United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, LASSEN
VOLCANIC NATIONAL PARK,
Mineral, CA, Employer
__________________________________________

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

Docket No. 06-1977
Issued: January 8, 2007

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 August 23, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 19, 2006 nonmerit decision denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed from the most recent merit decision dated
February 15, 2005 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for review of
the merits under 5 U.S.C. § 8128 on the grounds that his request was not timely filed and did not
establish clear evidence of error.

FACTUAL HISTORY
On April 10, 1999 appellant, then a 52-year-old park ranger, sustained a left shoulder
derangement, a left shoulder acromioclavicular joint separation and subacrimonial impingement
syndrome in the performance of his duty. The Office accepted the claim. Appellant stopped
work on August 30, 2003 after surgery on his shoulder and has not returned to duty. The surgery
was performed by Dr. Thomas E. Daniel, an orthopedic surgeon. Appellant accepted mandatory
retirement when he turned 57. On December 5, 2003 he was cleared to return to work with
restrictions on overhead lifting and lifting, pulling, pushing or carrying more than 20 pounds.
By letter dated May 25, 2004, the employing establishment offered appellant a permanent
position as an office automation assistant in Mineral, California. The work schedule was 8:00
am to 4:30 p.m. Monday through Friday, with Saturday and Sunday off. Appellant would be
assigned to prepare a variety of correspondence and documents, serve as a personal receptionist,
do payroll preparation and recordkeeping. The position did not require overhead lifting or
lifting, pulling, pushing or carrying anything greater than 20 pounds. The job was described as
primarily sedentary.
By letter dated August 23, 2004, the Office advised appellant that the May 25, 2004 job
offer was suitable work and that he had 30 days in which to accept the job offer or provide good
cause for refusal. It noted that, under section 8106(c)(2) of the Federal Employees’
Compensation Act,1 a partially disabled employee who refuses an offer of work after suitable
work is offered was not entitled to continuing compensation. The Office specified that, if
appellant refused the offered position or failed to report for duty when scheduled without
reasonable cause, his compensation benefits would be terminated.
By memorandum dated September 19, 2004, appellant refused the August 23, 2004 job
offer. He noted that the position offered was in Mineral, California, whereas his former duty
station was in Manzanita Lake, California. Appellant stated that the commute from Mineral to
Manzanita Lake, was 42 miles. The travel between the two areas was over a park road which is
closed to the public much of the time from November to May. An alternate travel route was
described as a 60-mile commute. Commute times on the park road were stated to be 1½ hours
and up to 2 hours on the longer route. Appellant estimated that he would have to pay an
additional $200.00 for gasoline plus additional maintenance for added wear and tear to his car.
He also stated that he would not be able to attend his medical appointments and physical therapy
sessions due to the estimated 90-mile distance between Mineral Lake and Redding, where his
doctor and therapist were located.
The employing establishment controverted appellant’s contentions by letter dated
September 22, 2004. It stated that the distance from appellant’s residence to his duty station was
14.5 miles with a commute time of approximately 25 minutes. The distance from his residence
to the new duty station was 25.3 miles with a commuting time of 53 minutes. The distance to the
new station was 10.8 miles and 28 minutes longer than the previous commute. Neither commute
was through park lands. In support of its assertions, the employing establishment provided
internet maps detailing roadways, distances and minutes of travel.
1

5 U.S.C. § 8106(c)(2).

2

By letter dated January 6, 2005, the Office advised appellant that his reasons for refusing
to accept the offered position were invalid. It noted that it would not consider any further
reasons to justify his refusal of the job offer. The Office reminded appellant of the penalty
provision under section 8106(c)(2) of the Act and stated that, if he refused the offer or failed to
report for work within 15 days, his benefits would be terminated. He did not respond.
By decision dated February 11, 2005, the Office terminated appellant’s wage-loss
compensation benefits effective March 19, 2005 on the grounds that he refused an offer of
suitable work under section 8106(c)(2) of the Act. It noted that the offered position was suitable
to appellant’s medical limitations and found that his reply, when rejecting the May 25, 2004 job
offer, was insufficient. On February 15, 2005 the Office reissued the February11, 2005 decision.
By letter dated February 12, 2006, appellant requested reconsideration. The envelope
was postmarked February 14, 2006.
He asserted that the employing establishment
misrepresented the commuting issues. Appellant asserted that the proposed route involved using
a 21 mile dirt and gravel road that was impassible in the winter and spring causing it to be closed
for 5 to 6 months in the winter. Appellant noted that the route used by employing establishment
personnel to travel between Manzanita Lake and Mineral was 69 miles in length and required 90
to 120 minutes to drive.
By nonmerit decision dated May 19, 2006, the Office denied reconsideration of its
February 11, 2005 decision, finding the request to be untimely. It noted that appellant’s letter
requesting consideration was postmarked February 14, 2006. Because more than a year had
passed since the February 11, 2005 decision and the postmark date, appellant’s reconsideration
request was not timely. The Office found that he failed to provide evidence to support his
arguments and thus, failed to show clear evidence of error.
On appeal to the Board, appellant noted that his copy of the Office’s merit decision was
dated February 15, 2005.2
LEGAL PRECEDENT
The Office has imposed limitations on the exercise of its discretionary authority under
section 8128(a) of the Federal Employees’ Compensation Act.3 It will not review a decision on
the merits of a claim unless the application for review is filed within one year of the date of that
decision.4 When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.5 Its procedures state that the Office will reopen a claimant’s case for merit review,
2

Additional documents were received by the Office after the decision on May 19, 2006. However, the Board
cannot consider evidence that was not before the Office at the time of the final decision. See Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, n.5 (1952); 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

5

Veletta C. Coleman, 48 ECAB 367 (1997).

3

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
application for review shows clear evidence of error on the part of the Office.6
ANALYSIS
The Office determined that appellant failed to file a timely application for review. Its
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the Office decision for which review is sought.7 A right to reconsideration within
one year also accompanies any subsequent merit decision on the issues.8 In this case, the Office
issued two decisions regarding the termination of benefits under section 8106. The record
reflects a decision dated February 11, 2005 and a reissuance of the decision dated
February 15, 2005. The Office used the February 11, 2005 date in its calculations. Appellant
based his request for reconsideration on the February 15, 2005 decision. The Board finds that
the February 15, 2005 decision should be used as it is a later decision, which superseded the
February 11, 2005 decision. Therefore, appellant’s request was timely filed as it was postmarked
within one year of February 15, 2005. The Office improperly denied his reconsideration request
by applying the legal standard reserved for cases where reconsideration is requested after more
than one year. It erroneously reviewed the evidence submitted in support of appellant’s
reconsideration request under the clear evidence of error standard. The Board will remand the
case to the Office for review of this evidence under the proper standard of review for a timely
reconsideration request.
CONCLUSION
The Board finds that appellant’s February 12, 2006 letter, which was postmarked on
February 14, 2006 constituted a request for reconsideration which was timely as it was filed
within one year of the Office’s February 15, 2005 decision. It will remand the case for review of
the evidence under the proper standard of review for a timely reconsideration request.

