United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD,
Bainbridge Island, WA, Employer
__________________________________________
Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-684
Issued: August 29, 2012

Case Submitted on the Record

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

On February 6, 2012 appellant, through his attorney, filed a timely appeal from a
November 28, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board docketed the appeal as No. 12-684.
The Board has considered the matter and finds that OWCP’s November 28, 2011
decision must be set aside. On appeal appellant’s attorney contends that he did not receive a
copy of the November 28, 2011 decision. On April 18, 2011 OWCP received an April 11, 2011
signed statement from appellant designating John E. Goodwin, Esq., to represent him in
proceedings before OWCP. By letter dated April 20, 2011, OWCP acknowledged John E.
Goodwin, Esq., as appellant’s authorized representative. By decision dated November 28, 2011,
OWCP denied appellant’s schedule award claim finding that his hearing loss was not severe
enough to be considered ratable. A copy of that decision was not sent to appellant’s authorized
representative.

OWCP’s regulations and Board case law require OWCP to send a copy of its decision to
the authorized representative.1 The Board has held that a decision under the Federal Employees
Compensation Act2 (FECA) is not properly issued unless both appellant and the authorized
representative have been sent copies of the decision.3 As the November 28, 2011 decision was
not sent to appellant’s representative, the Board concludes that the decision was not properly
issued. The Board will set aside the decision and remand the case for an appropriate and
properly issued merit decision on the relevant issues. Accordingly,
IT IS HEREBY ORDERED THAT the November 28, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: August 29, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1

20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. If the
employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No.
03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when
it did not send a copy of that decision to the authorized representative. In James Consentino, Docket No. 04-1774
(issued October 21, 2004), the Board found that OWCP improperly issued a decision terminating compensation
because it did not mail the decision to appellant’s representative and declared the termination decision null and void.
2

5 U.S.C. § 8101 et seq.

3

See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDITH NORSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0769
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On February 22, 2019 appellant, through counsel, filed a timely appeal from an August 28,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Appellant timely requested oral argument before the Board. By order dated July 20, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 19-0769 (issued July 20, 2020).

Federal Employees’ Compensation Act3 (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 met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on October 1, 2015 that she fell to her knee and twisted her ankle while in
the performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that she was injured in the performance of duty. Appellant stopped work on the
date of injury.
In support of her claim, appellant provided an October 1, 2015 note from Dr. Ryan A.
Secan, a Board-certified internist, noting that she fell after her legs gave way for an unknown
reason. Dr. Secan recounted that she did not walk well due to back issues and used a scooter to
cover long distances. He reviewed x-rays and diagnosed a spiral fracture through the distal left
fibula.
A note of even date from Linda Gaudet, a registered nurse, indicated that appellant was
walking out of her office using her cane when her knees collapsed and she fell, landing on her right
knee.
In an October 2, 2015 report, Dr. Brock Drapkin, a Board-certified internist, noted that
appellant fell forward when walking home from work and was unable to get up due to severe left
leg pain. He relayed that, over the past several months, she had experienced frequent falls for
uncertain reasons. Dr. Drapkin related that appellant experienced a feeling of generalized
weakness when she fell, but no loss of consciousness, and was generally unable to get up by
herself. He diagnosed preexisting morbid obesity, gout, hyperlipidemia, depression, neuropathy,
and found that she had sustained a nondisplaced oblique distal fibular fracture on the left.
Dr. Drapkin found that appellant had experienced an unexplained fall without loss of
consciousness which resulted in a distal left fibular fracture. He reported, “The mechanism of this
and other recent recurrent falls is not clear.”
On October 2, 2015 Dr. Eric Holstein, a Board-certified orthopedic surgeon, examined
appellant and noted her history of morbid obesity and severe knee degenerative joint disease. He
reported that she ambulated with a cane and that she sustained a syncopal episode at work.
Dr. Holstein found that appellant did not slip, but fell after passing out. He noted that she was
unclear as to why this occurred, and that she awoke with pain in her left leg. Dr. Holstein
diagnosed nondisplaced distal fibula fracture.

3

5 U.S.C. § 8101 et seq.

2

On October 2, 2015 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16).
Dr. Jasper Ngomba, a Board-certified internist, examined appellant on October 3, 2015 and
noted that she had fallen 20 times in the past six months. He found that she had been diagnosed
with optic neuritis.
In an October 4, 2015 report, Dr. Stacie Perlman, a Board-certified surgeon, noted that, on
October 2, 2015, appellant fell on the sidewalk while walking home from work and sustained a
nondisplaced left fibular fracture.
On October 4, 2015 Dr. Jonathan Moray, a Board-certified neurologist, examined
appellant due to her frequent falls. He noted that she reported falls beginning 23 years earlier.
Dr. Moray noted that appellant had fallen recently and was experiencing increasing pain in her low
back as well as weakness and numbness in the right leg. He indicated that she had chronic neck
and back pain. Dr. Moray noted that appellant experienced frequent falling with an unknown
etiology. He reported that she had a history of a possible central nervous system disease, that her
examination was consistent with peripheral neuropathy or spinal stenosis, and questionable
regarding lumbar radiculopathy with myelopathy.
On October 5, 2015 appellant underwent a brain magnetic resonance imaging (MRI) scan
which demonstrated minimal scattering of white matter signal abnormalities with bilateral frontal
predominance differential including microangiopathic change, Lyme disease, the effects of
hypertension or migraine, demyelinating disease, and other entities.
In a December 10, 2015 development letter, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to respond.
In an October 1, 2015 note, Jessica G. Sprangers, a physician assistant, reported that
appellant described appellant’s fall as resulting from a slip, and that she had no preceding
symptoms. She recounted that appellant used a cane due to chronic back pain. Appellant denied
feeling dizzy or weak just prior to falling. Ms. Sprangers noted that appellant was unsure of
exactly what made her fall, but that appellant had asserted that her legs did not “give out.” She
noted that appellant had experienced frequent falls in the past due to balance problems.
In a December 16, 2015 letter, appellant denied syncopal episodes. She asserted that on
October 1, 2015 she was feeling well, did not have dizziness, and that her gait was steady.
Appellant alleged that she informed her physicians that she did not know why she fell. She
described the events surrounding her fall as walking toward the restroom at the employing
establishment at approximately 3:55 p.m. and as she was walking in the corridor she suddenly had
fallen onto the hard surface of the corridor. Appellant noted pain in her left foot and indicated that
she sought medical treatment. She asserted that she did not strike any objects on the way down to
the immediate supporting surface. Appellant denied any history of fainting. She noted that her
back was arthritic. Appellant reported that she had experienced more falls as she had aged, but
that the falls were not serious and usually caused by an uneven surface or due to objects, ice, or

