pay rate on the date
disability began was greater than his pay rate on the date of injury.
The Office properly included appellant’s premium pay in calculating his pay rate.
However, as the record does not contain pay rate information as to the date of injury, the Board
is unable to determine whether appellant received the appropriate pay rate for schedule award
purposes. On remand, the Office should request the appropriate pay rate information from the
employing establishment. Thereafter, it should determine the proper pay rate for schedule award
purposes, by comparing the pay rates on the date of injury and the date of disability and select
the greater of the two.
CONCLUSION
The Board finds that appellant has no more than a five percent permanent impairment of
his left upper extremity and a three percent impairment of his right upper extremity. The Board
also finds that the case is not in posture for a decision as to the date of MMI or for a
determination as to appellant’s pay rate for schedule award purposes.

18

In its prior decision, the Board noted that in schedule award claims where an injury is sustained over a period of
time, as in this case, to determine the date of injury, the Office must ascertain the date of last exposure to
employment factors, as well as the date of the medical evaluation, which substantiates the degree of permanent
impairment. Id.; Leonard E. Redway, 28 ECAB 242 (1977). Where exposure to work factors continues, as in this
case, the date of injury is the date of the relevant medical examination, i.e., the date of the medical examination upon
which the extent of permanent impairment has been determined. Id.

7

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed as to the percentage of impairment of appellant’s
right upper extremities. However, the case is set aside and remanded for a proper determination
of the date of MMI and a recalculation of appellant’s benefits under the schedule award. It is
further ordered that the case is set aside as to the rate of pay upon which the schedule award
should be based and is remanded for action consistent with the terms of this decision.
Issued: February 6, 2009
Washington, DC

David S. Gerson, Judge
Employee’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hampton, GA, Employer
__________________________________________

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

Docket No. 20-1245
Issued: September 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 7, 2020 appellant filed a timely appeal from an April 28, 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 28, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion in denying authorization of an electric
scooter and an electric lift chair.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On September 27, 1974 appellant, then a 39-year-old air traffic specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained high blood pressure and mixed
neurosis causally related to stress at work. He first became aware of his condition and its
relationship to his work on September 16, 1974. Appellant stopped work on September 16, 1974
and has not returned. OWCP accepted the claim for depressive reaction and hypertension, which
was subsequently expanded to include hypertensive retinopathy, anxiety state, post-traumatic
stress disorder (PTSD), coronary atherosclerosis, atrial fibrillation, impotence, left mild ventricular
hypertrophy, cardiomegaly, congestive heart failure, atrial fibrillation, and other specified
psychogenic malfunction arising from mental factors. It paid appropriate wage-loss compensation
and medical benefits. 4
In a report dated November 1, 2019, Dr. Adam Parker, an osteopath specializing in family
medicine, noted that he was treating appellant for his hypertension and requested that OWCP
accept congestive heart failure as work related. He noted that appellant had shortness of breath
lying on his back, and that he needed to sleep upright in a chair with his legs propped up on a foot
stool. Dr. Parker recommended that OWCP provide appellant an electric lift chair and light weight
portable scooter, and he recommended appellant’s placement in an assisted living facility. He
reported that appellant had fallen attempting to get up from a chair due to his weakened condition.
Dr. Parker also explained that appellant struggled using a walker and was short of breath walking
from his waiting room into an examining room. For these reasons, he recommended an electric
lift chair that would assist appellant in rising from the chair and would be suitable for sleeping.
Dr. Parker also recommended an electric scooter that appellant should use if he had to walk more
than 50 feet.