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: [The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.
20 C.F.R. § 10.607(b).
7

20 C.F.R. § 10.607(a).

8

Robert F. Stone, 57 ECAB ___ (Docket No. 04-1451, issued December 22, 2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2006 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: January 8, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 20-0004
Issued: May 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 1, 2019 appellant filed a timely appeal from an August 30, 20191 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.3

1
The Board notes that appellant also sought an appeal from OWCP’s August 12, 2019 preliminary overpayment
determination. However, the Board’s jurisdiction is limited to the review of final adverse decisions of OWCP. See
20 C.F.R. §§ 501.2(c) and 501.3(a).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,879.29 for the period April 28 through May 25,
2019 because she received FECA benefits concurrently with Office of Personnel Management
(OPM) retirement benefits; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On June 26, 2015 appellant, then a 40-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that her preexisting conditions of asthma and eczema were
aggravated by factors of her federal employment, including sun and heat exposure. She related
that she first became aware of her conditions on June 5, 2015 and first realized their relationship
to factors of her federal employment on June 20, 2015. OWCP accepted appellant’s claim for
temporary aggravation of uncomplicated moderate persistent asthma and temporary aggravation
of intrinsic allergic asthma. It paid appellant wage-loss compensation on the supplemental rolls
commencing July 2, 2015. She returned to full-time modified-duty work on November 25, 2015
with restrictions.
OWCP placed appellant on the periodic rolls commencing November 11, 2018 because the
employing establishment was unable to accommodate her work restrictions.
On March 27, 2019 OWCP sent appellant an election of benefits form (Form CA-1105).
It explained that she could not receive FECA benefits while also receiving OPM benefits under
the Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS).
On April 30, 2019 OWCP received an April 24, 2019 letter from OPM to appellant which
indicated that it found her to be disabled for her position due to her asthma, and that her application
for disability retirement under FERS had been approved. It listed various steps appellant needed
to take before she could receive annuity payments.
On May 16, 2019 OWCP received appellant’s election of benefits form (Form CA-1105)
dated May 17, 2019. Appellant elected to receive OPM benefits in preference to benefits to which
she may be entitled under FECA, effective April 25, 2019, which she indicated was the official
date of her retirement. A May 17, 2019 memorandum of telephone call (Form CA-110) indicated
that OWCP left a voicemail informing appellant that the effective date she chose for her OPM
benefits was prior to the end of her FECA compensation payments from the periodic rolls, which
would create an overpayment. It stated that if appellant still used that date for her election of
benefits, it would declare an overpayment; however, if she would prefer a different date she should
send OWCP a statement in writing.
OWCP received a separate election of benefits form (Form CA-1105) from appellant dated
May 18, 2019. In it, appellant elected to receive OPM benefits, effective April 27, 2019. A
May 21, 2019 Form CA-110 indicated that OWCP informed her that the effective date she chose
for her OPM benefits would still create an overpayment. Appellant related that she would choose
a new effective date for her OPM benefits.

2

OWCP received another election of benefits form (Form CA-1105) from appellant dated
May 21, 2019. Appellant elected to receive OPM benefits effective April 28, 2019.
An OWCP compensation termination fiscal worksheet dated May 22, 2019 noted that the
effective date of the periodic rolls termination was April 28, 2019 due to appellant’s selection of
April 28, 2019 as the effective date for the receipt of her OPM benefits. It also noted that an
overpayment in the amount of $2,879.29 had been created as she continued to be paid FECA
compensation for 28 additional days after her effective election date for the period April 28 to
May 25, 2019.
In a May 22, 2019 letter to OPM, OWCP indicated that appellant elected to receive OPM
benefits effective April 28, 2019 in lieu of compensation benefits under FECA, and it requested
that OPM commence annuity payments effective retroactively to that date. It attached appellant’s
May 21, 2019 election of benefits form (Form CA-1105).
A May 22, 2019 Form CA-110 indicated that OWCP informed appellant that an
overpayment was created because it was too late to stop the most recent compensation payment
on the periodic rolls.
On June 10, 2019 OWCP received another election of benefits form (Form CA-1105) from
appellant dated “June 11, 2018.” Appellant elected to receive OPM benefits effective
“July 21, 2018.”
A July 24, 2019 letter from the employing establishment indicated that appellant retired
and elected OPM benefits effective April 28, 2019. It noted that a compensation payment “in the
amount of $2,789.29” was issued to her for the period April 28 through May 25, 2019, and it
requested that OWCP review the case for a possible overpayment.
On August 12, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $2,879.29 for the period April 28 through
May 25, 2019. It explained that the overpayment was the result of her receiving FECA
compensation benefits through May 25, 2019 after having elected receipt of OPM benefits,
effective April 28, 2019. OWCP determined that appellant was at fault in the creation of the
overpayment because she accepted a payment that she knew or should have known to be incorrect.
It provided a calculation of the overpayment and requested that she complete an overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation. OWCP
advised that failure to submit the requested information within 30 days would result in the denial
of waiver of the overpayment. Additionally, it notified appellant that within 30 days of the date
of the letter she could request a final decision based on the written evidence or a prerecoupment
hearing.
On August 28, 2019 appellant requested a final decision based on the written evidence, and
she submitted additional evidence. She indicated that she disagreed with OWCP’s August 12,
2019 preliminary determination because she disagreed that the overpayment occurred, disagreed
with the amount of the overpayment, and believed that the overpayment occurred through no fault
of her own. Appellant requested a waiver of the overpayment. She explained that she did not
receive FECA benefits concurrently with OPM retirement benefits.

