United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Detroit, MI, Employer
__________________________________________

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

Docket No. 09-697
Issued: November 17, 2009

Case Submitted on the Record

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

JURISDICTION
On January 13, 2009 appellant, through her representative, filed a timely appeal from a
December 16, 2008 decision of the Office of Workers’ Compensation Programs denying merit
review. As more than one year had elapsed since the most recent merit decision of November 2,
2007 to the filing of this appeal, the Board lacks jurisdiction over the merits of the case pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for further merit
review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 4, 1979 appellant, then a 22-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that on October 21, 1978 an improperly locked all-purpose
container fell on her head while she was bending down. She continued to work for the
employing establishment until December 3, 1978 when her appointment expired. Appellant

returned to work for the employing establishment from June 10 through July 2, 1979 and July 21,
1980 through February 27, 1981. She also worked intermittently for several private employers
during the period July 1979 through April 1984, at which time she stopped working due to
headaches. The Office accepted the claim for scalp contusion, organic brain syndrome and
depressive reaction. It authorized psychiatric treatment. On January 29, 1985 the Office placed
appellant on the periodic rolls.1
On March 2, 2005 the Office referred appellant, together with a statement of accepted
facts, for a second opinion evaluation addressing her continuing disability and residuals from her
work-related injury. In the statement of accepted facts, it noted that she had a nonwork-related
medical condition of schizophrenia.
In an April 11, 2005 medical report, Dr. Jay A. Inwald, Ph.D., a clinical psychologist,
opined that appellant’s current difficulties, including a diagnosis of schizophrenia, were
unrelated to the October 21, 1978 work injury. He found that she could start working part time.
The Office determined that a conflict of medical opinion existed between Dr. Gerald A.
Shiener, a Board-certified psychologist and appellant’s treating physician, and Dr. Inwald
regarding any ongoing residuals and disability. It referred appellant to Dr. Frank Greiffenstein, a
Board-certified clinical neuropsychologist, for resolution of the conflict.
In a March 13, 2006 medical report, Dr. Greiffenstein reviewed appellant’s medical and
occupational history. He noted that she presented with a subjective disability and features of
avoidant personality disorder. Dr. Greiffenstein opined that the diagnosis of organic brain
syndrome was not supported by objective evidence and that there was no evidence that appellant
sustained a brain injury in 1978. Further, he stated that the October 21, 1978 employment injury
was not a contributing factor to her current neurocognitive and psychological presentation.
Dr. Greiffenstein opined that appellant did not have any neuropsychologic factors influencing
her ability to work and that she could work in any area in which she was qualified.
On November 17, 2006 the Office proposed termination of benefits on the grounds that
the weight of the medical evidence demonstrated that appellant no longer had any residuals
relating to the October 21, 1978 employment injury. By decision dated December 27, 2006, it
finalized the termination of medical and compensation benefits effective that date.
On January 25, 2007 appellant, through her representative, requested an oral hearing
before an Office hearing representative. A telephonic hearing before an Office hearing
representative took place on August 17, 2007.
In medical reports dated July 10 and August 13, 2007, Dr. Shiener stated that he
disagreed with Dr. Greiffenstein’s report, which he found inconsistent with appellant’s history,
internally inconsistent and not based on any diagnostic studies. He diagnosed cognitive and
mood disorder secondary to traumatic brain injury, post-traumatic brain injury and cephalgia but
1

By decision dated October 22, 1987, the Office terminated appellant’s wage-loss benefits on the grounds that
the medical evidence did not support a continuing disability. On April 13, 1988 it reinstated benefits after further
developing the evidence as directed by an Office hearing representative in a March 2, 1988 decision.

2

noted that personality disorder and schizophrenia were not indicated. Dr. Shiener opined that
appellant was unable to perform any sort of work due to the effects of her employment-related
traumatic brain injury. He also provided a March 17, 2007 electroencephalography (EEG) report
revealing abnormal left temporoparietal slowing.
By decision dated November 2, 2007, the Office hearing representative affirmed the
termination of benefits finding that Dr. Greiffenstein’s medical report represented the weight of
the medical evidence. Further, he found that appellant did not provide sufficient medical
evidence to overcome the special weight accorded Dr. Greiffenstein’s opinion. However, the
Office hearing representative advised that further development was necessary and that the Office
should request a supplemental report from Dr. Greiffenstein addressing a corrected statement of
accepted facts with no reference to schizophrenia, the March 17, 2007 EEG report and
Dr. Shiener’s July 10 and August 13, 2007 medical reports.
In June 2, 2008 letters, appellant’s representative requested that the Office provide an
update as to the status of the further development directed in the November 2, 2007 hearing
representative’s decision.
By letters dated June 6 and July 9, 2008, the Office notified appellant that the
November 2, 2007 decision affirmed the December 27, 2006 termination of benefits and that no
further action would be taken.
On October 20, 2008 appellant, through her representative, filed a request for
reconsideration. Appellant’s representative contended that the Office violated due process by
refusing to implement the orders of the Office hearing representative, which directed the Office
to request a supplemental report from Dr. Greiffenstein after supplying an updated statement of
accepted facts, the EEG report and the medical reports from Dr. Shiener. He also argued that the
failure of the Office to issue an updated statement of accepted facts prevented appellant from
obtaining additional opinions from a specialist. Appellant’s representative contended that the
Office should either amend its decision to terminate benefits or issue a new decision after
receiving Dr. Greiffenstein supplemental report.
By letter dated October 31, 2008, the Office requested that Dr. Greiffenstein provide a
supplemental report after reviewing the March 17, 2007 EEG report, Dr. Shiener’s July 10 and
August 13, 2007 medical reports and the enclosed revised statement of accepted facts.
In a November 10, 2008 addendum, Dr. Greiffenstein reviewed the revised statement of
accepted facts, March 17, 2007 EEG report and Dr. Shiener’s medical reports. He explained that
his previous opinion regarding appellant’s disability and remaining work-related residuals
remained unchanged.
By decision dated December 16, 2008, the Office denied the request for reconsideration
on the grounds that the June 2 and October 24, 2008 letters from appellant’s representative did
not provide new or relevant evidence or provide an argument for error of fact or law and, as
such, were insufficient to warrant merit review. It stated that, through the letters, appellant’s
representative argued that the Office did not take appropriate follow-up action as recommended
by the Office hearing representative. The Office concluded, however, that this argument did not

3

show that there was “clear evidence of error” in the November 2, 2007 merit decision or that the
Office made a “mistake” in the prior decision.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act provides that the Office
may review an award for or against payment of compensation at any time on its own motion or
upon application.2 The employee shall exercise this right through a request to the Office. This
request, along with the supporting statements and evidence, is called the application for
reconsideration.3
The Act does not entitle a claimant to a review of an Office decision as a matter of right.
This section vests the Office with discretionary authority to determine whether it will review an
award for or against compensation.4 It, through regulations, has imposed limitations on the
exercise of its discretionary authority under section 8128(a).5 To require the Office to reopen a
case for merit review under section 8128(a) of the Act,6 the Office’s regulations provide that the
evidence or argument submitted by a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.7 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.8 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.9
ANALYSIS
The issue is whether the Office properly denied appellant’s request for merit review
pursuant to 5 U.S.C. § 8128(a). On December 27, 2006 it terminated appellant’s medical and
wage-loss benefits. In a November 2, 2007 decision, an Office hearing representative affirmed
the termination of benefits but directed the Office to undertake additional development of the
medical evidence. On October 20, 2008 appellant, through her representative, requested
reconsideration on the grounds that the Office’s failure to follow the directions of the Office
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.605.

4

5 U.S.C. § 8128(a).

5

Annette Louise, 54 ECAB 783, 789-90 (2003).