3

Docket No. 14-1314 (issued September 25, 2014); Docket No. 12-1825 (issued March 14, 2013); Docket No. 101727 (issued March 7, 2011); Order Remanding Case, Docket No. 09-966, (issued November 23, 2009); Docket No.
04-379 (issued February 11, 2005); Docket No. 02-506 (issued July 7, 2003).
4

On July 30, 1999 OWCP issued a loss of wage-earning capacity (LWEC) decision reducing appellant’s wage-loss
compensation based on his capacity to earn wages in the constructed position of studio cameraman. In a preliminary
notice of overpayment of even date, it found that he forfeited compensation for the period August 7, 1987 through
November 18, 1989 and December 22, 1989 through October 23, 1996 as he failed to report his work activity as a
photographer resulting in an overpayment of $427,540.26 for these periods. By decision dated October 24, 2001,
OWCP’s hearing representative affirmed the July 30, 1999 LWEC determination and finalized the July 30, 2009
overpayment determination.

2

In a February 24, 2020 letter, appellant requested that OWCP authorize the purchase of an
electric lift chair as recommended by Dr. Parker. He attached estimates for two lift chairs and
noted his preference.
Appellant, in a March 26, 2020 letter, again requested OWCP authorize purchase of a lift
chair noting that it has become more difficult for him to rise from a sitting position.
In a report dated April 4, 2020, Dr. Nathan Hammel, an orthopedic specialist serving as an
OWCP district medical adviser (DMA), noted that the proposed electric scooter and electric lift
chair were intended to treat appellant’s deconditioning which was due to multiple factors including
contribution from aging and the accepted conditions. However, he opined that the devices were
not medically necessary as appellant was moving into an assisted living facility. Dr. Hammel
noted the level of care appellant would receive may preclude the need for these devices as he
would have assistance or access to equipment which filled the same purpose. The DMA
recommended that appellant’s needs be reevaluated following his transition to an assisted living
facility.
By decision dated April 28, 2020, OWCP denied authorization for an electric scooter and
electric lift chair, finding that the medical evidence of record failed to establish that the equipment
was medically necessary to address the effects of a work-related injury.
LEGAL PRECEDENT
Section 8103(a) of FECA5 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation. 6 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under section
8103, with the only limitation on OWCP’s authority is that of reasonableness. 7
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates that
the treatment is necessary and reasonable. 8 While OWCP is obligated to pay for treatment of
employment-related conditions, the employee has the burden of proof to establish that the
expenditure is incurred for treatment of the effects of an employment-related injury or condition.

5

5 U.S.C. § 8103.

6

Id. See O.M., Docket No. 20-0640 (issued April 19, 2021); S.A., Docket No. 18-1024 (issued March 12, 2020).

7

M.T., Docket 20-0321 (issued April 26, 2021); D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams,
48 ECAB 504 (1997).
8
See D.K., Docket No. 20-0002 (issued August 25, 2020); R.M., Docket No. 19-1319 (issued December 10, 2019);
Debra S. King, 44 ECAB 203, 209 (1992).

3

FECA provides that, if there is disagreement between an OWCP-designated physician and
an employee’s physician, OWCP shall appoint a third physician who shall make an examination. 9
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.10
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted the claim for depressive reaction, hypertension, hypertensive retinopathy,
anxiety state, PTSD, coronary atherosclerosis, atrial fibrillation, impotence, left mild ventricular
hypertrophy, cardiomegaly, congestive heart failure, atrial fibrillation, and other specified
psychogenic malfunction arising from mental factors.
Appellant’s treating physician, Dr. Parker sought authorization for an electric chair lift and
light weight portable electric scooter for appellant. He also recommended appellant’s placement
in an assisted living facility. Dr. Parker explained that appellant had fallen attempting to get up
from his chair due to his weakened condition, that he struggled using a walker, and that he was
short of breath walking short distances.
In contrast, Dr. Hammel, an OWCP DMA, opined that the devices were not medically
necessary as appellant was being moved into an assisted living facility. He noted the level of care
appellant would receive may preclude the need for these devices and recommended his needs be
reevaluated following his transition to an assisted living facility.
As Dr. Hammel, an OWCP DMA, and Dr. Parker, appellant’s attending physician,
disagreed as to whether appellant’s requested electric lift chair and electric scooter were medically
warranted with appellant’s move to an assisted living facility, the Board finds that there is a conflict
in the medical opinion evidence. The case must therefore be remanded for referral to an impartial
medical examiner pursuant to 5 U.S.C. § 8123(a). Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for a decision.