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OWCP received another election of benefits form (Form CA-1105) from appellant dated
May 22, 2019. Appellant elected to receive OPM benefits in preference benefits to which she may
be entitled under FECA, effective May 25, 2019.
An August 28, 2019 overpayment recovery questionnaire (Form OWCP-20) completed by
appellant indicated that her monthly income was $1,696.00, which consisted entirely of OPM
retirement benefits. Appellant supported her husband and 24-year-old son, and she paid $1,625.00
in monthly expenses, which included $500.00 for food, $200.00 for clothing, $400.00 for utilities,
$25.00 to banking institution, $200.00 for telephone service, and $300.00 for other expenses. She
indicated that she had $1,000.00 of value in funds and other personal property. Appellant
explained that her retirement benefit payments began on July 1, 2019.
Appellant’s April 1, May 1, and June 1, 2019 OPM retirement benefits annuity statements
printed on August 28, 2019 all indicated that she was not provided with any payments. Appellant’s
OPM July 1, 2019 retirement benefits annuity statement printed on August 28, 2019 indicated that
she was provided with a payment of $1,696.00.
By decision dated August 30, 2019, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $2,879.29 for the period
April 28 through May 25, 2019. It explained that the overpayment occurred because appellant
received both FECA compensation and OPM retirement benefits between April 28 and
May 25, 2019. OWCP determined that she was at fault in the creation of the overpayment because
she accepted a payment that she knew or should have known to be incorrect. It explained that
appellant had selected April 28, 2019 as the effective date of her OPM benefits, and over 30 days
had elapsed since her last EFT (electronic funds transfer) deposit was made, allowing ample time
for her to have received and reviewed a statement from her financial institution showing details of
the payment. OWCP requested payment for the full amount of $2,879.29 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.5 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA.6 Section 10.421(a) of OWCP’s implementing regulations provide that a

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8116(a).

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beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.7 The beneficiary must elect the benefit that he or she wishes to receive.8
OWCP procedures also explain that the employee must make an election between FECA
benefits and OPM benefits. The employee has the right to elect the monetary benefit which is the
more advantageous.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $2,879.29 for the period April 28 through
May 25, 2019.
On May 16, 2019 OWCP received appellant’s election of benefits form (Form CA-1105)
dated May 17, 2019 electing to receive OPM benefits effective April 25, 2019. On May 17, 2019
it received another election of benefits form (Form CA-1105) from her dated May 18, 2019
electing to receive OPM benefits effective April 27, 2019. On May 21, 2019 OWCP received
another election of benefits form (Form CA-1105) from appellant dated May 21, 2019 electing to
receive OPM benefits effective April 28, 2019.
A May 22, 2019 OWCP compensation termination sheet indicated that appellant had been
overpaid in the amount of $2,879.29 for the period April 28 to May 25, 2019 due to her selection
of April 28, 2019 as the effective date for her OPM benefits.
On August 30, 2019 OWCP finalized its determination that appellant received an
overpayment of compensation in the amount of $2,879.29 for the period April 28 through
May 25, 2019. It explained that the overpayment occurred because she received both FECA
compensation benefits and OPM retirement benefits during this period. OWCP also determined
that appellant was at fault in the creation of the overpayment.
However, prior to the final overpayment decision, appellant also submitted two additional
election of benefit forms (Form CA-1105) -- one was received by OWCP on June 10, 2019 and
elected to receive OPM benefits effective “July 21, 2018,” and the other was received by OWCP
on August 28, 2019 and elected to receive OPM benefits effective May 25, 2019. The last election
form prior to OWCP’s August 30, 2019 decision therefore elected OPM benefits as of
May 25, 2019.
As well, the Board finds that the evidence of record is insufficient to establish that appellant
actually received OPM benefits for the period April 28 through May 25, 2019.10 Appellant
7

20 C.F.R. § 10.421(a).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
10

See C.P., Docket No. 19-0732 (issued September 5, 2019).

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provided her April 1, May 1, and June 1, 2019 OPM annuity statements printed on August 28,
2019 which all indicated that she had not received any payments.
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.11 The clear language of section 8116(a) of FECA, section
10.421(a) of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent
receipt of FECA wage-loss benefits and a federal annuity.12
OWCP based its overpayment findings on its determination that appellant had received
prohibited dual OPM and FECA benefits for the period April 28 through May 25, 2019. While
the record reflects that she received FECA benefits for this period, which she has elected to receive,
the Board finds that OWCP has not established that she also received OPM benefits for that same
period.13
Therefore, the Board finds that OWCP has not met its burden of proof to establish that the
overpayment of FECA compensation occurred.14
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $2,879.29 for the period April 28 through
May 25, 2019.15

11

Supra note 6.

12

Id.; supra note 7; Federal (FECA) Procedure Manual, supra note 9.

13

See R.R., Docket No. 18-0032 (issued May 3, 2018). The election form signed by appellant on July 26, 2018 is
insufficient to show that she actually began receiving OPM benefits at any time. See also E.R., Docket No. 18-0084
(issued July 27, 2018).
14

See J.A., Docket No. 18-0259 (issued August 5, 2019).

15

In light of the Board’s finding on Issue 1, Issue 2 is moot.

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ORDER
IT IS HEREBY ORDERED THAT the August 30, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Greensboro, NC, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1188
Issued: February 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 1, 2009 appellant, through his attorney, filed a timely appeal of the decision of
the Office of Workers’ Compensation Programs dated February 26, 2009 wherein the Office
denied appellant’s request for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent impairment of his left lower
extremity, for which he received a schedule award.
Appellant, through his attorney, asked the Board to consider a greater impairment based
on the opinion of Dr. Mark Rowley, a Board-certified orthopedic surgeon, as well as the other
medical evidence of record.
FACTUAL HISTORY
On October 15, 1999 appellant, then a 34-year-old mail handler/forklift operator, filed a
traumatic injury claim alleging that on October 2, 1999 his left foot slipped from its position

while he was positioning the forklift to push boxes and that his foot got caught between the
boxes and the forklift. He noted that, as a result of this incident, he sprained his left ankle and
sustained a contusion to his left knee. The Office accepted appellant’s claim for left knee and
left ankle strains and a torn left medial meniscus. On May 4, 2000 appellant underwent an
arthroscopy of the left knee with full evaluation and debridgement of synovial capsular tissue
above the medial compartment and a partial very anterior tear of the meniscus medial. On
July 24, 2003 the Office issued a schedule award for a two percent impairment of the left leg.
On January 26, 2009 appellant filed a claim for an increased schedule award. In support
of his claim for an increased schedule award, he submitted a January 12, 2009 report by
Dr. Rowley, who reported, among other things, that appellant had chronic left knee pain after
prior partial meniscectomy. He opined that, based on diagnosis-based estimates of prior partial
meniscectomy from Table 17-33, page 547 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), appellant was entitled to a permanent
impairment rating of two percent of the lower extremity.
By memorandum dated February 23, 2009, the Office referred appellant’s case to the
Office medical adviser for a determination as to whether appellant was entitled to a greater
schedule award greater than a two percent impairment to the left lower extremity.1 In a
memorandum dated February 23, 2009, the Office medical adviser agreed that appellant had a
two percent impairment of his left lower extremity based on impairment to his knee based on
Table 17-33 of the A.M.A., Guides.2
By decision dated February 26, 2009, the Office noted that appellant had previously been
paid a schedule award for two percent of the left lower extremity (knee). It concluded that the
medical evidence did not support an increase in the impairment already compensated.3
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of schedule 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, the
1

