United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 12-594
Issued: October 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2012 appellant filed a timely appeal of an August 16, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision finding an overpayment.1 Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3,
the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$7,596.84 for the period October 31 to December 31, 2009; and (2) whether recovery of the
overpayment should be waived as appellant was without fault.

1

OWCP issued a final decision on January 23, 2012 granting appellant a schedule award. As this decision was
not issued prior to the postmark of appellant’s appeal to the Board, the Board will not address this issue on appeal.
2

5 U.S.C. § 8101 et seq.

On appeal, appellant alleged that repayment would cause hardship as he had $63.27 extra
income over expenses. He stated that requiring repayment is against equity and good
conscience.
FACTUAL HISTORY
On February 9, 1998 appellant, then a 46-year-old rural carrier, filed an occupational
disease claim alleging that he developed a right elbow condition due to sorting and handling mail
in his delivery vehicle. He returned to full duty on February 16, 1998. OWCP accepted this
claim for right lateral epicondylitis on May 13, 1998.
Appellant filed a traumatic injury claim on February 4, 2000 alleging that he slipped and
fell on ice injuring his head, neck and shoulders. OWCP accepted his claim for closed head
injury, right shoulder strain and contusion and cervical strain on March 15, 2000. Appellant
underwent an anterior cervical discectomy and fusion at C5-6 with allograft and synthes plate on
June 5, 2000. He underwent removal of the anterior cervical plate, partial C5 and C6
carpectomies, anterior cervical fusion C5-6 and harvest of right iliac crest graft on May 31, 2001.
Appellant returned to work on November 5, 2002.
Appellant underwent right shoulder arthroscopy with subacrominal decompression, distal
clavicle excision and biceps tenodesis on July 6, 2009 and stopped work on that date. OWCP
began compensation payments to him for total disability on July 6, 2009. By decision dated
September 14, 2009, it accepted that appellant sustained the additional conditions of aggravation
of a complete rupture of his left rotator cuff. OWCP entered him on the periodic rolls on
September 16, 2009.
On November 19, 2009 OWCP was informed that appellant opted for an early retirement
from the employing establishment. In a letter dated December 9, 2009, appellant requested
information regarding switching his benefits from OWCP, i.e., to the Office of Personnel
Management (OPM). He also requested a schedule award on that date. In a letter dated
January 14, 2010, OWCP informed appellant of his rate of compensation and the necessity to
elect between FECA and OPM benefits. It stated, “Annuity benefits paid by OPM (including
any lump sum payment made as a part of an alternative annuity…) and benefits for wage loss
paid by OWCP are not payable for the same period of time.” In a separate letter of the same
date, OWCP informed appellant that he was not entitled to receive both compensation benefits
and a schedule award concurrently from OWCP. It requested a medical report regarding his
permanent impairment. Appellant elected FECA benefits effective January 25, 2010.
The employing establishment provided a notification of personnel action effective
October 31, 2009 indicated that appellant’s last day in pay status was July 3, 2009 and that he
was to be paid for all accumulated leave to which he was entitled. OWCP completed a memo to
file on March 22, 2010 and noted that appellant received a retirement incentive payment on
October 31, 2009 in the amount of $10,000.00. It noted that under FECA such separation
incentive payments constituted a dual benefit. OWCP in accordance with its procedure manual
calculated the overpayment.3 It noted that appellant received compensation for temporary total
3

Federal (FECA) Procedure Manual Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17(d) (June 2009).

