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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0174
Issued: May 8, 2017

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 November 3, 2016 appellant, through counsel, filed a timely appeal from a
September 13, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 13 percent permanent impairment of the left
lower extremity, for which she previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2008 appellant, then a 41-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 23, 2008 she injured her left knee when she slipped on a step
in the performance of duty. OWCP accepted the claim on December 23, 2008 for buttock
contusion, left knee sprain/strain, and left knee medial meniscus tear. Appellant received wageloss compensation from February 10 to March 14, 2009.
The record indicates that on January 25, 2011 appellant underwent a left knee partial
medial meniscectomy, performed by Dr. Kevin Paley, an orthopedic surgeon. She filed a claim
for a recurrence of disability (Form CA-2a) and began receiving wage-loss compensation as of
January 25, 2011. On July 1, 2013 appellant accepted a job offer from the employing
establishment for a modified letter carrier position.
Appellant filed a claim for a schedule award (Form CA-7) on March 11, 2014. By
decision dated May 5, 2014, OWCP found appellant was not entitled to a schedule award. It
found there was no medical evidence of record supporting a left knee permanent impairment.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on May 8, 2014. The hearing was held on December 2, 2014.
In a report dated December 8, 2014, Dr. Martin Fritzhand, a Board-certified urologist,
provided a history and results on examination. Flexion of the left knee was 90 degrees, and
flexion contracture 20 degrees. Dr. Fritzhand opined that appellant had reached maximum
medical improvement (MMI) in January 2014. As to permanent impairment of the left lower
extremity, he applied Table 16-23 for knee range of motion. Dr. Fritzhand opined that there was
no category on the diagnosis-based grid to account for appellant’s permanent impairment. Based
on Table 16-23, he found 10 percent permanent impairment for loss of flexion and 35 percent for
loss of flexion contracture, totaling 45 percent left lower extremity permanent impairment.
By decision dated February 18, 2015, the hearing representative set aside OWCP’s
May 5, 2014 decision and remanded the case to OWCP. She found the evidence was sufficient
to warrant referral of the evidence to an OWCP medical adviser.
In a report dated April 8, 2015, Dr. Morley Slutsky, an OWCP medical adviser Boardcertified in occupational medicine, opined that appellant had five percent left lower extremity
permanent impairment. He found that Table 16-3, the knee regional grid, should be applied,
with a diagnosis of left knee patellofemoral arthritis.
OWCP thereafter found that a conflict in the medical evidence was created, and
Dr. James Davidson, a Board-certified orthopedic surgeon, was selected as a referee physician.
In a report dated June 27, 2015, Dr. Davidson found that appellant had 13 percent permanent
impairment under Table 16-3. He indicated that the diagnosis was left knee strain, with
moderate loss of range of motion.
Another OWCP medical adviser, Dr. Daniel Zimmerman, an internist, reviewed the
evidence and provided a July 26, 2015 report. He opined that appellant had 12 percent left lower

2

extremity permanent impairment under Table 16-3 of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).
On July 28, 2015 OWCP expanded acceptance of the claim to include aggravation of left
knee arthritis. It also requested that Dr. Davidson provide clarification of his opinion regarding
permanent impairment. In an August 26, 2015 note, OWCP indicated that his office had
informed OWCP that he would not provide an additional report.
OWCP then selected Dr. Bernard Bacevich, a Board-certified orthopedic surgeon, as a
referee physician. In a report dated October 1, 2015, Dr. Bacevich provided a history and results
of a September 30, 2015 examination. He reported 115 degrees of flexion, with 23 degrees
flexion contracture in the left knee. Dr. Bacevich indicated that he would use the diagnosis of
sprain/strain under Table 16-3. He wrote, “Since [appellant’s] primary problem has been loss of
motion, this would be a more appropriate category” than using a meniscal injury diagnosis under
Table 16-3. Dr. Bacevich opined that appellant had moderate motion deficits and/or significant
weakness, with 10 percent (grade C) default impairment. He found that appellant had 13 percent
permanent impairment based on +2 adjustment to grade E, based on functional history, physical
examination, and clinical studies.
In a report dated December 3, 2015, another OWCP medical adviser, Dr. Michael M.
Katz, opined that Dr. Bacevich correctly applied the A.M.A., Guides. He reported the date of
MMI was September 30, 2015.
By decision dated December 17, 2015, OWCP issued a schedule award for 13 percent left
lower extremity permanent impairment. The period of the award was 37.44 weeks from
January 8, 2014.
On December 28, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative. On April 13, 2016 appellant submitted a report dated March 18, 2016
from Dr. Fritzhand. He opined that loss of range of motion was the appropriate methodology to
determine permanent impairment in this case. A hearing was held on August 3, 2016.
By decision dated September 13, 2016, the hearing representative found appellant did not
establish more than 13 percent left lower extremity permanent impairment for which she
previously received a schedule award. The hearing representative found the weight of the
evidence was represented by Dr. Bacevich.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

3

determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
With respect to a knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3.6 The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for functional history, physical examination, and clinical studies. Table
16-23 of the A.M.A., Guides provides a method of evaluating leg permanent impairment based
on knee motion impairments for loss of flexion or loss of flexion contracture.7
ANALYSIS
OWCP had found a conflict in the evidence under 5 U.S.C. § 8123(a) with regard to
appellant’s left knee permanent impairment and selected a referee physician.8 Dr. Fritzhand had
opined that appellant had 45 percent permanent impairment under Table 16-23, for loss of left
knee range of motion. An OWCP medical adviser, Dr. Slutsky, found the impairment was five
percent under Table 16-3, the diagnosis-based regional grid for the knee. The initial physician
selected as a referee, Dr. Davidson, provided a June 27, 2015 report. When asked to provide
clarification, Dr. Davidson declined, and OWCP then selected Dr. Bacevich.9
The October 1, 2015 report from Dr. Bacevich opined that appellant had 13 percent
permanent impairment under the diagnosis-based regional grid, Table 16-3, but there was an
issue that he failed to address prior to the application of Table 16-3. The A.M.A., Guides
indicate that the diagnosis-based method is the primary method of lower extremity permanent
impairment evaluation.10 This does not mean, however, that the range of motion method under

4

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

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Award, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
6

A.M.A., Guides 509, Table 16-3.

7

Id. at 549, Table 16-23.