The Office indicated that appellant had a previous schedule award based on a seven percent impairment to the
left lower extremity based on a foot injury. This is also referred to by the Office medical adviser and is noted in the
February 26, 2009 decision. The Board is unable to locate anything in the record that confirms that appellant
received any such award based on a foot impairment.
2

The Office medical adviser mistakenly refers to an impartial medical examiner’s report dated January 12, 2009.
However, it is clear that he is actually referring to the report of appellant’s physician, Dr. Rowley.
3

The Office noted that appellant previously received a schedule award for a seven percent impairment of the left
lower extremity, specifically, the left foot/ankle.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.7
ANALYSIS
In the instant case, the Office accepted appellant’s claim for left knee and left ankle
strains and a torn left medial meniscus. It previously issued a schedule award based on a two
percent impairment of appellant’s left lower extremity. Appellant requested an increased
schedule award based on the opinion of Dr. Rowley and other unspecified evidence. However,
the Board finds that no medical evidence in the record establishes that appellant is entitled to a
schedule award for greater than a two percent impairment of the left leg. Dr. Rowley determined
that appellant was entitled to a schedule award for impairment to his left lower extremity of two
percent based on Table 17-33 of the A.M.A., Guides. The Office medical adviser agreed.
However, appellant already received a schedule award in this amount by decision dated
July 24, 2003. Thus, the Board finds that the record does not establish that appellant is entitled
to a greater award.
CONCLUSION
The Board finds that appellant has not established that he is entitled to more than a two
percent impairment of his left lower extremity, for which he received a schedule award.

6

Id. at § 10.404(a).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2009 is affirmed.
Issued: February 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, VT, Employer
__________________________________________

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

Docket No. 13-2057
Issued: February 7, 2014

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 September 9, 2013 appellant filed a timely appeal from the May 16, 2013 merit
decision and the July 25, 2013 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues in this case are: (1) whether appellant met his burden of proof to establish a
traumatic injury in the performance of duty on August 20, 2012; and (2) whether OWCP
properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On August 22, 2012 appellant, then a 58-year-old mail clerk, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury to his left hand in the performance of
1

5 U.S.C. § 8101 et seq.

duty on August 20, 2012. He stated that his left hand was shut in a side lobby door by a
customer running in the hallway. The employing establishment noted that appellant’s injury had
been caused by an unknown third party. Appellant did not stop work.
In a form report dated August 22, 2012, Andrew M. Ancel, a physician’s assistant, noted
that appellant had fractured the third metacarpal of his left hand. In a duty status report of the
same date, he recommended a work restriction of light lifting. Mr. Ancel prescribed Vicodin for
appellant’s severe pain and recommended that he be seen by an orthopedic surgeon. In a report
from the same date, he reviewed appellant’s history of injury and described findings on physical
examination.
In a duty status report dated August 29, 2012, George Connelly, a physician’s assistant,
recommended work restrictions of no lifting, pushing, pulling or repetitive use of the left hand
until September 4, 2012. Appellant also submitted physical therapy notes dated August 29
through November 5, 2012.
In a diagnostic report dated August 29, 2012, Dr. Judy K. Tam, a Board-certified
radiologist, examined the results of three x-rays of appellant’s left wrist. She found no bony
abnormalities and mild radiocarpal joint space narrowing.
In a report dated August 29, 2012, Mr. Connelly described appellant’s history of injury
and diagnosed a fracture of the left third metacarpal head. Appellant submitted progress notes
from Mr. Connelly dated October 3, 2012 through January 15, 2013.
In a diagnostic report dated October 3, 2012, Dr. Janusz K. Kikut, a Board-certified
radiologist, examined three x-rays of appellant’s left hand. She noted near complete healing of a
fracture at the head of the third metacarpal.
By letter dated April 9, 2013, OWCP advised appellant that his case had been reopened
for consideration because medical bills had exceeded $1,500.00 and that the evidence of record
was insufficient to support his claim. It noted that a physician’s assistant, nurse or nurse
practitioner did not qualify as a “physician” under FECA and that the evidence he had submitted
was signed by physicians’ assistants. In response, appellant resubmitted the August 22, 2012
report signed by Mr. Ancel.
By decision dated May 16, 2013, OWCP denied appellant’s claim. It found that he had
not submitted any medical evidence from a qualified physician. OWCP noted that the medical
evidence in appellant’s case was from physicians’ assistants.
By letter postmarked June 25, 2013 and dated June 15, 2013, appellant requested an oral
hearing.
By decision dated July 25, 2013, OWCP denied appellant’s request for an oral hearing as
untimely. It found that he had not made his request for an oral hearing within 30 days.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8
ANALYSIS -- ISSUE 1
Appellant alleged that on August 20, 2012, he sustained an injury to his left hand in the
performance of duty. The Board finds that he did not submit sufficient medical evidence from a
physician to establish a left third metacarpal fracture in connection with the accepted incident.
2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone, 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

3

Appellant submitted several reports from Mr. Connelly and Mr. Ancel, certified
physicians’ assistants, as well as physical therapy notes. A physician’s assistant or physical
therapists are not defined as a physician under FECA. Their reports do not qualify as probative
medical evidence supportive of a claim for federal workers’ compensation, unless such reports
are countersigned by a physician.9 No reports from Mr. Connelly or Mr. Ancel were
countersigned by a physician. The physical therapy notes were also unsigned by a physician.
Therefore, the reports do not constitute probative medical evidence on the issue of causal
relationship.
Appellant submitted two reports from physicians. In a diagnostic report dated August 29,
2012, Dr. Tam observed no bony abnormalities and mild radiocarpal joint space narrowing. On
October 3, 2012 Dr. Kikut noted near complete healing of a fracture at the head of the third
metacarpal. However, neither Dr. Tam nor Dr. Kikut offered any opinion as to the cause of the
diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.10 The
reports of Drs. Tam and Kikut lack any opinions on the issue of causal relationship, and thus are
of limited probative value on that issue. The evidence of record does not establish that appellant
sustained an employment-related injury in the performance of duty on August 20, 2012.
OWCP procedures also provide that in clear-cut traumatic injury claims, where fact of
injury has been established such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed.11 In the
present case, no physician has offered an affirmative statement regarding causal relationship.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit probative medical opinion from a physician. Consequently, the Board finds that
appellant has not met his burden of proof to establish that his claimed left hand injury was
causally related to the August 20, 2012 employment incident.
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.12 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
9