3

fluids on the floor. She did not notice any substance on the floor on October 1, 2015 and did not
know what caused her fall.
In a December 24, 2015 note, Dr. Mythily Meda, an internist, reported that appellant had
a history of dizziness, but no syncope. She recounted that appellant reported no syncopal episode
at the time of her fall on October 1, 2015.
By decision dated January 14, 2016, OWCP denied appellant’s claim, finding that the
factual evidence was insufficient to support that she actually experienced the alleged employment
incident as a result of her work duties, as well as that the medical evidence did not substantiate
that the diagnosis provided was caused or aggravated by a work injury. It noted that she reported
that she did not know what caused her fall and did not strike any object as she was falling. OWCP
also noted that Dr. Holstein reported that appellant had sustained a syncopal episode at work.
On February 5, 2016 appellant requested reconsideration of the January 14, 2016 decision.
She provided a February 5, 2016 note from Dr. Holstein in which he reported that she used a cane
or walker due to severe knee degenerative joint disease. Dr. Holstein reported that there had been
a discrepancy between appellant’s history of injury, experiencing an mechanical fall, and his
reports suggesting a syncopal episode. He noted that she reported no loss of consciousness and
that medically there were no abnormalities. Dr. Holstein also reported that physicians had found
no diagnosis of syncope in appellant’s medical history, and that therefore her history was
“consistent with a mechanical fall at work.” He diagnosed closed fracture of the lateral malleolus.
In a March 10, 2016 narrative statement, appellant again asserted that she had not ever
experienced syncope including immediately prior to her fall on October 1, 2015. She noted that
she did have a history of dizziness due to medications prior to October 1, 2015 and that this was
addressed through dosage adjustment before her fall on October 1, 2015. Appellant surmised that
she likely slipped on liquid left on the floor by a patient. She submitted nurses’ notes, as well as
physical and occupational therapy notes.
By decision dated April 11, 2016, OWCP denied modification.
On February 8, 2017 appellant, through counsel, requested reconsideration of the April 11,
2016 decision. She submitted additional medical and factual evidence and asserted that OWCP
had not established that her fall on October 1, 2015 was idiopathic, rather than an unexplained fall
which would be considered to have occurred in the performance of duty.
In a February 7, 2017 affidavit, appellant asserted that the corridor where she fell on
October 1, 2015 was busy and traveled by hundreds of people on a daily basis. She noted that
there had been numerous floods and water leaks on the floor as well as water drips from people
using the restrooms, spills of liquids including coffee and other beverages, and water tracks from
inclement weather. Appellant alleged that there were cracks, grooves, depressions, and pits in the
floor surface in which water or other liquids often collected. She repeated her statement that, on
October 1, 2015, as she walked to the restroom, she was feeling well, her gait was stead y and that
she was not weak or dizzy in any way. Appellant suddenly slipped and fell on the floor. She did
not know the cause of her slip, but asserted that it felt like she slipped due to water on the floor.
In a January 16, 2017 report, Matthias J. Mulvey, a professional building safety and code

4

consultant, noted that on November 4, 2016 he inspected the corridor where appellant fell on
October 1, 2015. He found deep erosion marks, pitting, and water stains from heavy pedestrian
traffic and water damage. Mr. Mulvey reported 20 feet of erosion marks and water staining
running in a line from the bathroom exit toward appellant’s office door. He noted that the depth
of the erosion and pitting was sufficient to allow for the pooling of liquid and that the existing
surface marks were consistent with liquid historically collecting and pooling in the pits and
depressions of the floor’s surface.
Appellant also resubmitted Ms. Sprangers’ October 1, 2015 note in which appellant
described a fall at work which resulted from a slip. She also provided discharge notes in which
Dr. Meda diagnosed a fracture of the distal fibular shaft and noted that she had a fall at work.
Appellant submitted Dr. Drapkin’s October 2, 2015 note describing her frequent falls for uncertain
reasons.
In a January 17, 2017 report, Dr. George P. Whitelaw, a Board-certified orthopedic
surgeon, reviewed appellant’s medical records and affidavit. He noted that syncope was a
temporary loss of consciousness or fainting due to other medical conditions. Dr. Whitelaw found
that there was no medical evidence that appellant had a diagnosis of a syncopal event and that
Dr. Meda explicitly denied that appellant had a history of syncope. He opined that appellant had
experienced a mechanical fall as her incident was consistent with slipping.
By decision dated July 7, 2017, OWCP denied modification of its prior decisions.
On July 5, 2018 appellant, through counsel, requested reconsideration and submitted
additional factual evidence.
In an October 1, 2015 incident report, the employing establishment described appellant’s
fall as losing her balance while trying to exit the building, striking both knees on the floor, and
complaining of left ankle pain.
Appellant’s husband completed a narrative statement on November 8, 2017 explaining that
appellant fell on October 1, 2015 in the basement of a building on the employing establishment’s
premises, approximately 25 feet from her office
K.H., the acting director of performance management at the employing establishment,
completed a statement on November 14, 2017 and reported that on October 1, 2015 he was
informed that appellant had fallen in a tunnel.
On November 24, 2017 K.S., patient safety officer at the employing establishment,
reported on October 1, 2015 appellant informed her that she had fallen and did not know how or
why. Appellant denied hitting her head or losing consciousness at any time. K.S. and K.H. helped
appellant onto her scooter and directed her to urgent care.
In a November 30, 2017 statement, J.W., an employing establishment nurse, reported that
she found appellant on her knees on October 1, 2015 outside her office and next to the exit door.
Appellant indicated that she had injured her left leg and discussed seeking treatment at urgent care.
J.W. noted that appellant did not fall on her face, but was on her knees in a sitting position holding
on to a railing.
5

On June 15, 2018 Dr. Whitelaw provided a correction to his January 17, 2017 report and
again opined that appellant’s incident was consistent with slipping and suffering a mechanical fall.
He noted that a review of the medical records established that she denied dizziness or weakness
prior to the fall. Dr. Whitelaw concluded that there was no syncopal event invo lved in the
October 1, 2015 fall.
By decision dated August 28, 2018, OWCP denied appellant’s claim, finding that the
evidence of record established that she sustained an idiopathic fall outside of the performance of
duty. It found that the medical record was consistent in reporting that she had a long history of
falling with a recent increase in frequency of falls, difficulty ambulating, and balance problems.
OWCP concluded that the mere fact that the etiology of appellant’s falls both past and present
remained undiagnosed does not make the fall sustained at work on October 1, 2015 unexplained.
It determined that both the medical and factual evidence clearly establish ed that a physical
condition preexisted and resulted in the fall on October 1, 2015. OWCP concluded that appellant’s
fall on October 1, 2015 was explained as it was one of a series of 20 falls sustained over the
preceding 6-month period resulting from preexisting pathology and must therefore be considered
as idiopathic.
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, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA. 7 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. The Board has made equally clear, the fact that

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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).
7

M.R., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); see Carol A.
Lyles, 57 ECAB 265 (2005).