8

5 U.S.C. § 8123(a) provides that when there is a disagreement between the physician making the examination
for the United States and the physician of the employee, a third physician shall be appointed to make an examination
to resolve the conflict.
9

At the August 3, 2016 hearing, counsel indicated that he had not seen evidence regarding the selection of
Dr. Bacevich. The record contains a ME023 appointment notification and a bypass history, in accord with OWCP
procedures. Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5 (May 2013).
10

Supra note 6 at 497.

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Table 16-23 is precluded,11 nor has the Board held that using Table 16-23 to evaluate a lower
extremity permanent impairment is without probative value.12
Dr. Bacevich did not address the issue of whether a range of motion evaluation under
Table 16-23 would be appropriate. He applied Table 16-3, and referred only to the use of the
knee strain diagnosis under that table. It is particularly important to address the issue of whether
Table 16-23 would be applicable in this case, as (1) Dr. Fritzhand used such an approach, and
(2) Dr. Bacevich himself indicated that appellant’s “primary problem has been loss of motion.”
Dr. Bacevich’s examination results indicated a flexion contracture of 23 degrees, which would
be 35 percent permanent impairment of the lower extremity under Table 16-23.13
The case will be remanded to OWCP to secure a clarifying report from the referee
physician.14 Dr. Bacevich should be asked to explain whether application of Table 16-23 would
be appropriate in this case under the A.M.A., Guides to properly determine the left lower
extremity permanent impairment.
The Board also notes that the December 17, 2015 schedule award commenced on
January 8, 2014. The period covered by a schedule award commences on the date that the
claimant reaches MMI from the residuals of the injury. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case.15 Dr. Bacevich examined
appellant on September 30, 2015, and OWCP’s medical adviser, Dr. Katz, had used this date as
the MMI date. On return of the case record OWCP should clarify the date of MMI in this case
and explain its findings. After such further development as is deemed necessary, OWCP should
issue a de novo decision.
CONCLUSION
The Board finds the case is not in posture for decision.

11

The A.M.A. Guides notes that in some cases range of motion will serve as an alternate approach. Supra note 6
at 500. When regional grids refer to the range of motion section, or no diagnosis-based approach is applicable,
range of motion may be used as a stand-alone method.
12

When an attending physician has provided a probative medical opinion using Table 16-23, the Board has
indicated the evidence is sufficient to require further development. See P.W., Docket No. 16-0684 (issued
October 3, 2016); J.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued
January 8, 2016).
13

Supra note 6 at 549.

14

A referee physician must resolve the conflict in the medical evidence, not an OWCP medical adviser or other
physician. Richard R. Lemay, 56 ECAB 341 (2005).
15

L.H., 58 ECAB 561 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 8, 2017
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0604
Issued: October 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On January 29, 2018 appellant, through counsel, filed a timely appeal from a December 21,
2017 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 18-0604.
On January 27, 2016 appellant, then a 37-year-old structural firefighter, filed a traumatic
injury claim (Form CA-1) alleging that on January 26, 2016 he sustained a left knee injury when
he slipped and fell on snow and ice exiting his vehicle while in the performance of duty. OWCP
1

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

The Board notes that, following the December 21, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

accepted the claim for left knee tear of medial meniscus, left knee sprain of medial collateral
ligament, and contusion of left lower leg. Appellant stopped work on the date of injury and
received wage-loss compensation.3 On May 3, 2016 he underwent an authorized left knee
arthroscopy, partial medial meniscectomy, and medial compartment chondroplasty. Appellant
returned to full-time sedentary work with restrictions on June 13, 2016.
On July 22, 2016 appellant filed a claim for wage-loss compensation (Form CA-7),
commencing July 7, 2016, and on the same date he also filed a notice of recurrence (Form CA-2a),
alleging that he sustained a recurrence of disability commencing July 7, 2016 due to his accepted
January 23, 2016 employment injury. He indicated that his left knee pain and symptoms were
ongoing and had increased since he returned to light-duty work.
In a development letter dated August 1, 2016, OWCP requested that appellant submit a
physician’s opinion supported by a medical explanation as to how his accepted employment related medical conditions worsened to the extent that he was disabled from work.
On September 8, 2016 appellant described the circumstances surrounding his recurrence,
reporting that his left knee symptoms never resolved and he experienced pain on a daily basis,
often times causing his knee to give out without warning.
On October 17, 2016 OWCP referred appellant to Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon, for a second opinion examination. It did not request that he address
appellant’s objective findings of disability due to his accepted conditions as of July 7, 2016.
In a November 8, 2016 medical report, Dr. Didizian reported that appellant was currently
recovering from his May 3, 2016 left knee surgery, resulting in limited motion and the use of a
cane. He further explained that three weeks of modified-duty work would not cause a recurrence
or necessitate a work stoppage on July 7, 2016.
By decision dated December 29, 2016, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence of record was insufficient to establish disability
commencing July 7, 2016 due to a material change/worsening of his accepted conditions.
On September 22, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 21, 2017, OWCP denied modification of the December 29,
2016 decision finding that the evidence of record was insufficient to establish a recurrence of total
disability commencing July 7, 2016 due to a material change/worsening of his accepted conditions
or a consequential injury.
The Board, having reviewed the case record submitted by OWCP, finds that this case is
not in posture for decision. 4

3

OWCP subsequently determined that the accepted injury occurred on January 23, 2016.

4

See T.Z., Docket No. 17-0679 (issued May 9, 2019).

2

OWCP’s procedures require that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as for a recurrence claimed long after apparent recovery and return to work. 5 Thus, in
cases where a recurrence is claimed within 90 days or less from the return to work, the focus is on
disability rather than causal relationship.6
The Board finds that OWCP should have developed the claim under the proper recurrence
standard, emphasizing disability rather than causal relationship. Pursuant to OWCP’s procedures,
appellant should have been asked to submit a narrative statement from his attending physician
which described the duties appellant could not perform, and the demonstrated objective findings
that formed the basis for renewed disability from work.7 However, the August 1, 2016 OWCP
development letter improperly instructed appellant to provide medical evidence in accordance with
the standard for a recurrence of disability claim after 90 days of his return to duty, which require d
that appellant establish a material worsening of the accepted condition. 8
The Board also finds that OWCP improperly developed the recurrence claim when
providing instructions to the second opinion physician. Dr. Didizian’s November 8, 2016 report
failed to discuss and evaluate appellant’s disability and work capabilities as a result of his accepted
left knee conditions.
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case. 9 As appellant received improper
guidance from OWCP regarding the specific evidence required to establish a recurrence claim
within 90 days of his return to duty and as OWCP did not seek to obtain the relevant medical
information from Dr. Didizian, the Board finds that this case must be remanded for further
development.10 Accordingly, the case will be remanded for OWCP to properly develop appellant’s
recurrence claim. Following this and other further development as deemed necessary, OWCP shall
issue an appropriate merit decision. 11

5

R.W., Docket No. 17-0720 (issued May 21, 2018).