2

disability and that he received a $10,000.00 incentive payment with an effective date of
October 31, 2009. OWCP stated that he had a weekly salary of $1,143.61 with an effective pay
rate of July 6, 2009. It determined that appellant was not entitled to compensation for 8.74
weeks, the total amount of separation pay received, divided by the weekly salary. OWCP
determined that he received dual benefits from October 31 to December 31, 2009 or 8.74 weeks.
It provided appellant with a letter dated March 22, 2010 which included these calculations and
explanation.
In a preliminary determination dated March 29, 2010, OWCP found that appellant
received an overpayment of compensation in the amount of $7,596.84 because he received dual
benefits. By decision dated May 26, 2010, it found that he received an overpayment of
compensation in the amount of $7,596.84 as he received dual payments from OWCP and OPM.
OWCP found that appellant was not entitled to waiver of the overpayment as he did not provide
information that recovery would defeat the purpose of FECA or be against equity and good
conscience.
Appellant participated in a conference call on October 1, 2010. He provided financial
information including the names of his debtors. Appellant also provided billing statements.
In an Order Remanding Case dated December 14, 2010,4 the Board determined that in its
May 26, 2010 decision, OWCP did not follow its guidelines and procedures in determining
whether waiver of recovery of the overpayment was warranted under FECA and remanded the
case in order that OWCP could issue a new preliminary overpayment determination followed by
appropriate development and a new decision.
In a letter dated February 4, 2011, OWCP informed appellant of its preliminary
determination that he was overpaid in the amount of $7,596.84 due to a retirement incentive
payment which he received on October 31, 2009 in the amount of $10,000.00.5 It stated that this
payment constituted dual benefits and provided calculations of the amount of the overpayment.
OWCP stated that appellant was without fault in the creation of the overpayment as he was not
aware that his compensation benefits were paid incorrectly. It requested that he completed an
overpayment recovery questionnaire.
Appellant requested a prerecoupment hearing. He requested waiver of recovery of the
overpayment and stated that he was not aware that he could not receive his incentive payment
and his compensation benefits. Appellant submitted an overpayment recovery questionnaire
indicating that he received OPM benefits in the amount of $2,615.59 a month and that he
4

Docket No. 10-1711 (issued December 14, 2010).

5

OWCP rescinded the May 26, 2010 decision on June 23, 2010 after appellant filed his appeal to the Board. On
September 23, 2010 it issued another preliminary determination of overpayment due to an October 31, 2009
retirement incentive payment. OWCP noted that appellant had not received the overpayment recovery questionnaire
needed to determine waiver. It finalized this decision on November 1, 2010 finding that waiver was warranted. The
Board and OWCP may not simultaneously have jurisdiction over the same case. Because OWCP must review its
prior decision in order to determine whether appellant submitted additional new and relevant evidence, OWCP may
not issue a decision regarding the same issue on appeal before the Board. It therefore did not have the authority to
issue its June 23 and November 1, 2010 decisions. Arlonia B. Taylor, 44 ECAB 591, 597 (1993).

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supported his wife. He listed his expenses which included a mortgage payment of $1,285.59,
food expenses of $300.00, clothing expenses of $50.00, utilities of $310.00 and other expenses
of $340.00. Appellant listed his monthly debts as $184.40 to American Express, $155.00 to
Progressions CU, $54.00 to Capital One, $155.00 to Bank of America, $314.00 to Chase, $83.00
to Bank of Omaha and $368.44 car payment to BB&T. He listed his assets as a checking
account balance of $184.00, savings account balance of $50.00 and other personal property and
funds of $2,500.00. Appellant provided documentation of his monthly debts.
OWCP granted appellant a schedule award for 12 percent loss of use of his right arm on
March 15, 2011. On April 21, 2011 appellant received a schedule award for an additional two
percent impairment of his right arm. By decision dated May 5, 2011, OWCP modified the
April 21, 2011 decision to reflect two percent impairment for the left upper extremity. Appellant
requested an oral hearing of his schedule award decisions on May 18, 2011.
Appellant testified at his prerecoupment hearing on June 7, 2011. He agreed that he
received an incentive that was a double payment. Appellant stated that he was without fault in
the creation of the overpayment as he spoke to persons with OWCP and OPM and was not
informed that the incentive would result in dual benefits. He stated that he should not have to
repay the overpayment. Appellant noted that OWCP had issued decisions stating that waiver
was appropriate in his case, which were voided by his appeal to the Board. OWCP’s hearing
representative requested additional financial information from appellant as he had received
schedule awards.
Appellant provided additional financial information on June 16, 2011 and stated that his
income from OPM was $2,615.00 and that his expenses included a mortgage payment of
$1,276.73, utilities of $425.00, automobile expenses of $300.00, food expenses of $300.00,
clothing costs of $75.00, medical expenses of $225.00 as well as outstanding monthly debts
consisting of six credit cards with individual minimum payments of $100.00, $144.00, $328.00,
$75.00, $77.00 and $52.00. He calculated his expenses at $2,501.73.6
Appellant stated that he paid for his car and some credit card debt with his schedule
award payments. He noted that his wife was scheduled for two surgeries in the next three
months. Appellant noted that he had $200.00 in his checking account and $50.00 in his savings
account.
By decision dated August 16, 2011, OWCP’s hearing representative found that appellant
received dual benefits in the amount of $7,596.84 as he received total disability compensation
and $10,000.00 retirement incentive pay. He found that appellant was without fault in the
creation of the overpayment. However, the hearing representative found that the overpayment
must be recovered. He found that appellant had a resource base of $250.00, less than $8,000.00,
but that appellant’s income exceeded his expenses by $113.27, more than the $50.00 allowed by
OWCP’s procedure manual. The hearing representative noted that appellant had not alleged that
he relied on the overpayment to his detriment. As appellant had sufficient resources, he
determined that the overpayment was not subject to waiver and that appellant must make
repayment. The hearing representative found that, as appellant did not have continuing
6