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians’ assistants);
Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000) (regarding physical therapists).
10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L.
Noble, 55 ECAB 530, 534 (2004).
11

A.S., 59 ECAB 246 (2007); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

12

20 C.F.R. § 501.2(c).

4

issuance of the decision, to a hearing on his claim before a representative of the Secretary.13
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.14 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.15 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request, and must exercise its discretion.16 OWCP’s procedures require that
it exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).17
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing in an appeal form dated June 15, 2013, received on
June 27, 2013, and postmarked June 25, 2013. OWCP denied the request as untimely by
decision dated July 25, 2013. As appellant’s request for an oral hearing was postmarked
June 25, 2013, more than 30 days after OWCP issued its May 16, 2013 decision, he was not
entitled to a hearing as a matter of right.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter of right.18 It properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for an oral hearing on the basis that the case could be pursued by
submitting additional evidence to OWCP in support of his claim with a reconsideration request.
The Board has held that the only limitation on OWCP’s discretionary authority is
reasonableness. An abuse of discretion is generally shown through proof of manifest error, or a
clearly unreasonable exercise of judgment or actions taken, which is contrary to both logic and
probable deductions from established facts.19 The evidence of record does not establish that
OWCP took any action in connection with its denial of appellant’s request for an oral hearing
that could be found to be an abuse of discretion. For these reasons, it properly denied his request
for an oral hearing as untimely under section 8124 of FECA.

13

5 U.S.C. § 8124(b)(1).

14

20 C.F.R. §§ 10.616-10.618.

15

Id. at § 10.616(a).

16

Eddie Franklin, 51 ECAB 223, 227 (1999); Delmont L. Thompson, 51 ECAB 155, 157 (1999).

17

See R.T., Docket No. 08-408 (issued December 16, 2008).

18

Afegalai L. Boone, 53 ECAB 533, 536 (2002).

19

Minnie B. Lewis, 53 ECAB 606, 609 (2002).

5

CONCLUSION
The Board finds that appellant failed to establish that he sustained a left hand injury
causally related to an August 20, 2012 employment incident. The Board further finds that
OWCP properly denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the July 25 and May 16, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 7, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Jose, CA,
Employer
__________________________________________

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

Docket No. 21-0154
Issued: September 14, 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 November 13, 2020 appellant filed a timely appeal from a November 3, 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 appellant submitted additional evidence on appeal. 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 appellant has met her burden of proof to establish that an incident
occurred in the performance of duty on June 22, 2018, as alleged.
FACTUAL HISTORY
On September 22, 2020 appellant, then a 62-year-old former mail handler assistant, filed a
traumatic injury claim (Form CA-1) alleging that on June 22, 2018 she sustained a head and left
eye injury when she struck her head on metal scaffolding while in the performance of duty. On
the reverse side of the claim form O.G., an employing establishment supervisor, controverted the
claim alleging that she had not reported an injury on June 22, 2018. He further noted that appellant
had resigned from her employment on August 28, 2018.
In a June 25, 2018 report, Dr. Mahwash Hirmendi, an emergency medicine specialist,
recounted that appellant related a history of waking up the day before with sudden loss of vision
in her left eye. He further noted that the vision in her left eye had been deteriorating for the past
year, and that she had bumped her head three days prior on a metal beam or bar while at work.
Dr. Hirmendi performed a physical examination and found increased ocular pressure on the left
and that the left eye could detect only lights and shapes. He noted that ultrasound findings were
suggestive of retinal detachment, and computerized tomography (CT) scanning of her head was
negative for acute large vessel territory infarct or intracranial hemorrhage. Dr. Hirmendi
diagnosed traumatic cataract of the left eye and referred appellant to Dr. Robert Burns, an internal
medicine specialist.
In a September 23, 2020 letter, O.G. indicated that the employing establishment had denied
the claim and controverted continuation of pay because appellant had not filed a Form CA-1 within
30 days of its occurrence.
In a statement dated September 28, 2020, appellant indicated that on June 25, 2018 she
provided the employing establishment management office with medical reports documenting that
she struck her head on metal scaffolding while at work.
In a September 29, 2020 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP also requested a narrative medical report from
appellant’s treating physician containing a detailed description of findings and a diagnosis,
explaining how her work activities caused, contributed to, or aggravated her medical conditions.
It afforded her 30 days to submit the necessary evidence.
Thereafter, OWCP received a January 7, 2019 note indicating that Dr. Burns had referred
appellant to Dr. Hau Nguyen, an ophthalmologist, and that she was scheduled to undergo surgery
on the left eye on January 10, 2019 by Dr. Nguyen.
By decision dated November 3, 2020, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted sufficient evidence to establish that the events occurred as

2

alleged. Consequently, it found that she had not met the requirements to establish an injury as
defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
To establish that an injury occurred as alleged the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. 8 In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim. 9

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.W., Docket No. 17-0261(issued May 24, 2017).

9

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

3

ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the June 22,
2018 employment incident occurred while in the performance of duty, as alleged.
Appellant indicated in her September 22, 2020 claim form that she struck her head on metal
scaffolding while in the performance of duty on June 22, 2018, and within a few days, developed
sudden loss of vision in the left eye for which she sought immediate medical care. She related a
consistent history regarding the incident and her subsequent treatment in a September 10, 2020
statement. As noted above, an employee’s statement alleging that an injury occurred at a given
time and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence. 10
Moreover, appellant submitted medical evidence by way of a June 25, 2018 report of
Dr. Hirmendi, who noted that she had struck her head at work three days prior on metal scaffolding.
At that visit, Dr. Hirmendi examined her left eye and she underwent an ultrasound and CT
scanning. The employing establishment controverted appellant’s claim solely due to the fact that
she did not report the incident on the date of injury. Such a controversion in insufficient to provide
persuasive evidence to refute her allegations.11
The Board therefore finds that, based on appellant’s statements and the medical evidence
of record, she has met her burden of proof to establish that the June 22, 2018 employment incident
occurred in the performance of duty, as alleged.12
As appellant has established that the June 22, 2018 employment incident occurred as
alleged, the question becomes whether this incident caused an injury.13 As OWCP found that she
did not establish fact of injury, it did not analyze or develop the medical evidence. 14 Thus, the
Board will set aside OWCP’s November 3, 2020 decision and remand the case for consideration
of the medical evidence. 15 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden
of proof to establish a diagnosed medical condition causally related to the accepted June 22, 2018
employment incident and any attendant disability.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the June 22,
2018 employment incident occurred in the performance of duty, as alleged. The Board further
10

S.A., Docket No. 19-1221 (issued June 9, 2020).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

J.C., Docket No. 18-1803 (issued April 19, 2019); M.C., id.; M.M., Docket No. 17-1522 (April 25, 2018).