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the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.8
This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.9 OWCP has the burden of proof to submit medical evidence showing the existence
of a personal, nonoccupational pathology if it chooses to make a finding that a given fall is
idiopathic in nature. 10 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained f all, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted and
caused the fall. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the October 1, 2015 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a predisposed
condition that caused appellant to collapse, whether there were any intervening circumstances or
conditions that contributed to her fall, and whether appellant struck any part of her body against a
wall, piece of equipment, furniture, or similar object as she fell. 12
The Board finds that the medical evidence establishes that appellant’s fall on October 1,
2015 was due to a personal, nonoccupational pathology without employment contribution. On
October 1, 2015 Dr. Secan reported that appellant did not walk well due to back issues.
Dr. Ngomba examined appellant on October 3, 2015 noting that she had fallen 20 times in the past
six months, and she had been diagnosed with optic neuritis. On October 2, 2015 Dr. Holstein
reported that appellant used a cane or walker due to severe knee degenerative joint disease.
Dr. Moray found on October 4, 2015 that her examination was consistent with peripheral
neuropathy or spinal stenosis. The Board, therefore, finds that the evidence of record is sufficient
to establish that appellant’s fall was caused by appellant’s preexisting conditions and thus, was
idiopathic.

8

M.R. and H.B., id.

9

H.B., id.; Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

10

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see also
Jennifer Atkerson, 55 ECAB 317 (2004).
11

M.R., supra note 7; P.N., Docket No. 17-1283 (issued April 5, 2018); John R. Black, 49 ECAB 624 (1998); Judy
Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
12

D.T., Docket No. 19-1486 (issued January 17, 2020); A.B., Docket No. 17-1689 (issued December 4, 2018); P.P.,
Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

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Further, the Board finds that the evidence of record is insufficient to show that appellant
experienced an intervention or contribution by any hazard or special condition of employment.
Appellant did not allege that she struck any object related to her employment when she fell to the
ground.13 The Board, therefore, finds that appellant’s fall on October 1, 2015, without any further
intervention or contribution by the employing establishment, is considered idiopathic and is
therefore noncompensable.14
Accordingly, appellant has not met her burden of proof to establish that she sustained an
injury in the performance of duty on October 1, 2015, as alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.15

13

P.N., supra note 11.

14

Id.

15

The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim.
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

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ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 08-888
Issued: August 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 7, 2006 and April 12, 2007 merit decisions denying her
claim for a July 24, 2006 employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on July 24, 2006.
FACTUAL HISTORY
On July 24, 2006 appellant, then a 45-year-old letter carrier, filed a traumatic injury claim
alleging that she sustained injury when she lifted and carried a 40-pound parcel on July 23, 2006.

She indicated that after she lifted the parcel she experienced pain in her low back which shot
down her right leg and to her right foot. Appellant stopped work on July 24, 2006.1
In a July 26, 2006 form report, a physician with an illegible signature listed the reported
date of injury as July 24, 2006 with the reported cause of injury as “picking up box.” The
physician diagnosed low back strain and indicated that appellant should not work for two days.
In a July 27, 2006 report, Dr. Richard L. Parker, an attending Board-certified orthopedic surgeon,
stated that appellant reported that she injured her back while delivering packages at work on
July 24, 2006. He noted that appellant described pain in her lumbar spine which radiated into
her right leg and denied any previous history of injury to the lumbar spine. On examination,
appellant exhibited pain, tenderness and spasm on palpation of her lumbar spine, but there was
no sensory or strength loss in her lower extremities. Dr. Parker diagnosed lumbar sprain/strain,
herniated nucleus pulposus, sciatic syndrome, myofascial strain and pelvis sprain/strain.
In several form reports dated July 24 and September 15, 2006, Dr. Parker listed the date
of injury as July 24, 2006 and the reported cause of injury as “lower back injury when lifting.”
He diagnosed low back strain and indicated that appellant was totally disabled for various
periods. In reports dated August 24 and October 19, 2006, Dr. Parker indicated that appellant
remained symptomatic and diagnosed low back derangement, right sciatica and disc herniation at
L4-5. The findings of a September 8, 2006 magnetic resonance imaging scan showed scoliotic
lumbar curvature, bulges at L2-3, L3-4 and L5-S1 and a herniation at L4-5.
In a September 27, 2006 form report, Dr. Parker listed the reported date of injury as
July 24, 2006 and diagnosed low back derangement and right sciatica. He checked a “yes” box
indicating that these conditions were caused or aggravated by the reported employment activity
and indicated that appellant was totally disabled from July 24, 2006 until an unknown date. In a
November 1, 2006 report, an Office medical adviser responded to several questions posed by the
Office claims examiner and indicated that appellant’s claimed back injury was not due to one
day of delivering packages.2
In a December 7, 2006 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained an injury in the
performance of duty on July 24, 2006. It found that the reports of Dr. Parker were not
sufficiently well rationalized to establish appellant’s claim.3
1

There is some indication in the record that appellant sustained an employment-related injury in January 2004 but
the record is unclear regarding the fact and nature of such a injury. She has not filed a claim for recurrence of
disability due to a January 2004 employment injury or any other employment injury and such a matter is not
currently before the Board. The record contains a report of a June 21, 2004 arthrogram surgical procedure appellant
underwent to evaluate her chronic right-sided sacroiliac pain.
2

In its questions for the Office medical adviser, the Office noted that appellant had surgery in 2004. In response
to a question regarding whether appellant could have experienced “residuals from 2004 concerning the back,” the
Office medical adviser stated, “yes, most likely.”
3

The Office indicated that Dr. Parker did not adequately explain why appellant’s claimed medical condition was
not due to a preexisting nonwork-related condition. It indicated that Dr. Parker did not mention appellant’s 1989
surgery.

2

In December 2006, appellant requested reconsideration of the December 7, 2006
decision. She contended that the basis for the December 7, 2006 decision was invalid because
the Office had incorrectly stated that she had back surgery in 1989. Appellant submitted medical
reports which had previously been submitted to the Office. In a November 13, 2006 report,
Dr. Parker diagnosed right-sided sciatic syndrome and disc herniation at L4-5.
In an April 12, 2007 decision, the Office affirmed its December 7, 2006 decision.4
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.8 Second, the employee must
submit evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.9 The term “injury” as defined by the Act, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to or contact
with, certain factors, elements or conditions.10

4

The Office indicated that it had inadvertently stated that appellant had surgery, an arthrogram procedure, in 1989
rather than in 2004. It noted that this typographic error did not change its determination that Dr. Parker’s opinion on
causal relationship was not sufficiently well rationalized to establish appellant’s claim. Appellant submitted additional
evidence after the Office’s December 7, 2007 decision, but the Board cannot consider such evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
5

5 U.S.C. §§ 8101-8193.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
10

Elaine Pendleton, supra note 6; 20 C.F.R. § 10.5(a)(14).