The Board calculates appellant’s listed expenses as $3,377.73.

4

compensation benefits, the overpayment should be refunded immediately to avoid interest
penalties.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA7 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.8 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States.9 Section 10.421
of the implementing regulations provide that an employee may not receive compensation for
total disability concurrently with separation pay (which is also known as retirement incentive
pay).10 OWCP discovers concurrent receipt benefits it must declare an overpayment in
compensation and give the usual due process rights.11
Employing establishments may offer separation pay or buyouts to encourage employees
to leave federal employment voluntarily. Some separation payments are based on a specific
number of weeks of pay while others are capped at a specified amount of money. In order to
apply uniform standards to all claimants, however, offsets for both types of payments should be
computed in the same manner regardless of the way an employing establishment has offered
separation pay.12 Whether separation pay is based on weeks of pay or a specified dollar amount,
compensation should be suspended for the number of weeks of salary that the separation pay
represents.13
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $7,596.84 due to a retirement incentive of $10,000.00 received on October 31, 2009. OWCP
provided him with calculations dividing the amount of the separation incentive, $10,000.00, by
his weekly salary, $1,143.61, finding an overpayment of 8.74 weeks or $7,596.84. Appellant has
not contested the fact or amount of the overpayment. The Board finds that OWCP properly
determined the fact and amount of the overpayment received by appellant.
7

5 U.S.C. §§ 8101-8193, 8102.

8

Id.

9

Id. at § 8116(a).

10

20 C.F.R. § 10.421(c).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

12

See L.J., Docket No. 10-510 (issued October 1, 2010).

13

Where severance or separation pay is based on weeks of pay, compensation should he suspended for the period
in question effective the date of retirement or separation. Where the payment is based on an amount of money, the
claims examiner is to calculate the number of week’s worth of salary that the separation pay represents and suspend
compensation for the number of weeks calculated. Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual
Benefits, Chapter 2.1000.17(d) (June 2009); see R.H., Docket No. 08-2025 (issued July 20, 2009).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.14 The only exception to this requirement that an
overpayment must be recovered as set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise it discretion to determine whether
recovery of the overpayment would “defeat the purpose of [FECA] or would be against equity
and good conscience,” pursuant to the guidelines provided in the implementing federal
regulations.
Section 10.436 of the implementing regulations15 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of her current income, including compensation benefits, to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $8,000.00 for an individual with one dependant.16 An individual is deemed to
need substantially all of his or her current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00. In other
words, the amount of monthly funds available for debt repayment is the difference between
current income and adjusted living expenses (i.e., ordinary and necessary living expenses plus
$50.00).17
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.18 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.19
14

5 U.S.C. § 8129(a).

15

20 C.F.R. § 10.436.

16

Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
17

Id.

18

20 C.F.R. § 10.437(b).

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3) (October 2004).

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ANALYSIS -- ISSUE 2
Although appellant was found without fault in creating the $7,596.84 overpayment,
repayment is still required unless recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience. OWCP’s hearing representative accepted all
the financial disclosures appellant made and found that his monthly income exceeded monthly
expenses by $113.27. The Board finds that, based on appellant’s most recent financial statement,
appellant listed income of $2,615.00 and monthly expenses of $3,377.73. The Board is unable to
determine how he and the hearing representative reached the monthly expenses figure of
$2,501.73. The hearing representative did not discuss or discount any of appellant’s monthly
expenses and did not explain how he reached the monthly expenses figure of $2,501.73.
In view of these circumstances further development is needed to determine whether
appellant’s monthly income exceeds his expenses and whether recovery of the overpayment
would cause undue hardship. Because OWCP denied waiver of recovery of the overpayment
without giving due consideration to the evidence regarding his current income and expenses, the
Board finds that OWCP did not properly exercise its discretion in the matter.20 The Board will
set aside the August 16, 2011 decision on the issue of waiver and remand the case for proper
exercise of discretion. After such development as may be necessary, OWCP shall issue an
appropriate final decision on whether appellant is entitled to waiver of recovery of the
overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,596.84 for which he was not at fault. The Board also finds
that the case is not in posture for decision regarding his eligibility for waiver of denial of the
overpayment.