13

C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April 9, 2019).

14

Supra note 8; R.W., Docket No. 11-0362 (issued October 24, 2011).

15

W.R., Docket No. 17-0287 (issued June 8, 2018); supra note 13.

4

finds that this case is not in posture for decision with regard to whether she has established an
injury causally related to the accepted June 22, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 14, 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
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1022
Issued: April 22, 2010

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 9, 2009 appellant, through her attorney, filed a timely appeal of the
February 6, 2009 schedule award 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 has more than 22 percent permanent impairment of her
right upper extremity and 11 percent permanent impairment of her left upper extremity, for
which she received schedule awards.
FACTUAL HISTORY
On August 19, 1999 appellant, then a 48-year-old mail processor, filed an occupational
disease claim alleging that she developed numbness and loss of strength in her hands due to
factors of her federal employment. An electromyogram (EMG) dated October 9, 1999
demonstrated evidence of bilateral median nerve entrapment at the wrists, mild on the left and
moderate on the right consistent with bilateral carpal tunnel syndrome. The Office accepted that

appellant sustained bilateral carpal tunnel syndrome on November 10, 1999 and authorized right
surgical release on November 16, 1999. Dr. Christopher D. Casscells, a Board-certified surgeon,
performed right carpal tunnel release on November 12, 1999. Appellant returned to light-duty
work on December 6, 1999. She returned to full duty on July 1, 2002.
Appellant filed a recurrence of disability claim on October 24, 2003 and alleged that the
weakness in her hands had recurred. An EMG demonstrated carpal tunnel entrapment of the
right and left median nerves involving motor and sensory components. The Office denied this
claim on February 19, 2004. Appellant requested an oral hearing.
On July 20, 2001 appellant, then a 50-year-old mail processor, filed an occupational
disease claim alleging that she sustained a tear in her right rotator cuff due to her employment
duties of feeding and sweeping mail into a machine. She first became aware of her condition on
June 22, 2000 and first attributed her condition to her employment on December 4, 2000. The
Office initially accepted her claim for bursitis of the right shoulder on October 31, 2001. It
expanded appellant’s claim on November 28, 2001 to include right rotator cuff tear and the
February 2, 2001 anterior acromioplasty and repair of the right rotator cuff tear. Appellant
underwent additional surgery on December 20, 2001 consisting of a right Mumford procedure
including removal of one centimeter of the distal clavicle.
Appellant requested a schedule award on April 27, 2004 and submitted a report dated
February 12, 2004 from Dr. Nicholas Diamond, an osteopath, who diagnosed bilateral carpal
tunnel syndrome with right carpal tunnel release on November 12, 1999, right thumb basilar joint
tenosynovitis, as well as appellant’s right rotator cuff tear and surgeries. Dr. Diamond noted that
she had nerve conduction velocity (NCV) and EMG studies on November 22, 2003, which
revealed bilateral carpal tunnel syndrome. He performed a physical examination and noted that
appellant’s sensory examination revealed decreased sensation to light touch and to pinprick over
the median nerve distribution of upper extremities. Dr. Diamond provided a correlation of his
findings with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) awarding appellant 1 percent impairment due to loss of range of
motion of the right thumb,1 31 percent impairment due to sensory deficit of the right median
nerve,2 4 percent impairment due to motor strength deficit of the right supraspinatus,3 4 percent
impairment due to motor strength deficit of the right deltoid4 and 10 percent impairment due to
right grip strength deficit.5 He combined these impairments to reach 43 percent impairment of
the right upper extremity and added an additional 3 percent impairment due to pain in
accordance with Chapter 18 of the A.M.A., Guides6 for 46 percent total impairment of the right
upper extremity. Dr. Diamond awarded appellant 31 percent impairment of the left upper
1

A.M.A., Guides 577, Figure 16-15.

2

Id. at 492, Table 16-15, 482, Table 16-10.

3

Id. at 484, Table 16-11; 499, Table 16-15.

4

Id.

5

Id. at 509, Table 16-34.

6

Id. at 574, Figure 18-1.

2

extremity due to sensory deficit of the left median nerve and added an additional 3 percent
impairment due to pain under Chapter 18 of the A.M.A., Guides to reach a total impairment
rating of 34 percent for the left upper extremity.
The Office medical adviser reviewed the evidence of record on August 12, 2004 and
found that appellant had 17 percent impairment of her right upper extremity due to 1 percent
impairment of her right thumb, 5 percent impairment due to carpal tunnel syndrome7 and
10 percent impairment of the right shoulder8 as well as an additional 2 percent for pain.9 The
Office medical adviser found five percent impairment due to left carpal tunnel syndrome10 and
an additional two percent impairment due to pain for a total left upper extremity impairment of
seven percent.11
By decision dated September 7, 2004, the Office granted appellant a schedule award for
17 percent impairment of her right upper extremity and 5 percent impairment of her left upper
extremity.
On September 17, 2004 Dr. Casscells performed a right trigger finger release on the long
finger.
Appellant, through her attorney, requested an oral hearing on September 10, 2004. She
submitted reports dated October 13, 2004 and January 6, 2005 from Dr. Casscells, a Boardcertified orthopedic surgeon, which referenced her previous claim for carpal tunnel syndrome.
Dr. Casscells stated that appellant underwent a right carpal tunnel release on November 12, 1999
and returned to work. He stated that the chronic repetitive nature of her work resulted in a
recurrence of bilateral carpal tunnel syndrome and that as demonstrated by an October 22, 2003
EMG her symptoms had worsened.
By decision dated March 7, 2005, the hearing representative noted that the Office had
denied appellant’s claim for a recurrence of her carpal tunnel syndrome. He noted that at the oral
hearing appellant’s attorney had asserted that her claim should be developed as a new
occupational disease. The hearing representative reviewed the Office’s September 7, 2004
decision and noted that the impairment ratings should have been listed as 17 percent of the right
upper extremity and 5 percent of the left upper extremity. He noted that the Office medical
adviser did not provide any medical reasoning supporting his impairment rating and
distinguishing his methods from Dr. Diamond. The hearing representative directed the Office to
create a new occupational disease claim for carpal tunnel syndrome for appellant with evidence
related to this condition beginning in October 2003, double this claim with her 1999 carpal
tunnel claim and issue a decision regarding her claim for bilateral carpal tunnel syndrome and
7

Id. at 495.