6

Supra note 2. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application.” Supra note 4.
7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

4

hearing representative violated her constitutional right of due process and precluded her from
obtaining additional medical evidence. The Office subsequently requested that Dr. Greiffenstein
review additional evidence and provide an updated medical report. Dr. Greiffenstein submitted a
November 10, 2008 addendum addressing the additional medical evidence and its affect on his
opinion regarding the residuals and remaining disability from the 1978 work injury.
The Board finds that, by soliciting additional medical opinion from Dr. Greiffenstein, the
Office proceeded to exercise its discretionary authority under 5 U.S.C. § 8128 to reopen the case
on its own motion. This case is similar to David F. Garner,10 in which the Board found that,
after reopening the merits of the employee’s claim for further development, the Office abused its
discretion in denying reconsideration. The Board noted that the Office should have conducted a
merit review of the claim.
At the direction of the Office hearing representative, the Office undertook further
development of the evidence. On October 31, 2008 it requested a supplemental report from
Dr. Greiffenstein regarding the residuals of the 1978 employment injury and appellant’s current
disability. As the record currently stands, the Office has never issued a merit decision evaluating
the November 10, 2008 report obtained from Dr. Greiffenstein. Exercising its discretionary
authority, it solicited and received pertinent and relevant evidence not previously considered.
Therefore, the Office must conduct an appropriate merit review of the evidence under section
8128(a). Following such a review and any development which the Office deems necessary, the
Office shall issue an appropriate decision in this case.11
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for further merit
review pursuant to 5 U.S.C. § 8128(a).

10

43 ECAB 459 (1992). (Gerson, D., dissenting). In the instant case, the Office appeared to commingle the
standard for review for a timely reconsideration request with the standard of review for an untimely reconsideration
request by additionally finding that counsel’s argument did not show “clear evidence of error” or “mistake” on the
part of the Office. As appellant’s reconsideration request was timely filed, the Office improperly noted the clear
evidence of error standard.
11

See Joyce A. Fasanello, 49 ECAB 490 (1998); David F. Garner, supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the December 16, 2008 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
constituent with this decision.
Issued: November 17, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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D.C., Appellant
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and
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DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Saint Cloud, MN, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-334
Issued: April 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On November 27, 2012 appellant sought appeal from a November 8, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his request for a review of
the written record. The Board assigned Docket No. 13-334.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. On June 5, 2012 appellant filed a claim for a
schedule award. In an August 22, 2012 decision, OWCP awarded 17 percent permanent
impairment of the left leg. It mailed the decision to an incorrect address. In an August 31, 2012
telephone call memorandum, OWCP noted that the employing establishment had contacted it
regarding appellant’s schedule award check being sent to the wrong address. The August 22,
2012 decision was returned to OWCP as being unable to forward on September 4, 2012. On
October 3, 2012 appellant requested a review of the written record. By decision dated
November 8, 2012, OWCP found that he was not entitled to review of the written record as his
request was not made within 30 days of the issuance of its August 22, 2012 decision.
OWCP regulations provide that “A copy of the decision shall be mailed to the
employee’s last known address.”1 Under the mailbox rule, it is presumed, in the absence of
evidence to the contrary, that a notice mailed to an individual in the ordinary course of
business was received by that individual. This presumption arises when it appears from the
1

20 C.F.R. § 10.127.

record that the notice was properly addressed and duly mailed.2 However, as a rebuttable
presumption, receipt will not be assumed when there is evidence of nondelivery.3 Also, it is
axiomatic that the presumption of receipt does not apply where a notice is sent to an incorrect
address.4 OWCP mailed the August 22, 2012 decision to an incorrect address and it was
returned as OWCP as being unable to forward on September 4, 2012. Thus, the Board finds
that OWCP did not properly issue its August 22, 2012 decision.5 For this reason, the case will
be remanded to OWCP for proper adjudication to include the issuance of de novo decision.
Accordingly,
IT IS HEREBY ORDERED THAT the November 8, 2012 decision of OWCP is set
aside and the case is remanded to OWCP for further action consistent with this order of the
Board.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

See Michelle Lagana, 52 ECAB 187 (2000).

3

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

4

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

5

See Tammy J. Kenow, 44 ECAB 619 (1993).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, SC, Employer
__________________________________________

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)

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

Docket No. 13-2004
Issued: February 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant filed a timely appeal from a June 18, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty.
FACTUAL HISTORY
On May 1, 2013 appellant, then a 55-year-old manager of distribution operations, filed an
occupational disease claim (Form CA-2) alleging severe stress in the performance of duty. He

1

5 U.S.C. § 8101 et seq.

first became aware of his condition on June 19, 2012 and of its relationship to his employment
on April 24, 2013.
Appellant submitted a number of progress notes dating from January 2, 2012 prepared by
Dr. Brabham M. Hester, Jr., a Board-certified family physician, who diagnosed appellant with
severe stress and stated that appellant was unable to work.
By letter dated May 13, 2013, OWCP requested additional factual and medical evidence
from appellant. It afforded him 30 days to submit additional evidence. On the same date,
OWCP requested information from the employing establishment regarding appellant’s
allegations, duties and accommodations provided to reduce his stress.
On May 14, 2013 the employing establishment challenged appellant’s claim. It stated
that, based upon its investigation, he did not sustain his condition in the performance of duty.
In a letter dated August 21, 2012, the employing establishment noted that appellant had
submitted medical notes indicating that he was unable to work due to severe stress. Appellant
was requested to report for an investigative interview on August 29, 2012 with regards to his
continued absence from work. The interview was later rescheduled for September 4, 2012.
In a record of an interview dated September 4, 2012, appellant stated that the severe
stress diagnosis in excuse notes dated June 21, July 11 and August 7, 2012 was not related to his
work. He could not give an answer as to whether he planned to return to his position, because
Dr. Hester continued to recommend that he not work.
On October 26, 2012 the employing establishment responded to questions from appellant
about voluntary early retirement.
In a record of an interview dated January 28, 2013, appellant noted that he had plans of
returning to his position and that he would retire in September 2013.
In an undated statement, appellant responded to OWCP’s inquiries. He explained that his
condition was related to his manager’s conduct, citing specific examples. Appellant explained
that when Mr. Veal became acting plant manager in October or November 2011, he did not relay
his expectations to the supervisors/managers, appellant included, but he continually threatened to
fire or demote the supervisors to craft positions. He stated that someone was brought in to take
his position and he was reassigned to another position, without explanation. When appellant
underwent a knee replacement in January 2012, he was placed on absence without leave
(AWOL) for one week. He related that Mr. Veal called him after his shift was over one day
during January 2012, stated that he had abandoned his job and asked him to report to his office at
7:30 a.m. Appellant noted that he had been asked to report for investigative interviews dealing
with his work attendance. He also alleged that his manager had used inappropriate language on
two occasions in November 2011 and January 2012. Appellant stated that he had no stresses
outside of his federal employment and that he had not been to counseling or taken medicine for
an emotional condition before his manager’s arrival, but now he experienced lack of sleep,
anxiety and grinding of teeth as a result of his condition. He explained that his last day of work
was January 26, 2012, when he requested AWOL for one week due to knee replacement surgery
and his manager would not accept his doctor’s note as written.
2

On June 5, 2013 the employing establishment further explained its challenge of
appellant’s claim. It noted that he had been out of work since January 26, 2012 and that the
medical evidence had not established that his condition was work related. The employing
establishment stated that appellant was not working as of the date he first became aware of his
condition.
By decision dated June 18, 2013, OWCP denied appellant’s claim. It found that he had
not established that his stress arose in the course of employment and within the scope of
compensable work factors.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional condition in the performance of
duty, an employee must submit the following: (1) medical evidence establishing that he or she
has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers compensation.4 Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.7 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.8 In determining whether the employing establishment has erred or acted abusively, the
2

V.W., 58 ECAB 428, 431 (2007); Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

3

L.D., 58 ECAB 344, 350 n.8 (2007); Robert Breeden, 57 ECAB 622, 625 (2006).