9

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; L.C., Docket No. 20-866 (issued February 26, 2021); B.I., Docket
No. 18-0988 (issued March 13, 2020); Shirley L. Steib, 46 ECAB 309 (1994).
10

L.C., id.; Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: September 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0098
Issued: May 26, 2016

Case Submitted on the Record

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

JURISDICTION
On October 19, 2015 appellant, through counsel, filed a timely appeal of a May 22, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant established that her modified job duties caused an
aggravation of her accepted cervical and right upper extremity conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By order issued July 10, 2014,2 the
Board remanded the case for OWCP to combine claim File No. xxxxxx093 with the current
claim. The circumstances surrounding the Board’s prior order are incorporated herein by
reference with the relevant evidence set for the below.
On December 18, 2006 appellant, then a 50-year-old licensed practical nurse, filed an
occupational disease claim (Form CA-2) alleging that on December 14, 2006 she first realized
that her neck and back pain were due to her employment duties.3 She filed a second Form CA-2
alleging that on December 14, 2006 she first realized that her bilateral carpal tunnel syndrome
and right shoulder pinched nerve were caused or aggravated by her employment duties.4 OWCP
accepted the claims for right neck sprain, right shoulder, upper arm, and rotator cuff sprain, right
shoulder calcifying tendinitis, right shoulder impingement syndrome, and right median
neuropathy. Subsequently, it also accepted a recurrence of disability beginning May 18, 2010.
On March 9, 2011 appellant accepted an accommodated licensed practical nurse position.
By decision dated August 1, 2011, OWCP issued a loss of wage-earning capacity (LWEC)
decision in which it found that her actual earnings in her accommodated licensed practical nurse
position met or exceeded the current wages of the job she held when injured.
On October 24, 2011 appellant filed an occupational disease claim alleging that on
October 6, 2011 she first realized that her cervical sprain with right-sided radiculopathy, right
medial neuropathy, radial tunnel, and right rotator cuff tear had been aggravated by her duties in
the accommodated position she had performed since March 9, 2011 (OWCP File No.
xxxxxx523). She subsequently explained that from March 9 through April 22, 2011 she was
required to type and drag a computer from room to room. From April 22 through June 8, 2011
appellant was required to perform injections and computer input, and from June 8 through
October 6, 2011 she was required to write in an awkward position either sitting next to a
patient’s bed, or utilizing a small table next to the bed.
In a January 19, 2012 statement, appellant alleged that the employing establishment
failed to accommodate her restrictions and reassigned her on June 8, 2011 from the modified job
it provided under OWCP File No. xxxxxx093. After she was moved from her modified job to
one that required observing patients who were threats to themselves and/or others or at risk of
falling started experiencing tingling, stiffness, and burning in her neck, and bilateral upper back,
which radiated down into her hand and arm. As of September 28, 2011, appellant was also
required to sort mail where she experienced the same symptoms. Next, she alleged that the
employing establishment failed to provide her with ergonomic furniture needed to perform her

2

Docket No. 14-84 (issued July 10, 2014).

3

This was assigned claim File No. xxxxxxx093.

4

This was assigned claim File No. xxxxxx067. On April 15, 2010 OWCP combined claim File Nos. xxxxxx067
and xxxxxx093, with claim File No. xxxxxx093 as the master claim file.