3

ANALYSIS
The Office accepted that appellant lifted packages weighing up to 40 pounds at work on
July 24, 2006 but found that she did not submit sufficient medical evidence to show that she
sustained injury to her back and right leg due to these activities. The Board finds that appellant
did not submit sufficient medical evidence to establish that she sustained an injury in the
performance of duty on July 24, 2006.
Appellant submitted a September 27, 2006 form report in which Dr. Parker, an attending
Board-certified orthopedic surgeon, listed the reported date of injury as July 24, 2006 and
diagnosed low back derangement and right sciatica.11 Dr. Parker checked a “yes” box indicating
that these conditions were caused or aggravated by the reported employment activity and
indicated that appellant was totally disabled from July 24, 2006 until an unknown date. The
Board has held, however, that when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, that opinion has little probative value and is insufficient to
establish causal relationship.12 Appellant’s burden includes the necessity of furnishing an
affirmative opinion from a physician who supports his conclusion with sound medical reasoning.
As Dr. Parker did no more than check “yes” to a form question, his opinion on causal relationship
is of little probative value and is insufficient to discharge appellant’s burden of proof.
Dr. Parker did not describe the accepted employment incident in any detail13 and did not
describe the mechanism through which it caused appellant to sustain a back or right leg injury.
His opinion is of limited probative value for the further reason that it is not based on a complete
and accurate factual and medical history.14 Dr. Parker did not discuss appellant’s preexisting
back and right leg conditions or explain why such nonwork-related conditions would not have
been the cause for her complaints in 2006. He submitted other reports in which he listed the date
of injury as July 24, 2006, diagnosed various back conditions and recommended total disability.
However, none of these reports contains a rationalized medical opinion addressing how
appellant’s back and right leg conditions were caused or aggravated to the accepted employment
incident.15 Appellant did not submit any medical report containing a rationalized opinion on

11

In other reports, Dr. Parker listed the reported cause of the claimed July 24, 2006 injury as “delivering
packages” or “lifting.”
12

Lillian M. Jones, 34 ECAB 379, 381 (1982).

13

For example, Dr. Parker did not describe the amount of weight that appellant carried on July 24, 2006 or how
long she carried it.
14

See William Nimitz, Jr., 30 ECAB 567, 570 (1979) (finding that a medical opinion on causal relationship must be
based on a complete and accurate factual and medical history).
15

Appellant argued that the basis for the December 7, 2006 decision was invalid because the Office had
incorrectly stated that she had back surgery in 1989. The Office later acknowledged that it had inadvertently stated
that appellant had surgery, an arthrogram procedure, in 1989 rather than in 2004. The Board notes that this typographic
error would not change the fact that appellant failed to submit medical evidence containing a well-rationalized opinion
relating her claimed conditions to the accepted employment factors.

4

causal relationship and the Office properly denied her claim for a July 24, 2006 employment
injury.16
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on July 24, 2006.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 12, 2007 and December 7, 2006 decisions are affirmed.
Issued: August 25, 2008
Washington, DC

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

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

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

16

In a July 26, 2006 form report, a physician with an illegible signature listed the reported the date of injury as
July 24, 2006 with the reported cause of injury as “picking up box.” The physician diagnosed low back strain and
indicated that appellant should not work for two days. However, the physician did not provide a clear opinion on
causal relationship.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 20-0448
Issued: March 4, 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 December 23, 2019 appellant filed a timely appeal from a December 3, 2019 merit
decision of the Office of Workers’ Compensation Programs. 1 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
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 18,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 20-0448 (issued November 18, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP appellant received an overpayment of compensation in
the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019 because she
continued to receive disability compensation following her return to work; (2) whether it properly
found that appellant was at fault in the creation of the overpayment and, therefore, precluded from
waiver of recovery; and (3) whether OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 24-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2017 she sustained a left knee injury when her foot hit the bottom
of a trailer and her knee buckled back while in the performance of duty. She stopped work on
July 31, 2017. OWCP initially accepted the claim for left knee contusion, sprain, effusion, and
later expanded the acceptance of the claim to include a left knee lateral meniscus tear. It paid
appellant wage-loss compensation on the supplemental rolls as of September 17, 2017 and on the
periodic rolls as of November 12, 2017.
OWCP advised appellant on September 28, 2017 that she was expected to return to work
as soon as she was able, and it was her responsibility to advise the employing establishment once
her physician found her capable of returning to work. It also advised appellant that once she
returned to work she should notify OWCP and return payment for any period worked to prevent
an overpayment of compensation. OWCP advised appellant that, if she worked during any portion
of the covered period and compensation payments were received via either paper check or for
payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP even if
she had already advised OWCP that she was working.
The employing establishment offered appellant a full-time modified assignment (limited
duty) as a mail processing clerk on October 4, 2018, which appellant accepted on
October 10, 2018.
In an e-mail to OWCP dated January 23, 2019, a health and resource management
specialist at the employing establishment noted that appellant had returned to work on
October 12, 2018.
In an automated compensation payment system (ACPS) worksheet dated January 28, 2019,
OWCP calculated that appellant’s overpayment amount for the period October 12, 2018 through
January 5, 2019 was $6,905.83. It noted that appellant was paid $158.86 for the period October 12
through 13, 2018 and $2,248.99 for each subsequent 28 -calendar-day period through
January 5, 2019.
In a preliminary overpayment determination dated July 8, 2019, OWCP advised appellant
that an overpayment of compensation in the amount of $6,905.83 had been created because she
returned to work full time on October 12, 2018, but continued to receive wage-loss compensation
through January 5, 2019. Appellant’s 28-day net compensation payment for September 16
through October 13, 2018 was $2,224.07, while her 28-day net compensation payment for the three