4

A.K., 58 ECAB 119, 121 (2006); David Apgar, 57 ECAB 137, 140 (2005).

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309, 314 (2001); Lillian Cutler, 28 ECAB 125, 129 (1976).

6

J.F., 59 ECAB 331, 338 (2008); Gregorio E. Conde, 52 ECAB 410, 411-12 (2001).

7

See Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387, 391-92 (1990).

8

See William H. Fortner, 49 ECAB 324, 325 (1998).

3

Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.9
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. This principle recognizes that a supervisor or manager must
be allowed to perform their duties and that employees will, at times, disagree with actions taken.
Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.10 Although the handling of leave
requests and attendance matters are generally related to employment, they are administrative
matters and not a duty of the employee.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.12 Mere perceptions of harassment or discrimination are not compensable under FECA.13
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.14 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.15 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.16
In cases involving emotional 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 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
factors of employment and may not be considered.17 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.18 When the matter asserted is a compensable factor of employment and the evidence of

9

Ruth S. Johnson, 46 ECAB 237, 241 (1994).

10

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

11

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611, 615-16 (2006).

12

K.W., 59 ECAB 271, 276 (2007); Robert Breeden, supra note 3.

13

M.D., 59 ECAB 211, 216-17 (2007); Robert G. Burns, 57 ECAB 657, 661 n.14 (2006).

14

J.F., 59 ECAB 331, 339 (2008); Robert Breeden, supra note 3.

15

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616, 620 (2005);
Penelope C. Owens, 54 ECAB 684, 686 (2003).
16

Robert Breeden; supra note 3; Beverly R. Jones, 55 ECAB 411, 416 (2004).

17

D.L., 58 ECAB 217, 220 (2006); Jeral R. Gray, supra note 11.

18

K.W., 59 ECAB 271, 277 (2007); David C. Lindsey, Jr., 56 ECAB 263, 269 (2005).

4

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.19
ANALYSIS
Appellant has not alleged that his emotional condition is related to his regular duties as a
manager of distribution operations. Rather, he attributed his emotional condition to actions taken
by his manager. The Board must review whether the alleged incidents are established as
compensable employment factors under the terms of FECA.
Appellant made several allegations related to administrative and personnel matters. In
Thomas D. McEuen,20 the Board held that an employee’s emotional reaction to most
administrative or personnel matters is not covered under FECA because those matters pertain to
procedures and requirements of the employer and do not bear a direct relation to the employee’s
work. The Board noted, however, that coverage under FECA would attach if the facts showed
error or abuse by the employing establishment’s supervisor in the administrative or personnel
action dealing with the claimant. Absent such evidence of error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.21
Appellant has alleged that several administrative or personnel actions taken by his new
supervisor, Mr. Veal, led to his emotional condition. Regarding appellant’s allegation that he
was reassigned to a different position, he has not explained how this reassignment was made in
error or was abusive.22 Appellant reported that his supervisor called him after his shift was over
and asked him to report to his office at 7:30 a.m. and questioned him about his work
attendance.23 He stated that his supervisor did not accept his doctor’s notes as an excuse for a
period of absence due to knee surgery and placed him in AWOL status.24 These administrative
matters are not compensable without a showing of error or abuse by the employing
establishment. While appellant contended that his supervisor undertook these actions and that
they resulted in his emotional condition, he has not substantiated these allegations through
documents or witness statements to demonstrate that the employing establishment acted
unreasonably in undertaking these actions.
19

Robert Breeden, supra note 3.

20

Supra note 7.

21

See S.M., supra note 10; David C. Lindsey, Jr., supra note 18; Richard J. Dube, 42 ECAB 916, 921 (1991);
Thomas D. McEuen, supra note 7.
22

The assignment to a different position is an administrative function that is not compensable absent error or
abuse. D.L., 58 ECAB 594 (2007).
23

See K.W., 59 ECAB 271 (2007). Investigations and interviews are considered to be an administrative function
of the employing establishment as they are not related to an employee’s day-to-day duties or specially assigned
duties.
24

See T.G., 58 ECAB 189 (2006).

5

Appellant contended that his supervisor used inappropriate language. Harassment by a
supervisor may be a compensable factor of employment. However, for harassment to give rise to
a compensable disability under FECA, there must be evidence that harassment or discrimination
did occur. Mere perceptions or feelings of harassment do not constitute a compensable factor of
employment.25 An employee’s allegations that he or she was harassed or discriminated against is
not determinative of whether or not harassment or discrimination occurred.26 To establish
entitlement to benefits, a claimant must show a factual basis for his or her claim by supporting
his or her allegations with probative and reliable evidence.27 Appellant specifically referred to
an incident of use of inappropriate language in early January 2012, and also stated that his
supervisor’s abusive language was constant. He did not articulate these alleged statements or
submit witness statements in support of his claim and did not support his allegations with other
probative and reliable evidence. The Board finds that appellant has failed to establish that he
was harassed or otherwise subjected to abuse by the employing establishment.
Consequently, appellant has not established his claim for an emotional condition, as he
has not attributed his claimed condition to any compensable employment factors.28 He 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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

25

G.S., supra note 15; J.C., 58 ECAB 594 (2007); Robert G. Burns, supra note 13.

26

See C.T., supra note 11; K.W., supra note 12; Ronald K. Jablanski, supra note 15.

27

See G.S., supra note 15; C.S., 58 ECAB 137, 142 (2006); Frankie McDowell, 44 ECAB 522, 526 n.4 (1993);
Ruthie M. Evans, 41 ECAB 416, 425 (1990).
28

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. See L.K., Docket No. 08-849 (issued June 23, 2009); V.W., 58 ECAB 428, 435 n.29 (2007);
Alberta Dukes, 56 ECAB 247, 250 (2005); Margaret S. Krzycki, 43 ECAB 496, 503 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 18, 2013 is affirmed.
Issued: February 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISRTATION MEDICAL
CENTER, Grand Junction, CO, Employer
__________________________________________

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

Docket No. 07-779
Issued: July 6, 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 January 29, 2007 appellant filed a timely appeal from a January 12, 2007 decision of
the Office of Workers’ Compensation Programs, denying his claim for an occupational disease.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
occupational disease in the performance of duty causally related to factors of his employment.
FACTUAL HISTORY
On October 3, 2006 appellant, then a 61-year-old housekeeping aid, filed an occupational
disease claim alleging that he sustained an injury to his hands causally related to his
employment. His job duties included mopping and sweeping floors and cleaning bathrooms.
Appellant first realized his condition was employment related on September 27, 2006. He stated

that he was diagnosed with right carpal tunnel syndrome in 1996 and underwent surgery.
Subsequently, appellant’s right hand pain worsened and he developed pain in his left hand. He
indicated that he was treated for his hand condition on October 4, 2006 by Dr. Bret Barney.1 On
November 2, 2006 the employing establishment stated that appellant’s duties included filling and
emptying five-gallon mop buckets and using a mop for cleaning and polishing floors for four to
five hours a day.
On October 20, 2006 the Office asked appellant to provide additional evidence, including
a comprehensive medical report explaining how his right and left hand conditions were causally
related to factors of his employment.
In an April 15, 1996 report, Dr. Robert V. Graves, an attending physiatrist, stated that
appellant had worked at the employing establishment for 14 months and had a 2- to 3-month
history of right hand pain and numbness. A nerve conduction study and appellant’s history were
consistent with right carpal tunnel syndrome and early carpal tunnel compression in the left
hand.2 Dr. Graves provided a copy of the nerve conduction study results. He indicated that
appellant should continue work modifications and use hand splints.
By decision dated January 12, 2007, the Office denied appellant’s claim on the grounds
that the evidence did not establish a causal relationship between his hand conditions and his
employment.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.3 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of

1

There is no report of record from Dr. Barney.