20

See I.P., Docket No. 11-1868 (issued June 5, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 decision are affirmed with
respect to fact, amount and fault in the creation of the overpayment and set aside and remanded
for further action with respect to the denial of waiver of recovery of the overpayment.
Issued: October 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Easton, MA, Employer
__________________________________________

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Appearances:
Jacqueline Shanahan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0094
Issued: June 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
JURISDICTION
On October 15, 2018 appellant, through counsel, filed a timely appeal from a May 21, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated July 7, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 30, 2015 appellant, then a 45-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 2015 she struck the back of her right hand
against a cluster mailbox while in the performance of duty. She experienced pain and swelling in
her right hand and fingers. On January 28, 2016 OWCP accepted appellant’s claim for contusion
of the right hand.
On January 21, 2016 Dr. Nurhan G. Kasparyan, a Board-certified orthopedic and hand
surgeon, diagnosed right second metacarpal head fracture. On January 22, 2016 appellant
underwent a right hand magnetic resonance imaging (MRI) scan, which demonstrated a suspected
occult nondisplaced subchondral fracture of the second metacarpal head with superimposed second
metacarpophalangeal (MCP) joint osteoarthritis. Dr. Kasparyan examined her again on
February 12, 2016 and diagnosed second metacarpal hand fracture. He treated appellant with
protective splining and found that she was totally disabled.
On April 5, 2016 appellant accepted a modified rural carrier position. She returned to fulltime modified duty on April 11, 2016. In a duty status report (Form CA-17) dated April 14, 2016,
Dr. Kasparyan found that appellant could perform light-duty lifting up to 20 pounds and
performing limited pushing and pulling. In a letter dated April 18, 2016, OWCP noted that
appellant had returned to work with no loss of wages and ended her wage-loss compensation
effective April 11, 2016.3
In a note dated March 8, 2017, Dr. Kasparyan reported appellant’s continued right hand
pain. He viewed x-rays and diagnosed post-traumatic arthritis of the hand secondary to second
metacarpal head fracture. Dr. Kasparyan recommended joint surgery.
In a letter dated April 3, 2017, OWCP denied appellant’s request for surgery as her claim
was accepted for contusion of the right hand. It informed her that additional rationalized medical
opinion evidence was required to support her request for surgery.
On May 4, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that she
experienced a recurrence of disability on April 27, 2017 due to her December 26, 2015
employment injury. She provided a narrative statement asserting that she worked with

3

On May 19, 2016 Dr. Kasparyan indicated that appellant was totally disabled due to extreme right hand pain, and
limited motion. Appellant filed claims for wage-loss compensation (Form CA-7) and alleged that she was disabled
for the period from May 19 through August 5, 2016. On August 10, 2016 Dr. Kasparyan discharged her from his care.
Appellant returned to full-time regular-duty work on August 11, 2016. By decision dated October 12, 2016, OWCP
denied her claims for wage-loss compensation. On October 28, 2016 appellant requested an oral hearing before an
OWCP hearing representative. By decision dated April 21, 2017, OWCP’s hearing representative affirmed the
October 12, 2016 decision denying wage-loss compensation for the period from May 19 through August 5, 2016.