6

K.R., Docket No. 19-0413 (issued August 7, 2019).

7

A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.5 (June 2013).
8

Id. at Chapter 2.1500.6.

9

See K.S., Docket No. 18-0845 (issued October 26, 2018).

10

See S.S., Docket No. 17-0871 (issued November 6, 2017).

11
See generally, B.N., Docket No. 17-0787 (issued July 6, 2018); C.D., Docket No. 17-1074 (issued
August 28, 2017).

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IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: October 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 11-155
Issued: September 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 26, 2010 appellant filed a timely appeal from the September 29, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of its loss of wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of its May 31, 2001 loss of
wage-earning capacity determination.
FACTUAL HISTORY
On July 26, 1999 appellant, a 40-year-old mail clerk, sustained an injury in the
performance of duty when she lifted a heavy tub of mail from a hamper. OWCP accepted her

1

5 U.S.C. § 8101 et seq.

claim for left wrist tendinitis, bilateral shoulder tendinitis and a consequential right shoulder
impingement.
Appellant accepted a series of limited-duty/modified job offers. From August 30, 1999
through January 9, 2001 she accepted nine such offers.
On November 30, 2000 appellant’s doctor, Dr. Jonathan P. Asp, released her to return to
work with permanent restrictions: she could lift up to 10 pounds and occasionally reach above
shoulder level. On January 9, 2001 appellant accepted her ninth limited-duty/modified job offer.
The position was available on November 30, 2000 and would continue until her restrictions
changed or her limited-duty assignment changed. The position was full time, and the duties
included working the 150 manual letter operation, the flats recovery operation “and other duties
as assigned within her restrictions until further notice.” No operation number or labor
distribution code was provided.2
On May 31, 2001 after the employing establishment confirmed that the job was
permanent, OWCP reduced appellant’s compensation for wage loss to zero on the grounds that
her retained earnings as a modified mail clerk fairly and reasonably represented her
wage-earning capacity in the open labor market.
Thereafter, appellant accepted a dozen other limited-duty/modified job offers.
On May 19, 2010 the employing establishment notified appellant that, following the
guidelines established by the National Reassessment Process (NRP), a search in all crafts and on
all tours within her facility and throughout the local commuting area failed to identify any
available necessary tasks within her medical restrictions. It explained that, when no necessary
work is available, an employee can elect to file a claim for compensation from OWCP or use
leave.3
Appellant claimed a recurrence of disability beginning May 19, 2010 due to the
withdrawal of her limited-duty assignment under NRP. In a statement dated September 14,
2010, she argued that OWCP’s May 31, 2001 loss of wage-earning capacity determination was
in error:
“The limited (light) duty job in which I was working when the LWEC was
performed was not a duty assignment and not part of the authorized complement.
It was created solely for me, would not exist except for the Postal Service’s
2

The offer noted: “if performing ‘productive’ work, must transact into a productive #, LDC [labor distribution
code] 68 [limited duty] or OPN [operation] 959 [limited duty] not authorized.”
3

The employing establishment informed appellant that the Postal Service’s NRP was focused on reviewing all
rehabilitation assignments, task by task, to ensure that all assignments contained only necessary tasks: “As our
operations become more automated, both in the plant and in customer services, it is becoming more difficult to
provide productive and necessary tasks to employees within their medical restrictions.... As our staffing needs
continue to change, we are increasingly experiencing situations where sufficient productive or necessary
assignments to accommodate injured employees are more difficult to find. We take our responsibility to all
employees very seriously and will work to ensure they are afforded all rights under FECA.”

2

obligation to provide me with medically suitable employment, and would
disappear as soon as I left it. It was never available for bid or application by any
other employee. Therefore, it was an odd lot or make-shift job as defined by a
number of ECAB decisions, and any LWEC determination based on this
assignment would be in error.”
Appellant added that the limited-duty assignment was created to meet her particular needs and
was not available to other employees. She explained that a “duty assignment” in the Postal
Service is a “funded” or classified position. It has a set of duties and responsibilities regularly
scheduled during specific hours of duty. These individually identified and numbered duty
assignments, she explained, make up the “authorized complement” of any Postal Service
installation. To seek assignment to one of these specific duty assignments, an employee must
submit a written request by either bid or application. Appellant argued that her medically
suitable assignment did not constitute an actual, bona fide, established duty assignment available
to other employees. It consisted, instead, of ad hoc unclassified duties. Appellant cited Board
precedent for the proposition that a make shift job is one designed for an employee’s particular
needs and, therefore, does not constitute an identifiable, regular position of a type readily
available on the general labor market.4
In a decision dated September 29, 2010, OWCP denied appellant’s claim for wage-loss
compensation. It found that she had not met one of the three criteria for modifying the May 31,
2001 loss of wage-earning capacity determination. OWCP reviewed the submitted medical
evidence and addressed appellant’s September 14, 2010 statement as follows: “Your statement
has been reviewed and acknowledged.”
On appeal, appellant repeats the argument she made to OWCP that the assignment upon
which OWCP based its loss of wage-earning capacity determination was odd lot or make shift
and not regularly and continuously available under normal employment conditions, citing
Larson’s treatise on workers’ compensation law. She also points out that the fact that her work
was not considered “necessary” underlined the make shift nature of the work she was
performing:
“It would be inequitable and inconsistent with general principles of injury
compensation if the Postal Service was permitted to offer an employee medically
suitable employment, wait 60 days for the formal LWEC determination of 0%
loss of earning capacity, and then tell the injured employee that the job on which
the LWEC was performed is being withdrawn because the work is no longer
‘necessary.’ Then OWCP denies wage loss compensation based on 0% LWEC,
and the Postal Service has now neatly shed the financial burden of compensation
cost for these employees.”

4

Jack L. Woolever, 29 ECAB 111 (1977) (noting in part that OWCP did not ascertain whether the assignment in
question was make shift work designed for the claimant’s particular needs or whether the duties constituted an
identifiable, regular position of a type readily available on the general labor market in his commuting area and that
he was qualified to perform).