2

There is no indication in the record that the Office has accepted that appellant sustained a 1996 employment
injury or carpal tunnel syndrome.
3

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

2

reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed injury and his
employment.5 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration, as well as findings upon physical
examination of appellant and his medical history, state whether the employment factors caused
or aggravated appellant’s diagnosed conditions and present medical rationale in support of his or
her opinion.6
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof in establishing that
he developed carpal tunnel syndrome or any other condition in 2006 causally related to factors of
his federal employment.
Appellant alleged that he experienced pain and numbness in both hands due to his
hospital work duties, including sweeping and mopping floors and cleaning bathrooms. He stated
that he was diagnosed with right carpal tunnel syndrome in 1996 and underwent surgery.
Subsequently, appellant’s right hand pain worsened and he developed pain in his left hand. He
submitted an April 15, 1996 report from Dr. Graves who stated that he had worked at the
employing establishment for 14 months and had a 2- to 3-month history of right hand pain and
numbness. Dr. Graves diagnosed right carpal tunnel syndrome and early carpal tunnel
compression in the left hand and indicated that appellant should continue work modifications and
use hand splints. However, he did not provide a rationalized opinion explaining how appellant’s
hand conditions were causally related to the identified employment duties. Dr. Graves indicated
that appellant’s right carpal tunnel condition preexisted his employment. He did not explain how
appellant’s work as a housekeeping aid contributed to the diagnosed conditions. Further, there is
no medical evidence of record addressing appellant’s 2006 claim for right and left hand
conditions. Appellant indicated that he saw Dr. Barney in October 2006 for his claimed
condition but there are no medical reports of record from Dr. Barney. For these reasons,
appellant has not met his burden of proof in establishing his occupational disease claim for
injuries to his hands.7

4

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

5

Donald W. Long, 41 ECAB 142 (1989).

6

Id.

7

On appeal, appellant indicates that additional medical evidence was mailed to the Office on January 18, 2007,
subsequent to the January 12, 2007 decision. There is no copy of additional medical evidence in the record. In any
event, the Board may not consider new evidence on appeal. The Board’s jurisdiction is limited to the evidence that
was before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c).

3

CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2007 is affirmed.
Issued: July 6, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
DEPARTMENT OF DEFENSE, DEPARTMENT
OF THE ARMY, Fort Bliss, TX, Employer
__________________________________________

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

Docket No. 07-1251
Issued: December 17, 2007

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 10, 2007 appellant filed a timely appeal from a March 29, 2007 merit decision
of the Office of Workers’ Compensation Programs denying her request for an additional
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the schedule award issue.
ISSUE
The issue is whether appellant sustained more than a five percent permanent impairment
to her left upper extremity for which she previously received a schedule award.
FACTUAL HISTORY
The case has previously been on appeal to the Board.1 In the prior appeal, the Board set
aside the Office’s November 30, 2005 and February 14, 2006 decisions and remanded the case to
the Office. By decision dated November 30, 2005, the Office issued appellant a schedule award
1

Docket No. 06-853 (issued October 26, 2006).

for a five percent impairment of the left upper extremity. Additionally, by February 14, 2006
decision, the Office issued a decision denying appellant’s request for reconsideration. The Board
found a conflict in the medical opinion evidence between Dr. Michael J. Mrochek, an examining
Board-certified physiatrist and Dr. Randy J. Pollet, a second opinion Board-certified orthopedic
surgeon, as to whether appellant had reflex sympathetic dystrophy to her upper left extremity
condition and whether there was any permanent impairment due to this condition. On remand,
the Board instructed the Office to refer appellant to an impartial medical specialist to resolve the
conflict. The facts and the history contained in the prior decision are incorporated by reference.2
On remand, following the Board’s October 26, 2006 decision the Office, by letter dated
January 31, 2007, referred appellant, together with a statement of accepted facts, the case record
and a list of questions to be addressed to Dr. William Nemeth, a Board-certified orthopedic
surgeon, for an impartial medical examination.
Dr. Nemeth submitted a February 20, 2007 medical report, in which he provided a history
of appellant’s problems with her left wrist, hand and upper extremity, medical treatment and
complaints. He reviewed appellant’s medical records and reported his findings on physical
examination. A physical examination revealed no left upper extremity swelling and good upper
extremity motor strength bilaterally. Dr. Nemeth noted that a neurological examination revealed
“reflexes in the biceps, brachioradialis and triceps are hypoactive, but equal on both sides.” He
concluded that appellant had no active left upper extremity reflex sympathetic dystrophy. With
respect to appellant’s upper extremity range of motion, Dr. Nemeth reported 91 degrees of wrist
dorsal flexion, 68 degrees wrist palmar flexion, 18 degrees wrist radial deviation and 24 degrees
wrist ulnar deviation. Based upon an extrapolation using Figure 15-313 he concluded that
appellant had a five percent impairment of the left upper extremity. Dr. Nemeth stated that an
extrapolation was used “because appellant’s range of motion in all of her joints is significantly
greater than normal as she shows hyperelasticity or hypermobility of joints.” In reaching his
impairment determination, Dr. Nemeth concluded that appellant had two percent impairment for
18 degrees of radial deviation and three percent impairment for 24 degrees of ulnar deviation
which resulted in a total of a five percent impairment for the left upper extremity.
On March 26, 2007 an Office medical adviser reviewed Dr. Nemeth’s February 20, 2007
report. She stated that the range of motion findings reported by Dr. Nemeth were based upon
“extrapolating loss of motion figures as compared to the opposite side” which explained “the
difference between Dr. Nemeth’s figure ([five][percent]) and mine.” Using Figures 16-28 at
page 467 and Figure 16-31 at page 469, the Office medical adviser concluded that appellant had
a 0 percent impairment for 91 degrees wrist extension, 0 percent impairment for 68 degrees wrist
flexion, 0 degrees impairment for 18 degrees radial deviation and a one percent impairment for
2

On February 9, 1995 appellant, a 41-year-old office automation secretary, filed an occupational disease claim
alleging that on February 7, 1995 she first realized her left arm condition was due to her employment duties. The
Office accepted the claim for left wrist tendinitis.
3

This appears to be a typographical error as there is no Figure 15-31in Chapter 15 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A, Guides). The Board notes Figure 16-31,
page 469 appears to be what Dr. Nemeth used. Figure 16-31 is entitled “Pie Chart of Upper Extremity Motion
Impairments Due to Abnormal Radial and Ulnar Deviations of Wrist Joint.”

2

24 degrees radial deviation, resulting in a total one percent impairment of the left upper
extremity.
By decision dated March 29, 2007, the Office denied an additional schedule award. It
found that appellant had already received a schedule award totaling five percent for the left upper
extremity. As Dr. Nemeth’s February 20, 2007 report supported no more than a one percent
impairment in the left upper extremity, there was no basis for the payment of additional
compensation for more than a five percent impairment, for which she already received a
schedule award. The Office accorded special weight to Dr. Nemeth’s February 20, 2007 medical
report.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act4
has the burden of establishing the essential elements of his claim, including that she sustained an
injury in the performance of duty as alleged and that an employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.5
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 regulation as the
appropriate standard for evaluating schedule losses.8
Section 8123(a) of the Act provides in pertinent part: If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.9 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.10

4

5 U.S.C. §§ 8101-8193.

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.; see Billy B. Scoles, 57 ECAB ___ (Docket No. 05-1696, issued December 7, 2005).