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excruciating pain. Appellant noted that working worsened her injury and that she was losing
mobility in her index finger.
In a note dated May 4, 2017, Dr. Kasparyan found that appellant was totally disabled as a
result of pain and swelling in her MCP joint. He noted that she was scheduled for surgery on
June 15, 2017.
In a development letter dated May 18, 2017, OWCP noted that appellant’s claim had been
accepted for contusion of the right hand. It requested that she provide additional factual and
medical evidence. OWCP afforded appellant 30 days to respond.
On June 28, 2017 Dr. Kasparyan opined that appellant was totally disabled from work for
three months.
By decision dated July 7, 2017, OWCP denied appellant’s claim for a recurrence of
disability, finding that there was no medical evidence of record addressing causal relationship
between her current right hand condition and resulting disability as well as to her accepted right
hand contusion of December 26, 2015.
On April 13, 2018 appellant, through counsel, requested reconsideration of the July 7, 2017
decision. She contended that OWCP should expand acceptance of her claim to include right
second metacarpal head fracture. Counsel contended that, in clear cut traumatic injury claims,
such as this one, a physician’s affirmative statement on causal relationship was sufficient and no
rationalized medical opinion evidence was required.4 She further contended that appellant was
entitled to wage-loss compensation for periods of total disability due to her diagnosed right second
metacarpal head fracture.
Appellant resubmitted Dr. Kasparyan’s June 30, 2016 note. In a June 15, 2017 note,
Dr. Kasparyan documented that he had performed a right index MCP joint silicone total joint
arthroplasty. He found end-stage post-traumatic arthritis with gross deformity and pain.
On September 19, 2017 Dr. Jennifer B. Green, a Board-certified orthopedic and hand
surgeon, reported that appellant underwent a repeat surgery on July 3, 2017 during which the
replacement joint was removed due to swelling and infection. It was also noted that appellant also
returned to the operating room for repeat irrigation and debridement due to persistent infection on
August 28, 2017.
In a report dated March 20, 2018, Dr. Kasparyan noted appellant’s history of injury on
December 26, 2015 and her initial diagnosis of contusion based on negative x-rays. He noted that
her January 22, 2016 MRI scan demonstrated right second metacarpal head fracture and bony
contusion. Dr. Kasparyan reviewed his treatment notes and found appellant’s continued
complaints of pain and swelling in her right hand. He listed his treatment including cortisone
injection on April 27, 2017, right total joint arthroplasty on June 15, 2017, removal of the joint due
to infection on June 30, 2017, and repeated irrigation and debridements on July 28, August 27, and
October 10, 2017.
Dr. Kasparyan performed a revision total joint arthroplasty on
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(1) (January 2013).

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December 1, 2017. He diagnosed post-traumatic osteoarthritis of the right hand, acute
osteomyelitis of the right metacarpal bone, infection, and osteoarthritis of the finger.
Dr. Kasparyan found, “Based on a reasonable degree of medical certainty, [appellant] sustained a
fracture of the second metacarpal head and bony contusion when she closed a mailbox.”
By decision dated May 21, 2018, OWCP declined to reopen appellant’s claim for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.6 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.7 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.8
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also H.H., supra note 5; M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see also H.H., id.; E.R., Docket No. 09-1655 (issued March 18, 2010).

9

S.M., Docket No. 18-1158 (issued January 16, 2019); J.F., Docket No. 17-1508 (issued March 28, 2018).

10

See supra note 5; Mark H. Dever, 53 ECAB 710 (2002).

11

S.M., supra note 9; Annette Louise, 54 ECAB 783 (2003).

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In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. Accordingly, she is not entitled to a review of the merits of
her claim based on the first requirement under 20 C.F.R. § 10.606(b)(3).
With respect to the second above-noted requirement under 20 C.F.R. § 10.606(b)(3),
counsel contended fact of injury had been established and that it was clearly competent to have
caused the condition described without the need for fully-rationalized medical evidence. The
Board finds that this is a new and relevant legal argument not previously considered by OWCP.
Accordingly, appellant is entitled to a review of the merits of her claim.
Additionally, the Board further finds that Dr. Kasparyan’s March 20, 2018 report
constitutes relevant and pertinent new evidence not previously considered by OWCP. In that
report, Dr. Kasparyan opined that appellant’s right fracture of the second metacarpal head was
causally related to the December 26, 2015 employment incident when she closed a mailbox. This
report directly addresses the basis upon which OWCP denied her recurrence claim, as it offers an
opinion on causal relationship between her current condition and her accepted employment
injury.12 Appellant’s request for reconsideration met more than one of the requirements for
obtaining merit review of her case.13
The Board will, therefore, set aside OWCP’s May 21, 2018 decision. After such further
development of the evidence deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

12
The Board has held that, in support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof. He or she needs only to submit relevant
and pertinent evidence not previously considered by OWCP. See M.C., Docket No. 17-1983 (issued August 17, 2018);
S.H., Docket No. 17-1101 (issued August 3, 2017); Helen E. Tschantz, 39 ECAB 1382 (1988).
13