3

LEGAL PRECEDENT
FECA provides that the wage-earning capacity of an employee is determined by her
actual earnings if her actual earnings fairly and reasonably represent her wage-earning capacity.5
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.6 The Board has long held that actual wages
earned in the open labor market more accurately represent an employee’s earning capacity and
constitute a more reliable gauge than a secondary method such as an opinion of a vocational
rehabilitation specialist.7 While wages actually earned are generally the best measure of an
injured worker’s capacity for employment, such wages may not be based on make shift or
sheltered employment.8
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous.9 The burden of proof is on the party
attempting to show a modification of the wage-earning capacity determination.10
FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions
withdrawn pursuant to NRP. If, as in the present case, a wage-earning capacity decision has
been issued and the employee claims compensation for total disability, OWCP must develop the
evidence to determine whether a modification of that decision is appropriate.11
ANALYSIS
OWCP issued a formal loss of wage-earning capacity decision on May 31, 2001. After
the employing establishment withdrew her limited-duty position pursuant to NRP, appellant
claimed a recurrence of total disability beginning May 19, 2010.
OWCP adjudicated appellant’s recurrence claim under the customary criteria for
modifying a loss of wage-earning capacity determination. It did not acknowledge FECA
Bulletin No. 09-05 or fully follow the procedures outlined therein for claim such as this, in which
limited-duty positions are withdrawn pursuant to NRP.

5

5 U.S.C. § 8115(a).

6

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

7

Billie S. Miller, 15 ECAB 168 (1963).

8

A.J., Docket No. 10-619 (issued June 29, 2010); Connie L. Potratz-Watson, 56 ECAB 316 (2005).

9

Daniel J. Boesen, 38 ECAB 556 (1987).

10

Sue A. Sedgwick, 45 ECAB 211 (1993).

11

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.12 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.13
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of
wage-earning capacity determination was based was a bona fide position at the time of the rating,
and to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.14
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside OWCP’s September 29, 2010 decision and remand the case for further consideration.
After proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an
appropriate de novo decision on appellant’s entitlement to wage-loss compensation beginning
May 19, 2010.15
CONCLUSION
The Board finds that this case is not in posture for decision. Further action is warranted.

12

Id.

13

Id. at §§ I.A.1-2

14

Id. at § I.A.3.

15

See M.E., Docket No. 11-1416 (issued May 17, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: September 24, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, GREENE POST
OFFICE, Greene, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0644
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the October 5, 2020 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as a consequence of the accepted
December 12, 2014 employment injury.
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on
December 12, 2014 while in the performance of duty. Appellant stopped work on that date.
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator
cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the
supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.
In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon,
diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear
of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her
subsequent injury to her left shoulder in December 2014. He related that appellant had developed
discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder,
and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van
Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed
a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right
shoulder. He also noted that the right shoulder had excellent strength and a little subacromial
crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to favoring her left
shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the status and casual relationship of the right shoulder condition.

4

Docket No. 18-1514 (issued July 18, 2019).

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form
CA-2) for complete tear of the left rotator cuff.

2

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel argued that
Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish
that appellant’s right shoulder condition was related to overuse to compensate for the work-related
injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential injury to her right shoulder. It afforded
appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial
tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent,
impingement on the myotendinous junction of the supraspinatus tendon with fluid along both
articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon
tenosynovitis.
On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an
opinion as to whether the accepted employment injury to appellant’s left shoulder was competent
to produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports
regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial
rotator cuff tear.
In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should
not be expanded to include the consequential conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to
determine with any certainty whether the left shoulder condition had caused the right shoulder
condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury
of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right
rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right
shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if
this lesion was preexisting or whether it developed following the accepted work -related injury.”
He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal
shoulder ROM following the left rotator cuff repair and explained that overuse of the right shoulder
was “not medically probable in view of the normal functioning of her left shoulder. ” The DMA
also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that
appellant stopped work in December 2014 and remained off work since that time, and that there
was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He
further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year
following the left rotator cuff repair, and explained that if she “had remained working in some
capacity, especially at a job that required overhead lifting, it would be reasonable to assign the
patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not
the case.” The DMA noted that, if additional medical records were provided that documented the
3

onset of appellant’s right shoulder pain while she was still employed by the employing
establishment or at any other job following the left rotator cuff repair, then the issue of causation
could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear were consequential to the accepted left shoulder employment injury.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew
Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness
rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and
treatment, examined appellant, and provided physical examination findings. He found full range
of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott
explained that there were no other injuries due to the December 12, 2014 employment injury. He
noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott
reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the
supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that
the accepted conditions had resolved.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that
the DMA’s report should not have been relied upon, and that appellant should have been referred
for a second opinion evaluation regarding the right shoulder.
OWCP received additional medical evidence.
In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine,
examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax
opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal
delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small
spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few
specific events, including lifting heavy buckets of mail in December 2014 and turning in her car
to grab a package, contributed significantly to the development of both bilateral chronic shoulder
pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition,
referred to his prior report and examination, and opined, “I do not find a consequential injury for
the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
4

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018
OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018
decision.6
OWCP continued to receive medical evidence regarding appellant’s left shoulder
condition.
On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a
March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and
the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.
In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017,
referenced his physical findings from August 8, 2017, and advised that appellant suffered from a
right shoulder condition characterized by a rotator cuff tear and impingement. He related that
appellant gave a history that her right shoulder became symptomatic in 2014, shortly after she had
returned to work following a left shoulder rotator cuff repair and subsequent surgical repair related
to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery
and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the
“same work duties, which caused the left shoulder injury then contributed to the injury in the right
shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator
cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”
Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that
normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was
compensating for the left shoulder by using her right shoulder. He opined that “it was only natural
for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that
Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that
the symptoms were present. He explained that an MRI scan was not usually pursued until the
symptoms became chronic.
By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, 7 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

employment injury.8 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 9
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, which is attributable to the employee’s own intentional conduct. 10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable. 11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the accepted employment injury. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include additional conditions as a consequence of the
December 12, 2014 employment injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the
Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 14

8

J.B., Docket No. 20-1566 (issued August 31, 2021); see J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D., Docket No. 17-1894 (issued August 6, 2018); A.M.,
Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K.
Larson, The Law of Workers’ Compensation § 10-1.
11

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

13

See T.S., Docket No. 20-0968 (issued August 17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018);
P.M., Docket No. 18-0287 (issued October 11, 2018).
14