9

5 U.S.C. § 8123(a).

10

Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

3

ANALYSIS
To resolve the conflict in the medical opinion evidence found by the Board, in the
October 26, 2006 decision regarding whether appellant had reflex sympathetic dystrophy to her
upper left extremity condition and whether there was any permanent impairment due to this
condition, the Office referred appellant to Dr. Nemeth, selected as the impartial medical
specialist. Dr. Nemeth concluded that appellant had no active left upper extremity reflex
sympathetic dystrophy. However, he provided no analysis to show how he reached such a
determination. While his statement regarding appellant’s nonactive reflex sympathy dystrophy
was clear and unequivocal, Dr. Nemeth failed to offer any medical reasoning in support of his
conclusion.11 The certainty with which Dr. Nemeth expressed his opinion cannot overcome the
lack of medical rationale.12 As he did not sufficiently explain his finding that appellant did not
have active reflex sympathy dystrophy, Dr. Nemeth’s opinion is insufficient to constitute the
weight of the evidence on this issue and the record contains an unresolved conflict in medical
opinion of whether appellant has reflex sympathy dystrophy.
The Board finds that Dr. Nemeth’s brief conclusory statement is insufficient to resolve
the conflict in medical opinion. The case will be remanded to the Office to obtain a further
explanation from the impartial medical examiner. If Dr. Nemeth is unable to provide a
rationalized explanation as to why appellant does not have left upper extremity reflex
sympathetic dystrophy and any resulting impairment to her left upper extremity, the Office
should refer appellant to a new impartial medical examiner.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is required.

11

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

12

See Willa M. Frazier, 55 ECAB 379 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2007 is set aside and the case remanded for further
development consistent with the above decision.
Issued December 17, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., 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. 09-525
Issued: September 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 13, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 23, 2008 regarding an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether an overpayment of $4,386.71 was created due to payment of
compensation based on an incorrect pay rate; (2) whether the Office properly denied waiver of
the overpayment; and (3) whether the Office properly required repayment by deducting $200.00
every 28 days from continuing compensation.
FACTUAL HISTORY
The Office accepted that appellant sustained thoracic and lumbosacral sprains, and
muscle spasms, in the performance of duty on April 5, 2007. The reverse of the claim form
(CA-1) indicated that she stopped working on April 5, 2007 and that her annual pay rate was

$46,401.00 ($892.32 per week or $22.30 per hour). Appellant filed a claim for compensation
(Form CA-7) for disability commencing May 21, 2007. The reverse side of the claim form
reported her pay rate as $22.31 per hour as of April 5, 2007. The date appellant stopped work
was reported as April 6, 2007, with an hourly pay rate that is difficult to read; it could be read as
$22.31 or $27.31 per hour.
Commencing May 21, 2007, appellant began receiving compensation for wage loss based
on a weekly pay rate for compensation purposes of $1,092.40 per week, or $27.31 per hour based
on a 40-hour work week. Appellant returned to work at four hours per day on June 14, 2007 and
received compensation for the remaining four hours per day. The light-duty job offer reported
her pay rate as $22.31 per hour. Continuing compensation payments were issued based on a
weekly pay rate for compensation purposes of $1,092.40. In a letter dated December 17, 2007,
the employing establishment indicated that the annual pay rate for appellant’s grade, level and
step and the time of injury was now $47,051.00 (or $22.62 per hour).
A memorandum of telephone call (Form CA-110) indicated that the employing
establishment advised the Office that appellant’s pay rate on the date of injury was $22.31 per
hour. In a worksheet dated September 18, 2008, the Office indicated that the correct pay rate
should have been $22.31 per hour, or $892.40 per week. Using this pay rate for compensation
purposes, appellant should have received $19,573.31 in compensation for the period May 21,
2007 to August 1, 2008. The Office indicated that appellant had received $23,960.02.
By letter dated September 18, 2008, the Office advised appellant that it made a
preliminary determination that an overpayment of $4,386.71 was created from May 21, 2007 to
August 1, 2008 due to an incorrect pay rate. Appellant was advised that she was found not at
fault in creating the overpayment. As to waiver of the overpayment, the Office advised her that
she must complete an OWCP-20 (overpayment recovery questionnaire) and should attach
supporting documents, including income tax returns, bank account statements, bills, cancelled
checks and pay slips.
On October 16, 2008 the Office received a completed OWCP-20 form. By decision
dated October 23, 2008, it finalized its preliminary determination of a $4,786.71 overpayment of
compensation. As to waiver of the overpayment, the Office noted that the September 18, 2008
preliminary determination had advised appellant that under 20 C.F.R. § 10.438 her failure to
submit the requested information within 30 days would result in the denial of waiver. It stated,
“The claimant did not provide any supporting documents to Form OWCP-20. The information
provided was insufficient to justify waiving recovery of the overpayment.” With regard to
repayment, the Office found that $200.00 would be withheld from continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Under 5 U.S.C. § 8101(2), “‘monthly pay’ means 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.…” The

2

monthly pay is deemed one-twelfth of the average annual earnings, as determined under 5 U.S.C.
§ 8114(d), and the weekly pay is one-fifty-second of the average annual earnings.1
ANALYSIS -- ISSUE 1
The appropriate date for determining the pay rate for compensation purposes is April 5,
2007, the date of injury and the date disability began. The probative evidence of record indicates
the pay rate at that time was $22.31 per hour, or $892.40 per week. The initial CA-7 form and
the light-duty job offer reported a pay rate of $22.31 per hour as of April 5, 2007, and the
employing establishment confirmed this amount in a September 18, 2008 telephone call.
On appeal, appellant stated that she was uncertain that she had been paid based on a pay
rate of $27.31 per hour. The record, however, does document that the compensation paid from
May 21, 2007 to August 1, 2008 was based on a pay rate of $27.31 per hour, or $1,092.40 per
week. All of the fiscal documents relating to payment of compensation commencing May 21,
2007 show a pay rate of $1,092.40 per week.
The Board accordingly finds that an overpayment of compensation was created in this
case. From May 21, 2007 to August 1, 2008 appellant was paid compensation based on an
incorrect pay of $1,092.40, instead of the correct pay rate of $892.40 per week. The Office
calculated that appellant was paid $23,960.02, but should have been paid $19,573.31, resulting in
an overpayment of $4,786.71.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act2 provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
Act or would be against equity and good conscience.”3 Since the Office found appellant to be
without fault in the creation of the overpayment, the Office may only recover the overpayment if
recovery would neither defeat the purpose of the Act nor be against equity and good conscience.
The guidelines for determining whether recovery of an overpayment would defeat the purpose of
the Act or would be against equity and good conscience are set forth in sections 10.434 to 10.437
of Title 20 of the Code of Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of the
Act if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary

1

See 5 U.S.C. § 8114(c). Under the Office’s regulations, the “pay rate for compensation purposes” is determined
pursuant to 5 U.S.C. § 8101(2) and 5 U.S.C. § 8114.
2

5 U.S.C. § 8101 et seq.

3

Id. at § 8129(b).