M.C., id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: June 14, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
FEDERAL AVIATION ADMINISTRATION,
STAPLETON AIRPORT, Denver, CO, Employer
__________________________________________

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

Docket No. 10-1143
Issued: April 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 18, 2010 appellant filed a timely appeal from the December 23, 2009 decision
of the Office of Workers’ Compensation Programs, which denied reimbursement for CoQ10
capsules. He also appeals the Office’s January 6, 2010 decision denying further reimbursement
for a medical records review. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied reimbursement for CoQ10 capsules and
properly denied further reimbursement for a medical records review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In 1976 appellant, a 41-year-old air traffic controller, filed a claim for compensation
alleging that he developed an emotional condition in the performance of duty.2 The Office
accepted his claim for coronary atherosclerosis; injury to other specified pelvic organs, without
open wound into cavity; impotence of organic origin; pure hypercholesterolemia; occlusion
multiple and bilateral arteries; coronary atherosclerosis of native coronary artery; mixed
hyperlipidemia; other complications due to other vascular device, implant and graft; and
congestive heart failure.
On February 2, 2009 appellant advised the Office that the Cleveland Clinic had agreed to
review his records for $600.00 and provide a second opinion consultation. He stated that he
would “overnight” the records to them in the next day or so. Appellant added: “I trust the
$600.00 pay out of pocket to Cleveland will be reimbursed!”
In a report dated February 26, 2009, Dr. Christopher Bajzer, an internist with
subspecialties in cardiovascular disease and interventional cardiology at the Cleveland Clinic,
opined that appellant had received excellent and thoughtful care. He noted that appellant’s local
physician had made very reasonable recommendations to undergo repeat coronary angiography
and the possibility of additional coronary intervention.3
The record indicates that the Office reimbursed appellant, based on a fee schedule, for
$319.98 of the $565.00 charged for the medical records review. On April 1, 2009 appellant
asked the Office to reimburse him for all of his out-of-pocket expenses related to the review,
including the $245.02 balance, $56.92 for overnight shipping, $0.73 in copying expenses and
sales tax.
On September 14, 2009 appellant purchased 60 capsules of CoQ10. On September 16,
2009 Dr. Joseph Chambers, appellant’s cardiologist, prescribed the same.
In a decision dated December 23, 2009, the Office denied authorization for the CoQ10:
“Under the Act, medications which require a prescription by a physician can be
authorized for the accepted conditions … if such medications are recognized by
this office as being appropriate for the accepted condition of the claim. However,
over[-]the[-]counter medications are not compensable. Since the Q10 capsules
you request are available without a prescription, authorization for this supplement
cannot be issued at this time.”

2

In 1969 a crash resulting in fatalities occurred while appellant was “on the boards.” Appellant thereafter had a
difficult time working the boards.
3

In his consultation request, appellant asked three questions: (1) Can angioplasty be done to remove or repair the
blockage in my iliac and/or abdominal aorta and are rotary tools still in use? (2) If my recent (2007) coronary stent
is blocked, can it be reopened? (3) Can you perform angioplasty with [computerized tomography] guidance?

2

In a decision dated January 6, 2010, the Office responded to appellant’s request for
reimbursement of all his out-of-pocket expenses for the medical records review:
“Under the Act, medical expenses can be reimbursed to the extent allowable
under the Federal Fee Schedule. You indicate that you have been compensated to
that extent. Therefore, no additional payments can be made.”
On appeal, appellant argued that the Office abused its discretion in denying
reimbursement for the CoQ10 capsules and in denying full reimbursement for the medical
records review. He noted that the Office previously paid for CoQ10 and had a legal obligation to
do so. Appellant argues the Office’s decision to deny reimbursement for over-the-counter
supplements is arbitrary and capricious. He also emphasizes that he is entitled to “all” medical
services, appliances and supplies.4
LEGAL PRECEDENT
Section 8103(a) of the Act provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation. The employee may initially select a physician to provide medical
services, appliances and supplies, in accordance with such regulations and instructions as the
Secretary considers necessary and may be furnished necessary and reasonable transportation and
expenses incident to the securing of such services, appliances and supplies.5
Thus, the employee is entitled to receive all medical services, appliances or supplies that
a qualified physician prescribes or recommends and which the Office considers necessary to treat
the work-related injury. If there is any doubt as to whether a specific service, appliance or
supply is necessary to treat the work-related injury, the employee should consult the Office prior
to obtaining it.6
Payment for medical and other health services furnished by physicians, hospitals and
other providers for work-related injuries shall not exceed a maximum allowable charge for such
service as determined by the Director of the Office.7 The employee may be only partially
reimbursed for medical expenses because the amount he paid to the medical provider for a
service exceeds the maximum allowable charge set by the Office fee schedule.8 If the provider
4