2

subsequent 28-day periods through January 5, 2019 was $2,248.99. OWCP provided its
computation of the amount of the overpayment for this period, dividing her 28-day compensation
during the relevant periods by 28 to arrive at a daily rate, then multiplying the daily rate by the
number of days appellant was overpaid. It made the preliminary finding that appellant was at fault
in the creation of the overpayment, as she accepted payments she knew or should have known to
be incorrect. OWCP advised appellant that she received a paper compensation check with the
printed period of payment and the amount paid and she should have rea sonably known that the
payment was incorrect because the dates overlapped with the period she worked ; therefore, she
accepted a payment she knew or reasonably should have known was incorrect. It afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
On August 2, 2019 appellant requested a prerecoupment hearing on an overpayment action
request form and contested the fact of the overpayment, the amount of the overpayment, and the
preliminary finding of fault, requesting a waiver. She completed an overpayment recovery
questionnaire (Form OWCP-20) and explained that she had reported her return to full-time work
in October 2018. Appellant noted that it took so long to “get my checks started” she believed the
checks were money she was due.
In a letter dated October 2, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Tuesday, November 19, 2019 at 2:30 p.m. Eastern Standard
Time (EST). The notice provided the appropriate toll-free number and passcode for the hearing.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated December 3, 2019, OWCP determined that appellant had abandoned her
request for a prerecoupment hearing. It indicated that appellant had received 30 days advanced
written notice of the hearing scheduled for November 19, 2019, but that she failed to appear.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to, or within 10 days after the hearing to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing. Consequently, appellant was deemed to have
abandoned her request for an oral hearing.
OWCP also finalized the preliminary overpayment determination that an overpayment of
compensation in the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019
was created. It found that appellant was at fault in the creation of the overpayment and required
recovery in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA4 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. 5 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
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. 7 OWCP regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,905.83 for the period October 12, 2018 through January 5, 2019 because she continued to
receive disability compensation following her return to work.
OWCP paid appellant wage-loss compensation for disability on the periodic rolls. The
evidence reflects that appellant returned to work, full time, on October 12, 2018. Appellant
continued to receive wage-loss compensation through January 5, 2019. A claimant is not entitled
to receive temporary total disability benefits and actual earnings for the same time period. 9
Accordingly, the Board finds that appellant received an overpayment of compensation.10
The record shows that OWCP calculated that, from October 12, 2018 through January 5,
2019, appellant received $6,905.83 in total net compensation, but was not entitled to any
compensation during this time period. OWCP explained that appellant was paid $158.86 for the
period October 12 through 13, 2018 and $2,248.99 for each subsequent 28 -calendar day period
through January 5, 2019.11 The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $6,905.83 for the period October 12,
2018 through January 5, 2019.
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 this subchapter or would be against

6

Id. at § 8129(a).

7

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

8

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.

9

Supra note 7.

10

J.M., Docket No. 17-1574 (issued February 8, 2018).

11

The daily rate for the period September 16 through October 13, 2018 was $79.43. The daily rate for the periods
during October 14, 2018 through January 5, 2019 was $80.32.

4

equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect. 14
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid. 15
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled. 16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
In order for it to establish that appellant was at fault in the creation of the overpayment of
compensation, OWCP must establish that, at the time appellant received the compensation check
in question, she knew or should have known that the payment was incorrect. 17
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, if he or she knows or should
have known that they were not entitled to such compensation, but decides nonetheless to cash or
deposit the check, the cashing or depositing of the check establishes fault.18
On September 28, 2017 OWCP advised appellant that she was to immediately inform it of
any return to work. It also advised appellant that if she continued to receive wage-loss
12

5 U.S.C. § 8129(b).

13

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

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

15

Id. at § 10.433(b).

16

Diana L. Booth, 52 ECAB 370 (2001).

17

J.H., Docket No. 17-0592 (issued May 1, 2018); Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

See J.H., id.; William F. Salmonson, 54 ECAB 152 (2002).

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compensation by check, but had worked during any period covered by a check, she had to return
the check, even if she had reported her return to work to OWCP. Thus, appellant should have
known that she could not receive wage-loss compensation by check after her return to work.
The Board finds that as the checks in question do not appear in the record, it is unable to
verify that the checks identified the period for which compensation was paid and , therefore, that
appellant should have known that the checks were compensation payments for the period following
which she had returned to work.
Accordingly, the Board finds that the case must be remanded to OWCP. OWCP shall scan
copies of the checks issued to appellant for the period October 12, 2018 through January 5, 2019
into to the case record. OWCP shall thereafter determine whether appellant knew or should have
known that she received an overpayment of compensation. OWCP shall then issue a new
preliminary overpayment determination regarding the issue of fault, with an overpayment action
request form, a Form OWCP-20 instructions for appellant to provide supporting financial
documentation. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,905.83 from October 12, 2018 through January 5, 2019. The
Board further finds, however, that this case is not in posture for decision as to whether appellant
was at fault in the creation of the overpayment.

19

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 4, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
STATION GREAT LAKES, Great Lakes, IL,
Employer
__________________________________________

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

Docket No. 18-0014
Issued: July 12, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant filed a timely appeal from a September 20, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted August 6, 2017 employment incident.
FACTUAL HISTORY
On August 9, 2017 appellant, then a 40-year-old firefighter, filed a traumatic injury claim
(Form CA-1) alleging that at noon on August 6, 2017, he felt muscle tightness and soreness in his
1

5 U.S.C. § 8101 et seq.

mid-back area after unloading and reloading firefighting equipment from one vehicle to another.
On the reverse side of the claim form, appellant’s supervisor noted that there were inconsistencies
in appellant’s description of what occurred, and that there was no medical evidence to support
continuation of pay.
In an e-mail dated August 9, 2017, another supervisor advised that he had spoken to a
coworker regarding appellant’s claim. The coworker indicated that appellant had mentioned to
him on the following Monday that his back was stiff, and that he thought he had slept on it wrong.
By development letter dated August 16, 2017, OWCP advised appellant that the evidence
of record was insufficient to establish his claim. It noted that it had not received any medical
evidence in support of his claim. OWCP also requested additional factual information regarding
the alleged injury. It afforded appellant 30 days to submit the requested information and medical
evidence.
In a narrative statement dated September 1, 2017, appellant recalled that, on August 6,
2017, his supervisor directed him and his crew to unload their fire engine of all its equipment,
which required removing pieces of heavy equipment from the vehicle and placing them on the
ground; an activity involving lifting, twisting, and turning. Shortly after completing the task,
appellant’s mid-back began to tighten up, and he began experiencing pain and soreness. By that
evening, the pain had increased considerably, and appellant notified his supervisor he might fill
out a Form CA-1 if his back pain did not subside. That night, while sleeping, appellant kept
awakening due to the pain and stiffness. The next morning, August 7, 2017, his back felt slightly
better after he got up and moved around. However, through the course of that day’s work shift,
his back began to worsen again. That night appellant slept in a different bed than his own, and he
awoke multiple times in pain. The following morning, August 8, 2017, he was in severe pain and
was unable to move or sit properly without experiencing back pain. Appellant notified the onduty shift supervisor that his pain had not subsided, but rather had gotten a lot worse and that he
was unable to finish his shift. Appellant then completed a Form CA-1 and left to see his physician.
He explained that, from the time of the injury until he left, he remained on duty the entire time.
During that period appellant went on multiple emergencies while wearing full personal protective
equipment (PPE) weighing 70 pounds. Appellant also stated that he slept in different beds, both
of which contributed to the pain and tightness in his back. He noted that he had not sustained any
other injury or disability during this time or before the August 6, 2017 employment incident.
In a report dated August 8, 2017, Dr. Syeda Farheen Ali, an internist, assessed appellant
with upper back pain. She noted that on August 6, 2017, appellant felt his mid-back tighten up,
and that when he awoke, he could barely move. Appellant noted that he did not recall injuring it,
but that earlier in the day he was loading trucks with heavy equipment. Dr. Ali reported that he
did feel a back spasm at that time, but did not pay attention to it. She noted tenderness and spasm
of the thoracic back on examination.
In an August 23, 2017 attending physician’s report (Form CA-20), Dr. Ali assessed
appellant with spasm of the upper (thoracic) back and opined that his condition was caused by
unloading trucks while on duty. She indicated that he was totally disabled from work for the period
August 8 through 15, 2017, but could resume regular work effective August 16, 2017. In an