8

Id. at 506, Table 16-27.

9

Id. at 574, Figure 18-1.

10

Id. at 495.

11

Id. at 574, Figure 18-1.

3

right long trigger finger. The hearing representative also set aside the Office’s September 7,
2004 decision and directed the Office to double this claim with the two carpal tunnel claims in
order for the Office medical adviser to review the complete case record and provide medical
reasoning for his impairment rating.
The district medical adviser reviewed the medical evidence on July 12, 2005 and
diagnosed stenosing tenosynovitis and increasing carpal tunnel syndrome. He opined that
appellant had five percent impairment of her right upper extremity and that she reached
maximum medical improvement on March 28, 2005. The Office requested that the district
medical adviser address her permanent impairment due to bilateral carpal tunnel syndrome, right
shoulder conditions and right trigger finger.
In a letter dated October 18, 2005, the Office accepted appellant’s claim for right trigger
finger and aggravation of bilateral carpal tunnel syndrome.
In a report dated July 17, 2006, the district medical adviser found 10 percent sensory
impairment due to Dr. Diamond’s finding of decreased sensation to light tough and pinprick over
the median nerve distribution of the right and left upper extremities or Grade 4 impairment of
25 percent multiplied by the value of the median nerve of 39 percent. The district medical
adviser found that a resection arthroplasty of the distal clavicle was 10 percent impairment. He
noted that loss of strength should not be combined with other impairments. The district medical
adviser found 1 percent impairment for range of motion deficit of the right thumb, 10 percent
due sensory deficit of the median nerve and 10 percent for right shoulder resection arthroplasty
or 20 percent impairment of the right upper extremity. He also allowed three percent due to pain
in accordance with Chapter 18 of the A.M.A., Guides.12 In regard to appellant’s left upper
extremity, the district medical adviser found 10 percent of the left upper extremity due to Grade
4 sensory impairment of the left median nerve and 3 percent due to pain in accordance with
Chapter 18. He noted that any residual discomfort from the right trigger finger would be covered
in the pain award. The district medical adviser doubled the schedule awards.
By decision dated August 2, 2006, the Office granted appellant a schedule award for an
additional nine percent impairment of her upper extremities. Appellant, through her attorney,
requested an oral hearing on August 8, 2006. By decision dated March 2, 2007, the hearing
representative found that the district medical adviser’s report represented the weight of the
medical evidence and established her permanent impairment.
On April 12, 2007 appellant, through her attorney, requested reconsideration and
submitted a report dated March 8, 2007 from Dr. Diamond, who provided range of motion for
appellant’s wrists and noted her right thumb had extension of 40 degrees. Dr. Diamond noted
appellant’s grip and pinch strength and found diminished light touch involving the median nerve
bilaterally. He stated that appellant rated her pain as between 0 and 8 out of 10 in the wrists and
hands bilaterally. Dr. Diamond awarded 31 percent impairment of the upper extremities due to
Grade 2 sensory deficit of the median nerves and 1 percent impairment for loss of range of
motion of the right thumb joint.
12

Id. at (5th ed. 2001).

4

The district medical adviser reviewed Dr. Diamond’s report on June 3, 2007 and
disagreed with his sensory loss grading. He opined that appellant had a Grade 4 rather than
Grade 2 sensory impairment. On September 13, 2007 the district medical adviser again found
that she had no additional impairment.
By decision dated October 11, 2007, the Office denied modification of its prior decision.
Appellant appealed this decision to the Board and in an Order Remanding Case dated
September 22, 2008,13 the Board directed the Office to combine her claims as initially instructed
by the hearing representative and to issue an appropriate decision. The Office reissued the
October 11, 2007 decision on February 6, 2009.
On appeal, appellant’s attorney alleged that there was an unresolved conflict of medical
opinion evidence regarding the extent of appellant’s permanent impairment, which required
referral to an impartial medical specialist.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act14 and its
implementing regulations15 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.16 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.17
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides his opinion is of diminished probative value in
establishing the degree of permanent impairment and the Office may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings reported by the attending
physician.18

13

Docket No. 08-1195 (issued September 22, 2008).

14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

16

Id.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
18

Linda Beale, 57 ECAB 429, 434 (2006).

5

ANALYSIS
Appellant’s physician, Dr. Diamond, an osteopath, provided his impairment rating on
February 12, 2004 and found that appellant had a Grade 2 impairment of the median nerve for
31 percent impairment of the upper extremity. Grade 2 impairment encompasses decreased
superficial cutaneous pain and tactile sensibility with abnormal sensations or moderate pain that
may prevent some activities with values of 61 to 80 percent.19 The Board notes that
Dr. Diamond found that appellant’s sensory examination demonstrated only decreased sensation
to light touch and pin prick in the median nerve distribution. Dr. Diamond also provided an
impairment rating for loss of strength of the right supraspinatus and deltoid muscles as well as
loss of grip strength. In providing these ratings he failed to consider that the A.M.A., Guides
provide loss of strength should not be rated in the presence of decreased range of motion, such as
the loss of range of motion of appellant’s thumb found by Dr. Diamond,20 who also estimated
that appellant had three percent impairment due to pain found in Chapter 18 of the A.M.A.,
Guides. The fifth edition of the A.M.A., Guides allows for impairment percentage to be
increased by up to three percent for pain by using Chapter 18, which provides a qualitative
method for evaluating impairment due to chronic pain. If an individual appears to have a painrelated impairment that has increased the burden on his or her condition slightly, the examiner
may increase the percentage up to three percent. However, examiners should not use Chapter 18
to rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.21
Dr. Diamond did not provide any reason for adding the additional impairment rating for pain.
Such reasoning would be necessary as he already accorded appellant 31 percent sensory
impairment of the median nerve. The Board finds that the additional three percent impairment
for pain, should not be considered in appellant’s final impairment rating.
Dr. Diamond completed a supplemental report on March 8, 2007 awarding 31 percent
impairment of the upper extremity due to Grade 2 sensory deficit of the median nerves bilaterally
and 1 percent impairment for loss of range of motion of the right thumb joint. He again noted
diminished light touch involving the median nerve bilaterally and stated that appellant rated her
pain as between 0 and 8 out of 10 in the wrists and hands bilaterally.
The district medical adviser reviewed Dr. Diamond’s findings of decreased sensation to
light touch and to pinprick over the median nerve distribution of upper extremities as well as
appellant’s statement that her hand pain ranged from 0 to 8 out of 10. He opined that her
objective findings supported Grade 4 impairment of the median nerve. Grade 4 impairment is
the result of distorted superficial tactile sensibility with or without minimal abnormal sensations
or pain that is forgotten during activity with values of 1 to 25 percent. The Board concludes that
these findings of Dr. Diamond are comparable to Grade 4 impairment under the A.M.A., Guides,
distorted superficial tactile sensibility or diminished light touch. It is well established that, when
19

A.M.A., Guides 482, Table 16-10.