See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021);
J.S., Docket No. 19-0022 (issued November 4, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from
June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion
that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by
her attempting to compensate for the left shoulder injury.” However, the record reflects that, while
appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she
did not return to work following the accepted December 12, 2014 employment injury. Therefore,
it is unclear how Dr. Lax formulated his opinion that appellant compensated for her left shoulder,
following the accepted December 12, 2014 employment injury. The Board has held that a medical
opinion that lacks medical rationale is of limited probative value. 15 Moreover, in this letter,
Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed
to the injury in the right shoulder.” He did not further explain in this report what activities
appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not
based on a complete factual background.16 The Board also finds that as Dr. Lax attempted to relate
appellant’s diagnosed right shoulder conditions to performance of her employment duties, and
conversely attempted to opine that her right shoulder condition was a consequence of her
December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held
that medical reports are of limited probative value if they are internally inconsistent.17
In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical
certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy
lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements
(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of
mail in December 2014 and turning in her car to grab a package, contributed significantly to the
development of both bilateral chronic shoulder pain and rotator cuff tears.
As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s
right shoulder conditions were a consequence of the accepted left shoulder injury of December 12,
2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a
conflict in the medical opinion evidence. The Board thus finds that appellant has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional conditions as a consequence
of the accepted December 12, 2014 employment injury.

15

J.P., Docket No. 19-0129 (issued April 26, 2019).

16

Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C., Docket No. 19-0594 (issued August 13, 2019).

17

S.H., Docket No. 19-0631 (issued September 5, 2019); L.L., Docket No. 18-0861 (issued April 5, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forestville, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1185
Issued: September 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 9, 2017 appellant filed a timely appeal from a March 10, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$4,226.31 overpayment of compensation for the period October 19 to December 12, 2015; and
(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 5, 2014 appellant, then a 52-year-old rural carrier,
sustained a sprain of his left shoulder (trapezius). He stopped work on November 5, 2014 and
returned to full-time work on November 9, 2014.
Appellant stopped work again on
December 8, 2014. On February 23, 2015 he filed a Claim for Compensation (Form CA-7)
claiming wage loss for the period January 22 to February 20, 2015, and he later filed Forms
CA-7 claiming wage loss for various periods after February 20, 2015. On April 3, 2015
appellant received compensation on the daily rolls for wage loss beginning February 28, 2015.
He received two more payments on the daily roll before being placed on the periodic rolls
beginning May 3, 2015.
In a May 12, 2015 letter, OWCP informed appellant that, beginning May 3, 2015, he had
total disability compensation on the periodic rolls every 28 days. It advised him that, to
minimize the possibility of an overpayment of compensation, he must notify it immediately
when he went back to work. OWCP informed appellant that, if he worked for any portion of the
period for which he received compensation, he must return the payment to OWCP even if he had
already advised it that he was working.2
In an October 9, 2015 report, Dr. Shawn Hsieh, an attending Board-certified physical
medicine and rehabilitation physician, indicated that appellant could return to full-duty work
with no limitations or restrictions on October 19, 2015.
On October 19, 2015 appellant returned to full-duty work for the employing
establishment.
The record reflects that, on December 14, 2015, a human resources official from the
employing establishment, L.M., telephoned an OWCP claims examiner, S.C., and advised that
appellant had returned to work a “month and a half ago.” On December 15, 2015 the human
resources official telephoned another OWCP official, D.M., and advised that appellant returned
to work on October 19, 2015.
In a March 7, 2016 notice,3 OWCP advised appellant of its preliminary determination
that he received a $4,226.31 overpayment of compensation for the period October 19 to
December 12, 2015 because he received total disability compensation for this period after he
2

OWCP advised appellant that, for payments sent by electronic fund transfer (EFT), a notification of the date and
amount of payment appears on the statement from his financial institution and that he was expected to monitor his
EFT deposits carefully, at least every two weeks. OWCP informed appellant that, if he worked for any portion of
the period for which a deposit was made, he must advise OWCP immediately.
3

OWCP first sent appellant a preliminary overpayment notice dated February 10, 2016 alleging a $4,732.52
overpayment, but it recalculated the alleged overpayment to $4,226.31 and sent him a new amended notice dated
March 7, 2016. In connection with the February 10, 2016 preliminary overpayment notice, per OWCP’s request,
appellant submitted an Overpayment Recovery Questionnaire (Form OWCP-20) in which he listed monthly income
of $2,300.00, monthly expenses of $2,320.00, and zero assets. Appellant indicated that the overpayment was not his
fault because he was supposed to get compensation starting January 27, 2015 but did not receive it until two months
later. He also noted that he still thought OWCP owed him compensation “dating back to [January 27, 2015].”

2

returned to full-time work on October 19, 2015.4 OWCP also made a preliminary determination
that he was at fault in the creation of the overpayment. It advised appellant that he could submit
evidence challenging the fact, amount, or finding of fault, and request waiver of recovery of the
overpayment. OWCP informed him that he could submit additional evidence in writing or at
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of
the date of the written notice of overpayment. It requested that appellant complete and return an
enclosed Form OWCP-20 within 30 days even if he was not requesting waiver of recovery of the
overpayment.
Appellant requested a prerecoupment telephone hearing with a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on February 7, 2017, appellant
testified that he did not believe he was at fault in the creation of the $4,226.31 overpayment. He
asserted that he did not receive his first compensation check for his November 5, 2014
employment injury until June 2015 and that he thought that the EFT deposits he received from
OWCP after his October 19, 2015 return to work constituted wage-loss compensation that
OWCP owed him for December 2014 through June 2015.5 Appellant noted that, after he
received the November 2015 EFT deposit, he called an OWCP claims examiner, and left a
message advising him that he had returned to work. He indicated that, after he received the
December 2015 EFT deposit, he advised a human resources official at the employing
establishment, L.M., that he had returned to work, and that she in turn advised OWCP of this
fact. Appellant also noted, “Now if I was overpaid in November and December[,] why in
April 2016 did they send me additional money, $1,500 [?]….”6 He testified that he had
$2,400.00 in monthly income, and $2,120.00 in monthly expenses comprised of rent ($700.00),
food ($800.00), clothing ($100.00), utilities ($120.00), and miscellaneous household expenses
($400.00). Appellant also testified that he had no assets other than his home, household
furnishings, and car.