2

August 23, 2017 work capacity evaluation (Form OWCP-5c), Dr. Ali noted that appellant was
capable of performing his usual job without restrictions.
By decision dated September 20, 2017, OWCP denied appellant’s claim. It found that
although the evidence of record established that the employment incident occurred as alleged, it
was insufficient to establish a diagnosed medical condition. OWCP explained that “pain” was a
symptom, not a diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and

2

Id.

3

20 C.F.R. § 10.115(e), (f); J.O., Docket No. 18-0057 (issued May 29, 2018); see Jacquelyn L. Oliver, 48 ECAB
232, 235-36 (1996).
4

See J.O., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

5

See J.O., id.; John J. Carlone, 41 ECAB 354 (1989).

6

See J.O., id.; Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

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must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
Appellant claimed to have injured his mid-back on August 6, 2017 while unloading and
reloading fire equipment from one vehicle to another in the performance of duty. By decision
dated September 20, 2017, OWCP denied his traumatic injury claim, finding that he had not
submitted evidence of a diagnosed medical condition in connection with the August 6, 2017
employment incident.
The Board finds that appellant has not submitted medical evidence from a physician
containing a medical diagnosis in connection with the August 6, 2017 employment incident.10
Appellant submitted reports from Dr. Ali dated August 8 and 23, 2017, containing assessments of
upper back pain and spasm of the upper back, respectively.
The Board has held that pain and spasm are descriptions of symptoms and are not, in
themselves, considered firm medical diagnoses.11 Dr. Ali’s descriptions of appellant’s upper back
pain and spasm are, therefore, insufficient to establish a firm medical diagnosis in connection with
the accepted employment incident.12 As such, the Board finds that appellant has not submitted
sufficient medical evidence to establish his claim for compensation.
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 his burden of proof to establish a traumatic
injury causally related to the accepted August 6, 2017 employment incident.

9

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

10

See L.F., Docket No. 17-1511 (issued November 28, 2017); J.P., Docket No. 14-0087 (issued March 14, 2014).

11

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-0881 (issued August 1, 2007) (regarding spasm).
12
Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).

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ORDER
IT IS HEREBY ORDERED THAT the September 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 07-527
Issued: June 8, 2007

Case Submitted on the Record

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

JURISDICTION
On December 18, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 27, 2006 merit decision denying her claim on the grounds
that it was not timely filed and a December 6, 2006 nonmerit decision denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether appellant’s claim was timely filed pursuant to 5 U.S.C.
§ 8122(a); and (2) whether the Office properly denied her request for merit review under
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 23, 2006 appellant, a 55-year-old secretary, filed an occupational disease claim
(Form CA-2) for a right shoulder injury. She stated that she developed a labral tear in her right
shoulder while pitching mail and first became aware of the condition and its relationship to her

employment on December 1, 1988. Appellant also advised that she did not report her shoulder
condition when she first noticed it as she thought only traumatic injuries were reported. By letter
dated July 17, 2006, the Office informed appellant of the type of evidence needed to support her
claim.
In a July 18, 2006 statement, Russell Fontaine, manager of customer services for the
employing establishment, indicated that appellant worked as a part-time regular clerk from
April 1988 through August 1993 for four hours per day, five days a week. He indicated that her
duties included opening up the building, opening up the safes, signing for registered mail, sorting
mail and occasionally working the window unit. Mr. Fontaine stated that appellant’s tasks
involved pitching mail, which involved breaking the mail into sections and placing it into the
mail box where it belonged.
In an August 24, 2006 statement, appellant noted that she was treated for tendinitis and
lived with her discomfort when her condition did not improve. She advised that a recent
magnetic resonance imaging (MRI) scan showed a very old injury. Appellant stated that the only
injury to her shoulder she had experienced was in 1988. She stated that, because her shoulder
was a result of a repetitive motion problem and not a traumatic injury, she did not realize that it
had to be reported to her supervisor at that time.1
In an August 9, 2006 report, Dr. Kenneth R. Catallozzi, a Board-certified orthopedic
surgeon, stated that it was possible that a superior labral tear or rotator cuff pathology could be
related to repetitive motion activities and could be the source and cause of appellant’s current
pain and tenderness. However, he stated that he could not answer the question of causality of her
current condition in terms of probability due to the information and time frame he had.
By decision dated September 27, 2006, the Office denied the claim for a right shoulder
injury as not timely filed.
In a September 29, 2006 letter, appellant requested reconsideration of the Office’s
decision. She reiterated that her only injury had occurred in 1988 and that she did not realize
that she had to notify her supervisor at that time as it was a repetitive motion problem. Appellant
additionally argued that the case of Willis E. Bailey2 which the Office had cited would not apply
to an injury that occurred prior to the date of that decision. She also argued that, as she started
working for Mr. Fontaine in 1996, he could not have possibly known her work duties in 1988.3
Unsigned progress notes dated March 13 and May 3, 1989 from Dr. Steven McCloy4 were
1

Copies of a July 21, 2006 letter from Norma Johnson, an injury compensation specialist, regarding a June 22,
2006 electronic mail exchange between herself and appellant along with a copy of the June 22, 2006 email were
submitted. The letter and email pertained to appellant’s query to Ms. Johnson regarding whether she could file a
claim.
2

49 ECAB 509 (1998).

3

Appellant provided the names of the manager and supervisor she had in 1988.

4

Dr. McCloy’s credentials were not of record.