20

Id. at 508. “Decreased strength cannot be rated in the presence of decreased motion….”

21

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides, 571, 18.3(b); P.C., 58 ECAB 539 (2007); Frantz Ghassan, 57 ECAB 349 (2006).

6

the attending physician fails to provide an estimate of impairment conforming to the A.M.A.,
Guides his opinion is of diminished probative value in establishing the degree of permanent
impairment and the Office may rely on the opinion of its medical adviser to apply the A.M.A.,
Guides to the findings reported by the attending physician.22 The Board finds that the district
medical adviser properly reduced appellant’s impairment rating to reflect the findings provided
by Dr. Diamond.
CONCLUSION
The Board finds that appellant has no more than 22 percent permanent impairment of her
right upper extremity and 11 percent permanent impairment of her left upper extremity for which
she has received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2010
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

22

Linda Beale, 57 ECAB 429, 434 (2006).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 15-0396
Issued: June 19, 2015

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 December 10, 2014 appellant filed a timely appeal from an August 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on June 13, 2014 as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 20, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant stated that she was instructed to go out in a storm and redeliver a
regular carrier’s mail on Route 19. When she was exiting a building she slipped down a flight of
steps, injuring her buttocks and lower back.
FACTUAL HISTORY
On June 16, 2014 appellant, then a 43-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a lower back sprain on June 13, 2014 due
to a slip an fall on “water on steps of building.” She stopped work on June 14, 2014 and has not
returned.
In reports dated June 19 and 26, 2014, Dr. Carol Tunney, a family medicine specialist,
stated that appellant was under evaluation for a severe back, neck, and leg injury which occurred
due to a significant fall down wet steps on June 13, 2014 while performing the duties of her
employment. She indicated that appellant was first seen at the clinic on June 16, 2014 and due to
the severity of the injury she was prescribed medications that caused sedation and altered mental
status. Dr. Tunney reported that appellant underwent x-rays and a magnetic resonance imaging
(MRI) scan on June 24, 2014 and the results remained pending. She took appellant off work
until August 4, 2014.
In a July 9, 2014 letter, OWCP notified appellant of the deficiencies of her claim and
requested a detailed description as to how the alleged injury occurred. It afforded her 30 days to
submit additional evidence and respond to its inquiries. Appellant did not respond.
By decision dated August 20, 2014, OWCP denied appellant’s claim finding that the
evidence submitted was not sufficient to establish fact of injury as she did not submit factual
evidence “to support that the injury and/or events occurred.”
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5

3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.6
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and his or her
subsequent course of action.7 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on an employee’s statement in determining whether a prima facie case has been
established. An employee’s statement alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.8
The employee must also submit sufficient evidence, generally only in the form a medical
evidence, to establish that the employment incident caused a personal injury.9
ANALYSIS
Appellant alleged that she sustained an injury on June 13, 2014 due to “water on steps of
building.” On appeal, she stated that she was instructed to go out in a storm and redeliver a
regular carrier’s mail on Route 19. When she was exiting a building she slipped down a flight of
steps injuring her buttocks and lower back. Appellant submitted reports from Dr. Tunney who
indicated that she was first seen at the clinic on June 16, 2014 and evaluated for a severe back,
neck, and leg injury. Dr. Tunney indicated that appellant’s injury occurred due to a significant
fall down wet steps on June 13, 2014 while performing the duties of her employment. She also
reported that the results from an MRI and x-rays taken on June 24, 2014 remained pending.

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
8

See D.B., 58 ECAB 529 (2007); Robert A. Gregory, 40 ECAB 478 (1989); Thelma S. Buffington, 34 ECAB
104 (1982).
9

See J.Z., 58 ECAB 529 (2007).

3

The Board finds that the factual evidence is insufficient to establish that the employment
incident occurred as alleged, i.e., that appellant fell down steps on June 13, 2014. Appellant did
not seek immediate medical attention. The record indicates that she failed to obtain medical
treatment until June 16, 2014, three days after the incident in question. Appellant stated that she
was delivering mail on Route 19 in a storm when she slipped and fell down a flight of steps, but
she failed to identify the building and its location, or describe the manner of her fall. She did not
provide a detailed account of the incident, as required in a traumatic injury claim.10 Appellant’s
allegations were vague and did not relate with specificity the circumstances, or the exact and
immediate consequences, of the injury.11 She submitted no witness statements in support of her
claim. Although OWCP specifically asked appellant to provide a detailed description as to how
the alleged injury occurred, she provided no additional information prior to the August 20, 2014
merit decision. Appellant has not offered any explanation for these factual deficiencies in her
claim. As noted above, such defects in the factual evidence are sufficient to cast doubt on
whether the employment incident occurred as alleged.12
Appellant has failed to establish fact of injury: she did not submit sufficient evidence to
establish that she actually experienced an employment incident at the time, place, and in the
manner alleged. Since she failed to establish the first component of fact of injury, it is not
necessary to discuss whether she submitted medical evidence sufficient to establish that a
medical condition existed and whether the condition was causally related to the employment
factors alleged.13 Thus, Board finds that appellant has not met her burden of proof to establish
an injury in the performance of duty on June 13, 2014, as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty on June 13, 2014, as alleged.

10

See V.H., Docket No. 12-1621 (issued December 21, 2012).

11

Id.

12

See S.M., Docket No. 12-946 (issued on January 29, 2013) (where the employee alleged that she fell down
stairs at work, the Board found that the factual evidence was not sufficient to establish that the employment incident
occurred as alleged on the basis that she provided late notification of injury, did not seek immediate medical
attention, and provided no witness statements).
13

See Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). As appellant failed to establish that the claimed event
occurred as alleged, it is not necessary to discuss the probative value of medical evidence. Id.

4

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AIR SYSTEMS COMMAND, San Diego, CA
Employer
_________________________________________
Appearances:
Jeffery A. Morris, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1001
Issued: January 31, 2022

Case Submitted on the Record

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

On June 21, 2021 appellant through counsel, filed a timely appeal from a February 16,
2021, merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-1001.
In a letter dated December 21, 2021, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel’s request for
withdrawal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 21-1001 is dismissed.
Issued: January 31, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2