4

The evidence of record contains payment records and calculation sheets showing that appellant received
$4,226.31 in compensation for the period October 19 to December 12, 2015. The payment records reflect that, on
November 14, 2015, appellant received a $2,165.86 EFT deposit covering the period October 18 to November 14,
2015 and that, on December 12, 2015, he received a $2,137.80 EFT deposit covering the period November 15 to
December 12, 2015. The November 14, 2015 payment included payment of compensation for one day (October 18,
2015) that appellant was off work prior to his October 19, 2015 return to work, and OWCP excluded the
compensation appellant received for October 18, 2015 when it calculated the $4,226.31 overpayment for the period
October 19 to December 12, 2015.
5

The evidence of record reflects that, by the time appellant received the November 14 and December 12, 2015
EFT deposits, all the monies that he received for wage loss between February 28 and July 1, 2015 had been paid to
him by July 25, 2015. At the February 7, 2017 hearing, appellant asserted he still had not received wage-loss
compensation for March 2015. The evidence of record shows that he received his first EFT deposit on April 3,
2015, a deposit which covered wage loss for the period February 28 to March 27, 2015, and that on April 24, 2015
he received an EFT deposit for the period March 28 to April 17, 2015.
6

The evidence of record shows that on July 8, 2016 appellant received an $1,508.53 EFT deposit for the period
January 22 to February 9, 2015. The payment record indicated that, for the period February 10 to 20, 2015,
appellant was paid through leave/holiday pay or worked and that, for the period February 21 to 27, 2015, he did not
claim compensation. The evidence of record further reflects that appellant had not established entitlement to wageloss compensation for the period January 22 to February 9, 2015 until OWCP issued its July 5, 2016 decision
granting wage-loss compensation for this period.

3

In a March 10, 2017 decision, OWCP’s hearing representative determined that appellant
received an overpayment of compensation in the amount of $4,226.31. He found that appellant
was at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment. OWCP required that appellant repay the overpayment by paying $200.00 each
month.7
LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.9
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.10 Section 10.500 of OWCP’s regulations provides that compensation for
wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.11
ANALYSIS -- ISSUE 1
The evidence of record shows that appellant returned to full-time work for the employing
establishment on October 19, 2015, but received total disability compensation in the amount of
$4,226.31 after his return to work. The record contains OWCP payment records and calculations
showing that appellant received $4,226.31 in total disability compensation for the period
October 19 to December 12, 2015.12 However, appellant was entitled to receive such total
disability compensation after he returned to full-time work for the employing establishment on
7

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB
217 (2002). As appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case.
See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10

Id. at § 8116(a). The Board has held that a claimant is not entitled to receive temporary total disability and
actual earnings for the same period. See M.S., Docket No. 16-0289 (issued April 21, 2016).
11

20 C.F.R. § 10.500(a).

12

Supra note 5.

4

October 19, 2015.13 For these reasons, the Board finds that OWCP properly found that appellant
received a $4,226.31 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that 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 FECA or would be against equity and
good conscience.14 A claimant who is at fault in the creation of an overpayment is not entitled to
waiver.15 Section § 10.433 of OWCP’s regulations provides that an individual will be found at
fault in the creation of an overpayment of compensation who: (1) made an incorrect statement as
to a material fact which he or she knew or should have known to be incorrect; (2) failed to
provide information which he or she knew or should have known to be material; or (3) accepted
a payment which he or she knew or should have known to be incorrect.”16
The Board has held that an employee who receives payments from OWCP in the form of
direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.17 It is not
appropriate to make a finding that a claimant has accepted an overpayment through direct deposit
until such a time as a reasonable person would have been aware that this overpayment had
occurred.18 The Board has also held in cases involving a series of incorrect payments, where the
requisite knowledge is established by a letter or telephone call from OWCP or simply with the
passage of time and a greater opportunity for discovery, the claimant will be at fault for
accepting the payments subsequently deposited.19
ANALYSIS -- ISSUE 2
In the present case, OWCP found that appellant was at fault because he had accepted
compensation payments that he knew or should have known were incorrect.20 The Board notes
that a complete analysis of the fault issue, when a claimant has returned to work and continues to
13

See supra notes 10 and 11. On appeal appellant argues that the compensation checks he received in November
and December 2015 were for monies that were part of the wage-loss compensation to which he was entitled due to
his work-related injuries. However, the evidence of record shows that these monies covered a period after he
returned to work on October 19, 2015, a point at which he would not have been entitled to receive total disability
compensation.
14

5 U.S.C. § 8129(b).

15

Gregg B. Manston, 45 ECAB 344, 354 (1994).

16

20 C.F.R. § 10.433.

17

D.B., Docket No. 15-0258 (issued February 1, 2016).

18

P.L., Docket No. 16-0127 (issued May 3, 2016).

19

Tammy Craven, 57 ECAB 689, 693 (2006).

20

See supra note 16.

5

receive compensation, must properly consider the first payment after the return to work. After
his return to work on October 19, 2015, appellant received a $2,165.86 direct deposit by EFT on
November 14, 2014, representing his compensation for the period October 18 to
November 14, 2015. The question is whether he had, at the time of the first deposit, accepted a
payment he knew or should have known was incorrect. No evidence was presented by OWCP to
establish that, at the time appellant received the November 14, 2015 deposit, he knew or should
have known this payment was incorrect.
As noted above, the Board has held that the claimant may not have the requisite
knowledge with respect to the first deposit payment after a return to work.21 The Board finds the
evidence of record does not establish that appellant was at fault in accepting the initial payment
deposited by EFT on November 14, 2015, a payment which provided wage-loss compensation
for the period October 18 to November 14, 2015. The Board notes that the record contains no
evidence that he knew or should have known on November 14, 2015 that this payment was
incorrect. Additionally, appellant was entitled to some wage-loss compensation for the period
October 18 to November 14, 2015 and thus the circumstances surrounding the overpayment were
more complex than usual.22 A finding that appellant was not at fault with respect to the
November 14, 2015 EFT deposit does not establish that he was entitled to waiver of recovery of
the portion of the overpayment covered by the deposit, i.e., October 19 to November 14, 2015.23
On return of the case record, OWCP should properly consider the issue of waiver of this limited
portion of the overpayment.24
The Board has held that for subsequent payments through direct deposit, a claimant may
be found to have accepted payments he or she knew or should have known to be incorrect.25
OWCP had advised appellant in the May 12, 2015 letter that he could not receive compensation
for total disability during a period he had returned to work.26 By the time OWCP issued its
December 12, 2015 direct deposit by EFT, appellant should have been aware that a deposit of
compensation representing total disability was incorrect. After his receipt of the first direct

21

See supra note 17.