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living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by the Office from data provided by the Bureau of Labor Statistics.4 For waiver
under the “defeat the purpose of the Act” standard, appellant must show that he needs
substantially all of his current income to meet current ordinary and necessary living expenses,
and that his assets do not exceed the resource base.5
ANALYSIS -- ISSUE 2
The Office did not make findings with respect to whether recovery would defeat the
purpose of the Act or would be against equity and good conscience. In this case the Office relies
on 20 C.F.R. § 10.438, which provides that failure to submit the “requested information” shall
result in denial of waiver. But the instant case is not a situation where the claimant did not
submit any financial information, or an incomplete OWCP-20.6 Appellant submitted a Form
OWCP-20 overpayment recovery questionnaire with information on income and expenses.
Office procedures note that documentation is requested in support of statements made on the
OWCP-20, and “if adequate documentation is not supplied, the [claims examiner] should
conference the case and request that additional documentation be submitted (or the Hearing
Representative should request additional documentation at the hearing).”7 If the Office felt there
was specific documentation needed with regard to the OWCP-20 statements, then it should have
advised appellant and provided an opportunity to submit the requested documentation. The
broad request for financial documents in the preliminary overpayment determination is not
sufficient notice to a claimant of the specific documents the Office may require based on a
review of the submitted overpayment recovery questionnaire.8
The Board finds the Office did not properly consider the issue of waiver. The case will
be remanded to the Office for proper adjudication of the waiver issue in accord with its
procedures. After such further development as the Office deems necessary, it should issue an
appropriate decision. In view of the Board’s finding on the waiver issue, it will not address the
repayment issue at this time.
CONCLUSION
The Board finds that the evidence establishes an overpayment of $4,786.71. The case is
remanded to the Office for proper consideration of the waiver issue.
4

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
5
6

See Robert E. Wenholz, 38 ECAB 311 (1986).

See T.S., 60 ECAB
(incomplete OWCP-20).

(Docket No. 08-1604, issued March 13, 2009); Madelyn Y. Grant, 57 ECAB 533 (2006)

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200(6)(a) (May 2004).
8

The Office may choose, for example, to consider the waiver issue solely based on the information provided in
the OWCP-20.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 23, 2008 is affirmed with respect to fact and amount of
overpayment, and set aside and remanded on the issue of waiver.
Issued: September 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
St. Paul, MN, Employer
__________________________________________

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

Docket No. 16-0747
Issued: July 7, 2016

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a February 9, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision, dated March 20, 2015, and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2015 appellant, then a 65-year-old custodian, filed a traumatic injury
claim (Form CA-1) alleging that on December 31, 2014 she sustained a right knee and lower
extremity injury while walking and sweeping steps. She stopped work on January 13, 2015.
In a February 4, 2015 letter, the employing establishment controverted the claim,
asserting that appellant did not report the injury or file a claim until January 29, 2015, nearly a
month after the date of the injury. Also, appellant continued working full duty until
January 13, 2015 and the employing establishment could not determine the date appellant first
received medical treatment.
In an undated attending physician’s report (Form CA-20) date stamped as received by the
employing establishment on January 27, 2015, Dr. Gary S. Lewis, an attending Board-certified
family practitioner, diagnosed internal derangement of the right knee with a lateral meniscal tear.
He opined that appellant sustained the injury at work on December 30, 2014 when she “twisted
knee by going down stairs at work.”
Appellant provided a “USPS/Alignetworks” referral form to Dr. Lewis. The form notes a
December 30, 2014 knee injury. The employing establishment date stamped the form as
received on January 30, 2015.
In a February 13, 2015 letter, OWCP advised appellant to submit factual evidence
corroborating the claimed incident, and medical evidence diagnosing a right foot injury caused
by that incident. It afforded her 30 days to submit such evidence.
Appellant provided February 19, 2015 work restrictions from Dr. Lewis, and a physical
therapy prescription. In a February 24, 2015 note, Dr. Lewis cleared appellant to return to
restricted duty on February 27, 2015.
By decision dated March 20, 2015, OWCP denied the claim as fact of injury had not been
established. It found that the factual record did not support that the December 31, 2014 incident
occurred at the time, place, and in the manner alleged. OWCP mailed the decision to appellant at
her address of record.
In a letter dated December 21, 2015, postmarked December 28, 2015, and received on
January 5, 2016 appellant requested reconsideration. She contended that she had not received
the March 20, 2015 decision. Appellant submitted a January 16, 2015 employing establishment
letter authorizing emergency medical treatment by Dr. Lewis. The employing establishment
noted that, due to the exigency of the visit, it had not yet completed a Form CA-16 authorization
for medical treatment. Appellant also provided a January 17, 2015 employing establishment
accident report, and physical therapy notes dated from February 13 to May 14, 2015.
By decision dated February 9, 2016, OWCP denied reconsideration, finding that
appellant’s letter and accompanying documents did not constitute new, relevant evidence. It
found that the physical therapy notes were irrelevant to the fact of injury issue.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.3 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.4
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.5 He or she need only
submit relevant, pertinent evidence not previously considered by OWCP.6 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.7
ANALYSIS
Appellant claimed that she sustained a right knee injury in the performance of duty on
December 31, 2014. OWCP denied the claim by decision dated March 20, 2015, finding that
fact of injury had not been established. Appellant requested reconsideration by letter dated
December 21, 2015, postmarked December 28, 2015, and received January 5, 2016. She
provided a January 16, 2015 employing establishment authorization for emergency medical
treatment by Dr. Lewis, an attending Board-certified family practitioner, and a January 17, 2015
employing establishment incident report. Appellant also submitted a series of physical therapy
notes. OWCP denied reconsideration by decision dated February 9, 2016, finding that the letter
and accompanying documents did not constitute new, relevant evidence, and the physical therapy
notes were irrelevant to the fact of injury issue.
The Board finds, however, that OWCP improperly denied reconsideration, as the
January 17, 2016 employing establishment accident report constituted new evidence directly
relevant to the fact of injury issue. The employing establishment controverted the claim,
contending that appellant did not report an injury until January 29, 2015, and that it could not
determine when appellant first received medical treatment. The case will be remanded to OWCP
for reconsideration of the merits of the claim, including all evidence appellant submitted
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

5

Helen E. Tschantz, 39 ECAB 1382 (1988).

6

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

7

Annette Louise, 54 ECAB 783 (2003).

3

accompanying her request for reconsideration. Following this and any other development
deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for further merit
review of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded to OWCP for additional
development consistent with this decision and order.
Issued: July 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-2003
Issued: June 1, 2011

Case Submitted on the Record

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

JURISDICTION
On August 3, 2010 appellant, through her attorney, filed a timely appeal from the Office
of Workers’ Compensation Programs’ decision dated June 29, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a consequential left ankle condition causally
related to her accepted January 26, 2007 right ankle injury.
FACTUAL HISTORY
This case has previously been before the Board. On August 10, 2007 appellant, then a
62-year-old baggage screener, filed an occupational disease claim under File No. xxxxxx713,
1