2

submitted along with an unsigned progress note of February 28, 1989 from Carolyn Hiscox, a
nurse practitioner.
By decision dated December 6, 2006, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT – ISSUE 1
In cases of injury on or after September 7, 1974, section 8122(a) of the Act5 provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) [T]he immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) [W]ritten notice of injury or death as specified in section 8119 of this title
was given within 30 days.”6
Section 8119 provides: a notice of injury or death shall be given within 30 days after the
injury or death; be given to the immediate superior of the employee by personal delivery or by
depositing it in the mail properly stamped and addressed; be in writing; state the name and
address of the employee; state the year, month, day and hour when and the particular locality
where the injury or death occurred; state the cause and nature of the injury or in the case of
death, the employment factors believed to be the cause; and be signed by and contain the address
of the individual giving the notice.7 Actual knowledge and written notice of injury under section
8119 serve to satisfy the statutory period for filing an original claim for compensation.8
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.9 For actual knowledge of a supervisor to be
regarded as timely filing, an employee must show, not only that the immediate superior knew
that he or she was injured, but also knew or reasonably should have known that it was an on-thejob injury.10
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8122(a).

7

Larry E. Young, 52 ECAB 264 (2001).

8

Laura L. Harrison, 52 ECAB 515 (2001).

9

Gerald A. Preston, 57 ECAB ___ (Docket No. 05-1198, issued December 15, 2005); L.C., 57 ECAB ___
(Docket No. 06-1190, issued September 18, 2006); Delmont L. Thompson, 51 ECAB 155 (1999).
10

Duet Brinson, 52 ECAB 168 (2000).

3

In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between her condition and her employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of her federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.11 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.12 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.13
The time limitations do not begin to run against any individual whose failure to comply is
excused by the Secretary on the grounds that such notice could not be given because of
exceptional circumstances.14
ANALYSIS -- ISSUE 1
Appellant filed a claim for a right shoulder injury on June 23, 2006. She advised that she
became aware of her shoulder condition and its relationship to her work as a part-time regular
clerk on December 1988 while pitching mail. The record establishes that, from April 1988 to
August 1993, appellant worked as a part-time regular clerk which involved the task of pitching
mail. As the time for filing a claim began to run on the date of her last injurious exposure to the
implicated work factor, the three-year period for filing expired no later than August 1996. Since
appellant did not file her claim for a right shoulder injury until June 23, 2006, her claim was filed
outside the three-year time limitation period.15
Although appellant’s claim would be regarded as timely under section 8122(a)(1) of the
Federal Employees’ Compensation Act if her immediate superior had actual knowledge of the
injury or death within 30 days, there was no evidence that her supervisor had actual knowledge
of the injury within 30 days. She advised that she did not report her right shoulder condition
until she filed her claim on June 23, 2006. Appellant did not otherwise present any evidence
establishing timely actual knowledge of her immediate superior. Thus, she has not established
actual knowledge by her supervisors of her work-related condition within 30 days and, therefore,
has not established a timely claim.16
11

Larry E. Young, supra note 7.

12

Id.

13

Debra Young Bruce, 52 ECAB 315 (2001).

14

5 U.S.C. § 8122(d)(3).

15

5 U.S.C. § 8122(b).

16

Likewise, there is also no evidence that written notice of the injury was given within 30 days after injury
pursuant to 5 U.S.C. § 8119. See 5 U.S.C. § 8122(a)(2).

4

Appellant explained that she did not realize that her right shoulder condition needed to be
reported to her supervisor in 1988 as her injury was a repetitive motion problem. The Board,
however, has held that unawareness of possible entitlement, lack of access to information and
ignorance of the law or of one’s obligations under it do not constitute exceptional circumstances
that could excuse a failure to file a timely claim.17 Appellant noted that she was aware of a
relationship between her employment and her right shoulder condition as of December 1, 1988.
Her last exposure to the implicated work factor of pitching mail was August 1993. However,
appellant did not file a claim until June 23, 2006. Her lack of awareness of compensation under
the Act or that she was eligible to receive benefits do not excuse her failure to timely file an
appeal. Appellant did not submit any probative evidence that her circumstances were
exceptional such that she could be excused from the three-year filing requirement.
The Board accordingly finds that appellant’s claim was not timely filed under 5 U.S.C.
§ 8122.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.18 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.19
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.20 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.21
ANALYSIS -- ISSUE 2
In her request for reconsideration, appellant did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. She advised that her only injury had occurred in 1988
and that she did not realize that she had to notify her supervisor at that time as it was a repetitive
motion problem. This argument is identical to her previous arguments, which the Office
addressed in its September 27, 2006 decision. Appellant additionally advanced arguments which
17

Ralph L. Dill, 57 ECAB ___ (Docket No. 05-1620, issued December 6, 2005).

18

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

19

Howard A. Williams, 45 ECAB 853 (1994).

20

Donna L. Shahin, 55 ECAB 192 (2003)

21

20 C.F.R. § 10.608.

5

have no basis in legal validity. She argued that the case of Willis E. Bailey22 which the Office
cited, would not apply to an injury that occurred prior to the date of that decision. However, this
assertion did not show that the Office erroneously applied or interpreted a specific point of law
as appellant did not cite any authority supporting her assertion and she did not otherwise explain
how this was relevant to the underlying point at issue -- whether she timely filed an occupational
disease claim. Appellant additionally argued that Mr. Fontaine could not have possibly known
her work duties in 1988. While Mr. Fontaine may not have been appellant’s supervisor in 1988,
he was able to review employing establishment records and provide a description of the duties
for an individual in appellant’s job as a part-time regular clerk and also report the time period in
which she performed such duties. Appellant’s arguments have no color of legal validity and,
therefore, are insufficient to require the Office to reopen her claim for merit review.23 The Board
finds that she is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).24
Appellant also failed to satisfy the third requirement listed in section 10.606(b)(2). She did
not submit any relevant and pertinent new evidence not previously considered by the Office.
The evidence that appellant submitted is not pertinent to the issue on appeal. While the progress
notes of Dr. McCloy and nurse practitioner, Carolyn Hiscox, support that appellant underwent
treatment for her right shoulder condition in 1989, such evidence does not address or contain any
relevant information pertinent to the issue of whether appellant timely filed a claim for a right
shoulder injury. The Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.25
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied her request for reconsideration.

22

Supra note 2.

23

Marion Johnson, 40 ECAB 735 (1989).

24

20 C.F.R. § 10.606(b)(2).

25

See David J. McDonald, 50 ECAB 185 (1998).