22

V.D., Docket No. 16-0578 (issued November 3, 2016). Appellant would have been entitled to wage-loss
compensation for lost time from work on October 18, 2015.
23

M.L., Docket No. 15-1683 (issued June 20, 2016).

24

See id.

25

See supra note 19.

26

In the May 12, 2015 letter, OWCP informed appellant that, beginning May 3, 2015, he started receiving total
disability compensation on the periodic rolls every 28 days. It advised him that, to minimize the possibility of an
overpayment of compensation, he must notify it immediately of his return to work. OWCP informed appellant that,
if he worked for any portion of the period for which he received compensation, he must return the payment even if
he had already advised he was again working. It advised appellant that, for payments sent by EFT, a notification of
the date and amount of payment appears on the statement from his financial institution and that he was expected to
monitor his EFT deposits carefully, at least every two weeks.

6

deposit following his October 19, 2015 return to work, he was on notice that OWCP was making
payments to him in error.27
Appellant asserted that he felt the continuing payments represented some type of
compensation payment for periods of wage loss prior to his October 19, 2015 return to full-time
work. There is insufficient evidence of record to support this argument. The record does not
indicate that appellant had a reasonable basis for believing that the deposited payments
represented something other than continuing wage-loss compensation as forewarned in the
May 12, 2015 letter from OWCP. During the February 7, 2017 prerecoupment hearing with an
OWCP hearing representative, appellant testified that he believed that the EFT deposits he
received from OWCP after his October 19, 2015 return to work constituted the amount of wageloss compensation that OWCP owed him for December 2014 through June 2015. However, the
evidence of record reflects that, by the time appellant received the November 14 and
December 12, 2015 EFT deposits, all the monies due him for wage loss between February 28 and
July 1, 2015 had been paid to him by July 25, 201528 and he had not established entitlement to
wage-loss compensation for any period prior to February 28, 2015.29 The Board accordingly
finds that OWCP properly found appellant at fault in the creation of the overpayment of
compensation which occurred due to the $2,137.80 direct deposit by EFT which covered the
period November 15 to December 12, 2015. Based upon the finding of fault for this period,
appellant is not entitled to waiver of recovery of this portion of the overpayment.30
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $4,226.31
overpayment of compensation for the period October 19 to December 12, 2015. The Board
further finds that appellant was not at fault regarding the portion of the $4,226.31 overpayment
for the period October 19 to November 14, 2015, and the case is remanded to OWCP to
determine whether waiver of the recovery of the overpayment is warranted. The Board further
finds that OWCP properly found that appellant was at fault for the remaining portion of the
$4,226.31 overpayment of compensation for the period November 15 to December 12, 2015 and,
therefore, is ineligible for waiver of recovery for this remaining portion.

27

See T.B., Docket No. 16-1807 (issued February 2, 2017).

28

With regard to appellant’s claim at the February 7, 2017 hearing that he still had not received wage-loss
compensation for March 2015, the evidence of record reflects that, on April 3, 2015, he received an EFT deposit
which covered wage loss for the period February 28 to March 27, 2015 and that, on April 24, 2015, he received an
EFT deposit which covered wage loss for the period March 28 to April 17, 2015.
29

Supra note 6.

30

See supra notes 14 and 15.

7

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to OWCP for further consideration consistent with this decision.
Issued: September 18, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0153
Issued: October 8, 2021

Case Submitted on the Record

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

JURISDICTION
On October 25, 2019 appellant, through her representative, filed a timely appeal from an
October 3, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on March 28, 2016, as alleged.
FACTUAL HISTORY
On April 8, 2016 appellant, then a 52-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 28, 2016 she sustained anxiety, insomnia, hypertension,
and loss of appetite when she found two large knives in a parcel locker, which she opened with an
arrow key while in the performance of duty. She stopped work on April 1, 2016. On the reverse
side of the claim form T.B., appellant’s supervisor, noted that appellant asserted that “seeing the
knives frightened her.” She indicated that appellant was not in the performance of duty when
injured. T.B. controverted the claim noting that appellant was able to complete the delivery of her
route on the date of incident.
In support of her claim, appellant submitted an April 1, 2016 work release note by
Dr. Randal C. Sugerman, a general surgeon, who held appellant off work that day and returned her
to full duty, effective April 2, 2016. In a note dated April 4, 2016, Dr. Alan D. Justice, a Boardcertified internist, indicated that she was seen in his office on that date and that he advised her to
remain off work until April 19, 2016. In an undated return-to-work note, he noted that appellant
came under his care from April 18 through 25, 2016. Dr. Justice held her off from work until
April 25, 2016.
In an April 18, 2016 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care. It noted that she suffered a
nervous breakdown and checked a box indicating that there was doubt that her condition was
caused by an injury sustained in the performance of duty.
In a letter dated April 19, 2016, the employing establishment again challenged appellant’s
claim, asserting that she had not submitted sufficient evidence to establish fact of injury,
performance of duty, or causal relationship.
In a development letter dated May 19, 2016, OWCP notified appellant of the deficiencies
of her claim and afforded her 30 days to submit additional medical evidence.
Dr. Justice, in a May 5, 2016 report, indicated that appellant had been under his care since
October 2015. He noted that, prior to her April 4, 2016 visit, she had not been prescribed
medications for hypertension or anxiety, but that she was currently taking prescription medication
for both conditions. Dr. Justice provided a work release slip noting that appellant was under his
care from May 9 through 22, 2016 and that she could return to work on May 23, 2016.
A May 31, 2016 duty status report (Form CA-17) by Dr. Dwight L. Bearden, a Boardcertified psychiatrist, noted that appellant had “found knives in [a] parcel locker, affected blood
pressure and anxiety and PTSD [post-traumatic stress disorder].” Dr. Bearden held appellant off
from work from June 1 through 25, 2016 and returned her to work for four hours a day, effective
June 26, 2016.