5 U.S.C. § 8101 et seq.

alleging a left ankle condition causally related to factors of her employment. She previously
sustained a right ankle sprain at work on January 26, 2007. Appellant asserted that she
developed a left ankle condition because the ligaments and tendons in her right ankle had not
fully healed, causing her to favor her right foot. She indicated that she worked light duty.
In an August 22, 2007 report, Dr. Rebecca Frederick, an osteopath, stated that she treated
appellant on February 1, 2007 for a right ankle injury which occurred at work on
January 26, 2007. She stated that appellant’s right ankle was swollen and she had sharp pains
over the next several days. On examination, Dr. Frederick noted that appellant had flat feet
bilaterally. She recommended that appellant consult a podiatrist to get measured for orthotics in
order to avoid future ankle injuries. Dr. Frederick gave appellant an air cast and prescribed work
restrictions. She examined appellant on February 27, 2007, at which time she found a normal
range of motion and full strength in the right ankle. Appellant informed Dr. Frederick that she
no longer needed to wear the air cast and wanted to return to full duty.
Appellant returned to Dr. Frederick on August 9, 2007 for treatment of left ankle pain.
She attributed her left ankle pain to favoring her right ankle since the January 26, 2007 work
injury and using her left ankle to bear more of her weight. Dr. Frederick stated that on
examination appellant’s left ankle was tender to palpation, anterior to the left medial malleolus.
She stated that x-ray testing showed some arthritis in the heel, but no fracture. Dr. Frederick
diagnosed a left ankle strain, secondary to favoring the right ankle, which had been previously
injured. She provided work restrictions and recommended that appellant consult a podiatrist.
By decision dated May 23, 2008, the Office denied the claim, finding that she failed to
submit sufficient medical evidence to establish that her claimed left ankle condition was
sustained in the performance of duty.
By letter dated May 30, 2008 appellant, through her attorney, requested an oral hearing,
which was held on September 22, 2008. She testified at the hearing that she had injured her right
ankle on January 27, 2007 and subsequently returned to work. Appellant began to experience
pain in her left ankle because she favored her injured right ankle.
By decision dated December 4, 2008, an Office hearing representative affirmed the
May 23, 2008 decision. The Office hearing representative found that appellant did not provide
sufficient medical evidence to show a causal relationship between her January 2007 right ankle
injury and her claimed left ankle condition. The Office hearing representative noted that
appellant could pursue a consequential injury claim under File No. xxxxxx978.
In an order dated September 2, 2009,2 the Board set aside the December 4, 2008 Office
decision. The Board noted that factual and medical evidence pertaining to appellant’s accepted
right ankle injury was not of record. The record on appeal did not contain any medical reports
which discussed appellant’s medical condition from January through August 2007. The Board
remanded the case for consolidation of the case records. The Board instructed the Office to
prepare a statement of accepted facts and develop whether appellant sustained a left ankle
condition as a consequence of her accepted January 26, 2007 right ankle injury.
2

Docket No. 09-615 (issued September 2, 2009).

2

On remand, the Office referred appellant, the case record and a statement of accepted
facts, to Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, for a second opinion
examination. In a January 4, 2010 report, Dr. Ghanma stated findings on examination, reviewed
the medical history and the statement of accepted facts. He found that appellant did not sustain a
left ankle injury in the performance of her duties as a transportation security screener.
Dr. Ghanma obtained a history that appellant also slammed her left ankle on the floor at the time
of the right ankle injury. He noted that appellant’s left ankle worsened over time and she
complained that she was putting most of her weight on her left foot. Dr. Ghanma stated that in
August 2007 appellant noticed a bump on her left ankle which was quite painful. The bump
dissipated after she wore a protective boot for eight months. Appellant stated that she underwent
a magnetic resonance imaging (MRI) scan and was advised by her physician that she had a split
tendon, which had since resolved. Dr. Ghanma advised that she returned to light duty for about
eight months, then returned to full duty in July 2008.
Dr. Ghanma stated that appellant underwent an x-ray of her left ankle on August 9, 2007
which showed mild generalized soft tissue swelling but was essentially normal. An October 26,
2007 left ankle MRI scan report thickening and signal abnormality in the posterior tibial tendon,
with a longitudinal split in the tendon at the distal tibial level that extended below the medial
malleolus. The MRI scan also showed evidence of a mild chronic sprain and fibrotic thickening
of the anterior talofibular ligament with no acute findings. Dr. Ghanma stated that there was also
evidence of a plantar heel spur without evidence of plantar fasciitis, minimal nonspecific marrow
edema/contusion present within the distal body of the calcaneus, a mild chronic sprain and
fibrosis of the anterior talofibular ligament of the left ankle. He found that these mild symptoms
had long since resolved and were not attributable to the January 26, 2007 right ankle injury.
Dr. Ghanma advised that there was insufficient evidence to support that employment factors
caused, aggravated, precipitated or accelerated appellant’s left ankle injury. He asserted that a
minor right ankle strain such as that sustained by appellant would not be sufficient to alter her
gait to the point where she would develop a bump in her left ankle within six months.
Dr. Ghanma stated that her right ankle injury did not cause the left ankle condition.
By decision dated January 25, 2010, the Office denied the claim, finding that appellant
failed to establish that her left ankle injury was a consequence of her January 26, 2007 right
ankle injury. It found that Dr. Ghanma’s referral opinion represented the weight of the medical
evidence.
On January 27, 2010 appellant requested a hearing before an Office hearing
representative. The hearing was held on April 19, 2010 but no new evidence was presented.
By decision dated June 29, 2010, the Office hearing representative affirmed the
January 25, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
3

5 U.S.C. §§ 8101-8193.

3

United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged, and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated upon a traumatic
injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.7 The subsequent injury is compensable if it is the direct and
natural result of the compensable primary injury. With respect to consequential injuries, the
Board has noted that where an injury is sustained as a consequence of an impairment residual to
an employment injury, the new or second injury, even if nonemployment related, is deemed
because of the chain of causation to arise out of and in the course of employment and is
compensable.8
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that she sustained a left ankle condition as a consequence of her accepted January 26, 2007 right
4

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

5

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

6

Id.

7

See Debra L. Dillworth, 57 ECAB 516 (2006).

8

L.S., Docket No. 08-1270 (issued July 2009).

4

ankle injury. For this reason, appellant has not met her burden of proof to establish her claim
that this condition was sustained in the performance of duty.
The only medical report submitted in support of appellant’s claim for a consequential left
ankle condition was the August 22, 2009 report of Dr. Frederick, who diagnosed a left ankle
strain, secondary to favoring the right ankle, which had been previously injured. Dr. Frederick
initially treated appellant on February 1, 2007 for her January 26, 2007 right ankle injury. This
injury eventually resolved but appellant returned to Dr. Frederick on August 9, 2007 because she
experienced left ankle pain. Appellant related that she favored her right ankle since the
January 26, 2007 work injury, using her left ankle to bear more of her weight. Dr. Frederick
noted some tenderness on examination and stated that x-ray testing showed some arthritis in the
left heel. This report did not contain a probative medical opinion addressing how appellant’s left
ankle condition arose as a consequence of the right ankle injury. The weight of medical opinion
is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.9
The report of Dr. Frederick noted appellant’s belief and attribution of her left ankle symptoms to
the prior right ankle injury. Dr. Frederick did not explain why the nature and severity of
appellant’s right ankle injury, which was a minor injury causing little medical expense and time
off from work, caused a left ankle injury some six months later. Her opinion is of limited
probative value because it is conclusory and does not provide adequate medical rationale to
establish that appellant’s claimed left ankle condition arose from the previous right ankle
injury.10
The Office referred appellant to Dr. Ghanma. In a January 4, 2010 report, Dr. Ghanma
found that appellant’s right ankle injury did not cause, aggravate, precipitate or accelerate the left
ankle condition. He noted that August 2007 x-rays of her left ankle were essentially normal and
that an October 2007 MRI scan showed abnormalities in the left posterior tibial tendon, a mild
chronic sprain, thickening of the anterior talofibular ligament, and a plantar heel spur.
Dr. Ghanma stated, however, that these mild symptoms had long resolved and were not
attributable to the January 26, 2007 right ankle injury. He advised that appellant sustained a
minor right ankle strain that was not sufficient to alter her gait to the point where she would
develop a bump in her left ankle within six months. Dr. Ghanma found that there was
insufficient evidence to support that employment factors caused, aggravated, precipitated or
accelerated her left ankle injury. His opinion that appellant’s claimed left ankle condition did not
arise as a consequence of her January 26, 2007 right ankle injury is thorough, probative, well
rationalized, and based on his examination of appellant and her medical history. The Office
properly found that Dr. Ghanma’s referral opinion represented the weight of the medical
evidence.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
9

See Anna C. Leanza, 48 ECAB 115 (1996).

10

William C. Thomas, 45 ECAB 591 (1994).