2

job. Lastly, appellant contended that the repetitive motions involving her neck exacerbated her
cervical radiculopathy.
The record under claim File No. xxxxxx093 contains a functional capacity evaluation
report (FCE) dated October 28, 2011 detailing appellant’s work capabilities. The report noted
that appellant became symptomatic on her right side when performing repetitive and heavy
lifting tasks. Restrictions included occasional light fine manipulation and firm grasping, no
repetitive work, avoid frequent firm grasping, fine manipulation, and repetitive tasks, and under
10 pounds of lifting or carrying. Under physical demands, the report found that appellant was
capable of: up to six hours of sitting, standing, and walking; up to one hour of sitting, standing,
and walking at one time; occasional static position, rotational movements, flexing movements,
bending/stooping, squatting, crawling, climbing stairs, reaching above left shoulder level,
kneeling, and balance; no repetitive fine manipulation; occasional fine manipulation; no climbing
a ladder or reaching above the right shoulder; frequent extension movements. Lifting and
carrying restrictions of up to 10 to 24 pounds were also provided for the left and right hands.
The report concluded that appellant was capable of performing sedentary work requiring up to 10
pounds of carrying and/or lifting items and occasional walking/standing.
In March and April 2013, OWCP received reports covering the period October 6, 2011 to
April 26, 2013 from Dr. Scott M. Fried, a treating Board-certified osteopathic orthopedic
surgeon, diagnosed neuropathy, right brachial plexopathy/cervical radiculopathy, cervical
strain/sprain, long thoracic neuritis, and right shoulder capsulitis, partial rotator cuff tear, and
acromioclavicular joint synovitis.
In an October 6, 2011 report, Dr. Fried noted that appellant reported increased symptoms
and that she was having difficulty with her current job duties which required prolonged neck and
head flexion. He was concerned that the pushing and pulling of a cart as this type of activity
aggravated her injuries. Dr. Fried reported that appellant could perform brief and limited
computer work in an ergonomic environment. He also opined that she should avoid repetitive
activities and prolonged positioning. Dr. Fried recommended functional capacity testing to
determine appellant’s current limitations and capabilities.
On December 22, 2011 Dr. Fried noted that appellant was not working as the result of her
employment injuries. He reported that her last limited-duty job was a mobile computer position.
Dr. Fried expressed concerns with appellant using a computer in relation to it requiring
prolonged head flexion and positioning and using her arms pushing and pulling a cart. He
indicated that she remained disabled from working until an appropriate modified job was found
within her capabilities and restrictions.
In an April 22, 2013 report, Dr. Fried provided physical examination findings and
detailed appellant’s injury and treatment history from the October 28, 2009, the date he began
treating her. He reported that she returned to work on March 9, 2011 and on June 20, 2011 she
noted an aggravation of her symptoms. A physical examination was markedly positive and any
increased activities caused a flare up in appellant’s symptoms. On October 6, 2011 appellant
reported a significant flare up of her symptoms involving her arm, right neck, and plexus. At the
time of the flare up she was in a new modified job, which required frequent writing, prolonged
sitting, and pulling a cart with a laptop, which Dr. Fried opined aggravated her symptoms.

3

According to Dr. Fried, appellant’s condition continued to be markedly positive and she
continued to have symptom flare ups with any increased activity. He reviewed her statement,
noted that she requested voice activated software as an accommodation on several times, and
noted the different jobs and duties assigned to her. Dr. Fried reported that on September 20,
2011 appellant’s duties included filing paid invoices and processing mail, which involved
bending and “prolonged posture of the head and neck.” He also opined that her repetitive
computer activity aggravated her condition. Dr. Fried reported that appellant had accepted
employment injuries of right median neuropathy, carpal tunnel, cervical radiculopathy, and right
rotator cuff strain, and sprain, which were aggravated by her computer work, the lack of voiceactivated software to limit writing and keying activities, and nonergonomic seating. He also
opined that the work duties she was performing in her modified position were outside of the
restrictions noted in an October 2011 FCE.
In an April 25, 2013 addendum, Dr. Fried opined that as of October 6, 2011 appellant
was totally disabled from work due to the work injuries outlined in his prior report. He further
noted that the October 2011 FCE testing supported that her disability was due to her work
injuries and she was unable to perform her modified job duties.
By decision dated October 24, 2014, OWCP combined OWCP files as instructed by the
Board and found that the evidence from the combined files failed to establish appellant’s claim
that she sustained a new occupational injury. It found that the medical evidence of record failed
to explain how her modified employment duties aggravated the conditions accepted under prior
claims.
In an October 30, 2014 letter appellant’s counsel requested an oral hearing before an
OWCP hearing representative, which was held on March 27, 2015.
By decision dated May 22, 2015, the hearing representative affirmed the denial of
appellant’s claim. She found that none of the reports from Dr. Fried were sufficient to establish
that appellant’s diagnosed conditions had been aggravated by the job duties appellant performed
during the period March 9 to October 6, 2011.
LEGAL PRECEDENT
An LWEC decision is a determination that a specific amount of earnings, either actual
earnings or earnings from a selected position, represents a claimant’s ability to earn wages.5
Compensation for LWEC is based upon loss of the capacity to earn and not on actual wages
lost.6 Compensation payments are based on the wage-earning capacity determination, which
remains undisturbed until properly modified.7