2

OWCP also received an April 7, 2016 audit report by the employing establishment’s Office
of the Inspector General regarding the handling of OWCP claim forms, a May 5, 2016 report by
Sally Powell, a nurse practitioner, medical billing statements, and prescription information.
By decision dated June 27, 2016, OWCP accepted that the March 28, 2016 employment
incident occurred as alleged, but denied the claim as there was no medical evidence diagnosing an
injury or condition causally related to that incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On July 15, 2016 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on February 17, 2017. At the hearing,
appellant explained that, after discovering two large chef knives in the parcel locker, she
immediately closed the unit, returned to her delivery vehicle, and telephoned her supervisor. The
supervisor instructed her to photograph the knives in place. Appellant did so, then continued on
her route. She explained that she had originally assumed that a coworker placed the two knives in
the parcel locker as it could be opened only with a postal arrow key that was signed in and out on
a daily basis. Appellant later learned that some arrow keys had been missing since
November 2015. She acknowledged that, while the culprit may not have been a coworker, the
presence of the knives was a safety hazard, proof of criminal tampering, and that she felt “done
dirty” by whoever placed the knives. Appellant noted that the employing establishment
investigated the incident, found no blood on the knives, and so discarded them. Following the
incident, she returned to work for four hours a day in July 2016, and to full-time duty in
August 2016, but another employee serviced the parcel locker where the knives were found.
Appellant submitted additional evidence.
In a May 18, 2016 report, Dr. Bearden noted that on March 28, 2016 appellant found two
knives in a parcel box, which could only be accessed by fellow postal workers with a key. Since
then, appellant felt overwhelmed, fearful, and experienced panic attacks. Dr. Bearden provided
periodic reports through June 8, 2016, noting appellant’s positive response to medication and
group therapy. He diagnosed PTSD, generalized anxiety disorder, and hypertension. 3
Dr. Dan E. Phillips, a Board-certified psychiatrist, noted in a June 15, 2016 report that
appellant had recently opened “a mailbox that no one is supposed to have a key to except other
mail carriers” and there were two knives inside. Appellant interpreted this as a threat against her
because of her sexual orientation, as the knives appeared the same day the governor “vetoed a
religious freedom bill.” Dr. Phillips diagnosed panic disorder, PTSD, and depression. He
provided periodic reports through February 1, 2017 diagnosing panic disorder, PTSD, and rule/out
delusional disorder.4
By decision dated April 28, 2017, the hearing representative affirmed the June 27, 2016
decision as appellant failed to establish her allegations of harassment due to sexual orientation.

3

In a June 7, 2016 report, Dr. Muhammad Rehan, an internist, diagnosed hypertension requiring medical
management, anxiety neurosis, and depression.
4

Appellant also submitted reports from Ms. Powell and a family therapist.

3

On April 27, 2018 appellant, through her representative, requested reconsideration. She
asserted that the evidence of record established that the accepted March 28, 2016 employment
incident occurred in the performance of duty and caused an emotional condition with consequen tial
hypertension. Appellant submitted additional evidence.
In an April 1, 2016 report, Dr. Sugerman noted appellant’s one-day history of headache,
nausea, and elevated blood pressure. He diagnosed hypertension and prescribed medication.
In a May 7, 2018 report, Dr. Bearden opined that appellant’s discovery of the knives on
March 28, 2016 caused emotional stress and a possible aggravation of preexisting PTSD.
By decision dated July 20, 2018, OWCP denied modification of the prior decision as
appellant had not established that the knives were intended as a specific threat to her. It, therefore,
found that she had not established a compensable factor of employment.
On July 5, 2019 appellant, through her representative, requested reconsideration. She
contended that she had met her burden of proof to establish her claim as the accepted March 28,
2016 incident occurred in the performance of duty, and her physicians attributed PTSD and
hypertension to this incident.
By decision dated October 3, 2019, OWCP denied modification of the prior decision as
appellant did not establish that the knives were intended as harassment. Appellant’s perception of
harassment was therefore self-generated and noncompensable.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 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.8
To establish an emotional condition causally related to factors of a claimant’s federal
employment, he or she must submit: (1) factual evidence identifying and supporting employment
5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

factors or incidents alleged to have caused or contributed to the condition; (2) rationalized medical
evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing that the emotional condition is causally related to the identified
compensable employment factors.9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,10 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. 11 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.12 Then an employee experiences emotional stress
in carrying out his or her employment duties and the medical evidence establishes that the
disability resulted from an emotional reaction to such situation, the disability is generally regarded
as due to an injury arising out of and in the course of employment. This is true when the
employee’s disability results from his or her emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of the work. 13
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.14 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.15
ANALYSIS
The Board finds that this case is not in posture for decision.

9

C.M., Docket No. 17-1076 (issued November 14, 2018); Kathleen D. Walker, 42 ECAB 603 (1991).

10

28 ECAB 125 (1976).

11

5 U.S.C. § 8101 et seq.

12

G.R., Docket No. 18-0893 (issued November 21, 2018). Robert W. Johns, 51 ECAB 136 (1999).

13

G.G., Docket No. 18-0432 (issued February 12, 2019).

14

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

15

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

5

OWCP denied appellant’s emotional condition claim, finding that she had not established
a compensable employment factor. The Board must, therefore, initially review whether the alleged
incident and conditions of employment are covered employment factors under the terms of FECA.
Regarding appellant’s allegation that she found two large knives in a parcel locker on
March 28, 2018, the Board has recognized that instances when sufficiently detailed by the claimant
and supported by evidence, may constitute compensable employment factors.16
Appellant consistently described that she opened the parcel locker with a proprietary arrow
key while in the performance of duty, saw two large chef’s knives, and experienced severe anxiety.
She immediately telephoned her supervisor who instructed her to photograph the knives in place.
Appellant indicated that “seeing the knives frightened her.” At the time she saw the knives, she
believed that only her coworkers had a key to access the parcel locker and that a coworker had
“done her dirty” by placing the knives in the locker. Appellant interpreted this as a threat against
her because of her sexual orientation.
The Board finds that given the circumstance of her encounter with the large chef ’s knives
in a parcel locker, appellant has established a compensable factor of employment under FECA.
OWCP did not analyze or develop the medical evidence giv en its finding that there were no
compensable employment factors. The case will therefore be remanded to OWCP for this
purpose.17 After any further development as deemed necessary, it shall issue a de novo decision
on the issue of whether appellant has an emotional condition due to the compensable factor of his
federal employment.
CONCLUSION
The Board finds that the case is not in posture for decision.18

16

J.Z., Docket No 19-1156 (issued July 28, 2020); J.W., Docket No. 17-0999 (issued September 4, 2018).

17

K.A., Docket No. 14-0017 (issued August 4, 2014); Robert Bartlett, 51 ECAB 664 (2000).

18

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7