5

sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and she failed to submit such evidence.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that she sustained a left ankle condition as a consequence of her accepted right ankle
condition.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a consequential left ankle condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2011
Washington, DC

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

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

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

11

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.V., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY Denver, CO, Employer
__________________________________________

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

Docket No. 17-0619
Issued: February 26, 2018

Case Submitted on the Record

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

JURISDICTION
On January 25, 2017 appellant filed a timely appeal from a November 7, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than nine percent permanent impairment of the
right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On September 21, 2011 appellant, then a 59-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he had developed carpal and cubital tunnel syndromes
as a result of his federal employment. He indicated on the claim form that his job patching mail
1

5 U.S.C. § 8101 et seq.

involved constant grasping and manipulating torn mail. In a report dated August 25, 2011,
Dr. Carleton Clinkscales, a Board-certified orthopedic surgeon, diagnosed right carpal tunnel and
right cubital tunnel syndromes. He indicated right upper extremity surgery was scheduled.
OWCP accepted the claim on December 30, 2011 for right carpal tunnel syndrome and
right ulnar nerve lesion.2 On July 9, 2012 appellant underwent right carpal tunnel release, and
right ulnar nerve decompression, performed by Dr. Clinkscales. He underwent a right wrist
extensor tenosynovectomy and right distal radius bone graft on November 19, 2012. Appellant
received wage-loss compensation and returned to work at five hours per day on
February 4, 2013.
On April 11, 2013 appellant filed a schedule award claim (Form CA-7). In a report dated
March 27, 2013, Dr. Bennett Machanic, a Board-certified neurologist, provided results on
examination. He opined that appellant had 18 percent permanent impairment under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides)3 due to loss of wrist range of motion.
OWCP referred the case to an OWCP medical adviser for review. In a report dated
April 25, 2013, the medical adviser opined that appellant had one percent right upper extremity
permanent impairment for carpal tunnel syndrome, and one percent for cubital tunnel syndrome.
As to any additional permanent impairment, the medical adviser asserted that Dr. Machanic had
not provided adequate range of motion results and additional information was required.
In a report dated May 8, 2013, Dr. Machanic provided results on examination. For right
wrist range of motion, he opined that appellant had 12 percent right upper extremity permanent
impairment. Dr. Machanic also found an additional two percent for carpal tunnel and cubital
tunnel syndromes.
An OWCP medical adviser reviewed the medical evidence and in a June 5, 2013 report
opined that appellant had four percent right upper extremity permanent impairment. He again
found one percent permanent impairment for carpal tunnel syndrome, and one percent for cubital
tunnel syndrome. For a right wrist ganglion/bone cyst, the medical adviser opined the diagnosisbased impairment (DBI) was the preferred method. He found two percent right upper extremity
permanent impairment based on the diagnosis of right wrist synovitis.
By decision dated June 10, 2013, OWCP issued a schedule award for four percent right
upper extremity permanent impairment. The period of the award ran for 12.48 weeks from
May 8, 2013.
On December 1, 2015 appellant submitted a September 16, 2015 report from
Dr. Christopher Ryan, a Board-certified physiatrist. Dr. Ryan opined that appellant had 28
percent right upper extremity permanent impairment. He found that appellant had 14 percent
right upper extremity permanent impairment based on loss of wrist range of motion. Dr. Ryan
2

On August 16, 2012 OWCP indicated that it had accepted a right ganglion cyst.

3

A.M.A., Guides (6th ed. 2009).

2

also found eight percent permanent impairment for the median nerve, and eight percent for the
ulnar nerve, under Table 15-23 of the A.M.A., Guides. The permanent impairments were
combined for 28 percent right upper extremity permanent impairment.
The case was referred to another OWCP medical adviser for review. In a report dated
December 18, 2015, an OWCP medical adviser opined that the report from Dr. Ryan was
“problematic for several reasons.” He wrote that Dr. Clinkscales had indicated an excellent
result following surgeries, and the subsequent decline in function was hard to explain. The
medical adviser also indicated the ulnar nerve entrapment impairment should be reduced as a
second entrapped nerve under Table 15-23.
OWCP referred appellant for a second opinion examination by Dr. Wallace Larson, a
Board-certified orthopedic surgeon. Dr. Larson was asked to provide a permanent impairment
rating under the A.M.A., Guides.
In a report dated July 12, 2016, Dr. Larson provided a history and results on examination.
He opined that range of motion impairment would not be calculated, as this was from
degenerative arthritis that was not employment related. Dr. Larson found that appellant had
seven percent right upper extremity permanent impairment under Table 15-23. He indicated
there was five percent permanent impairment for cubital tunnel syndrome, and four percent for
carpal tunnel syndrome. The four percent permanent impairment was reduced by one half,
resulting in seven percent right upper extremity permanent impairment.
The evidence was again referred to an OWCP medical adviser for review. In a report
dated October 18, 2016, the medical adviser opined that appellant had seven percent right upper
extremity permanent impairment under Table 15-23. According to him, the cubital nerve
entrapment was five percent right upper extremity permanent impairment, and the median nerve
entrapment impairment was two percent. The medical adviser combined the seven percent with
two percent for other wrist conditions from the prior schedule award, for nine percent permanent
impairment. He opined that appellant was entitled to an additional five percent, after deducting
the prior schedule award of four percent.
By decision dated November 7, 2016, OWCP issued a schedule award for an additional
five percent permanent impairment to the right upper extremity. The award ran for 15.60 weeks
from July 12, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

3

5 U.S.C.

the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
ANALYSIS
The issue on appeal is whether appellant has more than nine percent right upper extremity
permanent impairment, for which he previously received a schedule award. The accepted
conditions include carpal tunnel syndrome, as well as right ulnar nerve lesion and right ganglion
cyst. In the original schedule award decision dated June 10, 2013, OWCP’s medical adviser
opined that the DBI method was appropriate for the right ulnar nerve and ganglion cyst
conditions, rather than the ROM approach. Appellant submitted a September 16, 2015 report
from Dr. Ryan, who opined that appellant had 28 percent permanent impairment to the right
upper extremity. The A.M.A., Guides notes that, when impairment results strictly from a
peripheral nerve lesion, no other rating method is applied to this section (15.4 Peripheral Nerve
Impairments) to avoid duplication or unwarranted increases in the impairment estimation.9
Dr. Ryan referred to the DBI method based on Table 15-3, but found that the ROM approach for
loss of wrist range of motion was proper.
With respect to the remainder of the upper extremity, the Board finds the case is not in
posture for decision.

6

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

9
A.M.A., Guides 423 (note that peripheral nerve impairment may be combined with DBI at the upper extremity
as long as the DBI does not encompass the nerve impairment. Id. at 419

4

To properly evaluate the medical evidence with respect to conditions other than carpal
tunnel syndrome, OWCP must resolve the issues regarding the ROM and DBI methods of
evaluating permanent impairment.10 The Board has found that OWCP inconsistently applied
Chapter 15 of the sixth edition of the A.M.A., Guides when granting schedule awards for upper
extremity claims. No consistent interpretation had been followed regarding the proper use of the
DBI or the ROM methodology when assessing the extent of permanent impairment for schedule
award purposes.11 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.12 In T.H., the Board concluded that OWCP
physicians were at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and ROM
methodologies interchangeably without any consistent basis. Furthermore, the Board observed
that physicians interchangeably cited to language in the first printing or the second printing when
justifying use of either the ROM or DBI methodology. Because OWCP’s own physicians were
inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.13
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the November 7, 2016 decision with respect
to the upper extremity not including the condition of carpal tunnel syndrome. Utilizing a
consistent method for calculating permanent impairment14 for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds the case is not in posture for decision.

10

Dr. Larson referred to loss of wrist motion but opined that wrist arthritis was not employment related, without
further explanation.
11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Supra note 9.

14

See FECA Bulletin No. 17-06 (May 8, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: February 26, 2018
Washington, DC

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

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

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

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