6

CONCLUSION
The Board finds that appellant has not established that her right shoulder condition claim
was timely filed pursuant to section 8122 of the Act. The Board further finds that the Office
properly denied appellant’s request for merit review.
ORDER
IT IS HEREBY ORDERED THAT the December 6 and September 27, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Joyce L. Ducey, for the appellant
Office of Solicitor, for the Director

Docket No. 09-891
Issued: December 4, 2009

Case Submitted on the Record

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

JURISDICTION
On February 19, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 11, 2008. The record also contains a
decision dated January 12, 2009 denying appellant’s request for an oral hearing as untimely.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has established an emotional condition causally
related to compensable factors of her federal employment; and (2) whether the Office properly
denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On June 27, 2008 appellant, then a 42-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she sustained stress as a result of a verbal threat by her supervisor on
June 27, 2008. In a narrative statement, she alleged that on June 27, 2008 she was in a room
with two coworkers discussing “what was happening on the ward” when a supervisor, Latanya

Johnson, came in and told appellant in a “demanding and hostile voice” to come to her office.
Appellant stated that she told the supervisor she wanted a union representative and the supervisor
told her it was a direct order. She then turned on a tape recorder to listen to the morning report,
and again was told in an angry and hostile voice to turn the recorder off and come to the
supervisor’s office. According to appellant, a security officer arrived shortly thereafter, and she
became upset and decided to go to the employing establishment health unit. The supervisor
stated that she did not have the paperwork for the health unit, and told appellant to stay until she
retrieved the paperwork. Appellant stated that the supervisor again became angry and told
appellant to stay near the elevators until she returned.
A June 27, 2008 statement from a coworker, Linda Mitchell, indicated that on that day
Ms. Johnson had reported an employee who was being verbally inappropriate and threatening.
She stated that Ms. Johnson told her she had heard appellant speaking loudly and cursing behind
a closed door, and she came in the room to ask to meet with her. Ms. Johnson reported that
appellant would not meet with her without a union representative, and stated that she was giving
her a direct order. According to Ms. Mitchell, the supervisor stated that “at his point [appellant]
stood up and appeared as if she was coming toward her. [A coworker] gently pushed
Ms. Johnson from the room.”
A security officer’s report indicated that appellant acknowledged that she may have used
profanity in the discussion with coworkers, but it was not directed at a specific staff member. He
indicated that Ms. Johnson stated that she could hear appellant speaking through the closed door
and told appellant to report to her office. The security officer stated that, after speaking with
participants, he felt there was a misunderstanding between appellant and the supervisor.
By decision dated August 11, 2008, the Office denied the claim for compensation. It
found that no compensable work factors had been established.
On September 23, 2008 appellant faxed a request for a hearing before an Office hearing
representative. By decision dated January 12, 2009, the Office determined the request was
untimely. It further stated that it had considered appellant’s request and found that the issue
could equally well be addressed by requesting reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
descriptions of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

2

of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.3
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.4 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.5
ANALYSIS -- ISSUE 1
The initial question presented is whether appellant has alleged and substantiated a
compensable work factor. Not every incident that is connected to employment will give rise to
coverage under the Act. Appellant has alleged that she sustained stress from a June 27, 2008
incident with a supervisor. The statement from coworker Ms. Mitchell and from the security
office confirms that the supervisor heard appellant speaking and using profanity in a discussion
with coworkers. The supervisor entered the room, asked appellant to accompany her to her
office, with appellant asking for a union representative. Ms. Johnson then gave appellant a direct
order to come to her office. Appellant did not leave the room and security personnel were called.
The Board has held that verbal abuse may constitute a compensable work factor.6 Not
every statement, however, that is uttered in the workplace will give rise to a compensable work
factor.7 In this case, appellant alleged that the supervisor spoke to her in a “hostile” tone when
she ordered her to come to the supervisor’s office. While appellant may have felt uncomfortable
or been offended by the tone of her supervisor, it does not rise to the level of verbal abuse.8
Even if the supervisor had raised her voice, this would not in itself establish a compensable work
factor.9 There is no evidence that the actions or words of the supervisor were erroneous or
abusive. The supervisor was responding to inappropriate language by appellant and to

3

Lillian Cutler, 28 ECAB 125 (1976).

4

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

5

Margreate Lublin, 44 ECAB 945, 956 (1993).

6

David W. Shirey, 42 ECAB 783 (1991).

7

David C. Lindsey, Jr., 56 ECAB 263 (2005).

8

See V.W., 58 ECAB
486 (2000).
9

(Docket No. 07-234, issued March 22, 2007); Denis M. Dupor, 51 ECAB 482,

Beverly R. Jones, 55 ECAB 411 (2005); Karen K. Levene, 54 ECAB 671 (2003).

3

appellant’s failure to leave the room when directed. The evidence does not establish that the
supervisor acted unreasonably in this case.10
On appeal, appellant states there was medical evidence submitted supporting the claim,
but it is well established that the medical evidence is not considered until a compensable work
factor has been established.11 Once a compensable factor is substantiated by the record, then the
issue is whether there is an injury causally related to a compensable factor. The Board finds that
in this case appellant did not allege and substantiate a compensable work factor, and therefore
the medical evidence on causal relationship is not relevant. Appellant did not meet her burden of
proof to establish an injury in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary
under subsection (a) of this section is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary….”
If the request is not made within 30 days or if it is made after a reconsideration request, a
claimant is not entitled to a hearing as a matter of right.12 The Board has held that the Office, in
its broad discretionary authority in the administration of the Act,13 has the power to hold hearings
in certain circumstances where no legal provision was made for such hearings and that the Office
must exercise this discretionary authority in deciding whether to grant a hearing.14 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.15
ANALYSIS -- ISSUE 2
The evidence indicated that appellant sent her hearing request by facsimile transmission
on September 23, 2008.16 As noted above, she is entitled to a hearing as a matter of right if she
submits a request within 30 days of the August 11, 2008 Office decision. Appellant did not
10

In determining whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably. Ruth S. Johnson, 46
ECAB 237 (1994).
11

See Robert Breeden, 57 ECAB 622, 629 (2006); Margaret S. Krzycki, 43 ECAB 496 (1992).

12

Claudio Vazquez, 52 ECAB 496 (2001).

13

5 U.S.C. §§ 8101-8193

14

Marilyn F. Wilson, 52 ECAB 347 (2001).

15

Claudio Vazquez, supra note 12. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Review of the Written Record, Chapter 2.1601.4(b)(3) (June 1997).
16

The record indicates that five pages were sent to the Office on September 23, 2008 by facsimile transmission,
including a request for an oral hearing.

4

submit the request within 30 days, and therefore she is not entitled to a hearing as a matter of
right.
In this case, the Office advised appellant that she could submit additional relevant
evidence on the issue through the reconsideration process. This is a proper exercise of the
Office’s discretionary authority.17 The Board finds that the Office properly denied appellant’s
untimely hearing request in this case.
CONCLUSION
The Board finds that appellant did not establish an emotional condition causally related to
a compensable work factor. The request for a hearing before an Office hearing representative
was untimely filed and was properly denied by the Office.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 12, 2009 and August 11, 2008 are affirmed.
Issued: December 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

See Mary E. Hite, 42 ECAB 641, 647 (1991).

5