5

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
6

K.R., id.; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975).

7

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

4

Modification of a standing LWEC determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated, or the original determination was erroneous.8
OWCP’s procedures provide that, if a formal LWEC decision has been issued, the rating should
be left in place unless the claimant requests resumption of compensation for total wage loss. In
this instance, the claims examiner will need to evaluate the request according to the customary
criteria for modifying a formal LWEC.9 The burden of proof is on the party attempting to show
a modification of LWEC determination.10
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted that appellant sustained neck sprain, right rotator cuff sprain, right
median neuropathy, right rotator cuff tendinopathy, and right shoulder impingement syndrome
and that she had been assigned a modified accommodated licensed practical nurse job under
File No. xxxxxx093. On August 1, 2011 it found that her earnings in her accommodated
licensed practical nurse position met or exceeded the current wages of the positon she held when
injured and fairly and reasonably represented her wage-earning capacity.
Appellant alleged on October 24, 2011 that her accepted cervical sprain with right-sided
radiculopathy, right medial neuropathy, radial tunnel, and right rotator cuff tear were aggravated
by the duties performed in the accommodated position. OWCP developed the evidence
submitted in support of the occupational disease claim, but denied the claim finding that the
record was devoid of any rationalized medical evidence explaining how her diagnosed conditions
had been caused or aggravated by duties of her modified position.
The Board has held that, when a wage-earning capacity determination has been issued
and appellant submits evidence with respect to disability for work, OWCP must evaluate the
evidence to determine if modification of wage-earning capacity is warranted, even if she has not
specifically requested modification of LWEC.11 Appellant is in fact requesting modification of
the wage-earning capacity determination, in that she is alleging that the duties of the federal
position, which purportedly represented her wage-earning capacity, aggravated her accepted
conditions. The decisions denying her October 24, 2011 occupational disease claim focused on
whether she had established that new duties caused aggravation of the accepted conditions. The
issue to be addressed, however, was whether appellant had established a worsening of her

8

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.4(a) (June 2013).
10

Selden H. Swartz, 55 ECAB 272, 278 (2004).

11

See generally, M.S., Docket No. 15-685 (issued June 12, 2015).

5

accepted conditions, such that she could no longer perform the duties of the LWEC position.12
OWCP’s procedures note that to establish modification of a wage-earning capacity determination
the medical evidence must demonstrate a worsening of the accepted condition without
intervening injury.13 The Board has previously found that, although a claimant requested total
disability compensation, appellant had not established entitlement to modification of an LWEC
determination if her disability increased from partial to total disability due to factors she
encountered in her private employment, and with her family, as these factors constituted
independent intervening cause.14
On remand, OWCP shall determine whether appellant has established total disability due
to aggravation of her accepted conditions such that her LWEC determination should be modified.
After such further development of the case record as OWCP deems necessary, a de novo decision
shall be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision

12

In J.B., Docket No. 15-0726 (issued October 20, 2015) the Board reviewed whether an LWEC determination
should be modified. The Board framed the issue as whether appellant had submitted medical evidence sufficient to
establish that he was unable to perform the duties of his modified clerk position.
13

Supra note 9 at Chapter 2.1501(3) (June 2013).

14

See C.H., Docket No. 13-2179 (issued April 23, 2014); see also S.M., 58 ECAB 166 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2015 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: May 26, 2016
Washington, DC

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

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

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

7