Appellant argued other issues, such as whether the Office properly required NDC codes. The Board’s
jurisdiction, however, is limited to reviewing the formal final decisions of the Office issued within 180 days of the
filing of his appeal. 20 C.F.R. §§ 501.2(c) and 501.3(e). Appellant also argues that the Office has not provided
documents under the Freedom of Information Act, but the Board has no jurisdiction to address issues arising under
that statute. Sherwood T. Rodrigues, 37 ECAB 617 (1986).
5

5 U.S.C. § 8103(a).

6

20 C.F.R. § 10.310(a).

7

Id. at § 10.805(a) (except as provided by this section).

8

Id. at § 10.337(a).

3

does not refund to the employee or credit his account the money paid in excess of the charge
allowed by the Office, the employee shall submit documentation of the attempt to obtain such
refund or credit to the Office. The Office may make reasonable reimbursement to the employee
after reviewing the facts and circumstances of the case.9
Services, appliances and supplies that meet the statutory criteria may be approved.10 The
Office has broad discretion in approving services under the Act. It has the general objective of
ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. The Office therefore has broad administrative discretion in choosing the means
to achieve this goal. The only limitation on the Office’s authority is that of reasonableness.11
In general, drugs and medications that are necessary to treat an injury or occupational
disease may be purchased at Office expense on the recommendation of the attending physician.
These include prescription as well as nonprescription medications.12 The employee, however,
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.13
ANALYSIS
As described in the statute, regulations, procedure and case law noted above, the Office
has broad discretion whether to pay for a medical records review or an over-the-counter
supplement. There is no mandate. It is up to the Office to decide, in its discretion, whether the
medical records review and the supplement were necessary and reasonable or likely to cure, give
relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.
The regulations anticipated appellant’s request to be reimbursed for all out-of-pocket
expenses incident to securing the record review. Payment for such service shall not exceed a
maximum allowable charge as determined by the Director of the Office. This left appellant only
partially reimbursed because the amount he paid to the Cleveland Clinic for its record review
exceeded the maximum allowable charge set by the Office fee schedule. The Office has
discretion to make further reasonable reimbursement to appellant after reviewing the facts and
circumstances of the case, but its decision not to do so is no abuse.
The evidence does not show the medical necessity of a record review by the Cleveland
Clinic. Appellant sought this review for his own reasons and without consulting the Office about
9

Id. at § 10.337(c).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.2
(September 1995).
11

Daniel J. Perea, 42 ECAB 214, 221 (1990).

12

Supra note 10 at Chapter 3.400.3.a. (September 1995).

13

See Dale E. Jones, 48 ECAB 648, 649 (1997); Mamie L. Morgan, 41 ECAB 661, 667 (1990) (finding that the
employee was not entitled to reimbursement for the purchase of a hot tub because he failed to submit rationalized
medical evidence explaining why it was medically necessary or how it would provide relief).

4

the costs, such as overnight shipping, to be reimbursed. He thus assumed a financial risk.
Appellant was reimbursed for half his expenses under the fee schedule. Had the Office requested
the review and partially paid the Cleveland Clinic as a result of applying its fee schedule, the
Cleveland Clinic would have the right to contest the partial payment, but it could not request
reimbursement from him for the balance of its charge.14 Because it acted within its broad
discretion to reimburse appellant under the fee schedule, the Board will affirm the Office’s
January 6, 2010 decision denying further reimbursement.
Appellant purchased CoQ10 capsules and subsequently obtained a prescription note or
recommendation for it the following day. The evidence, again, does not show the medical
necessity. A prescription note alone does not explain why the purchase of CoQ10 was medically
necessary and reasonable to treat one of the accepted conditions. It does not establish that
CoQ10 capsules are, in the words of the statute, “likely to cure, give relief, reduce the degree or
the period of any disability or aid in lessening the amount of any monthly compensation.”
Moreover, if Dr. Chambers, the attending cardiologist, were to provide some discussion of why
he was prescribing or recommending CoQ10, the Office would still retain discretion to authorize
its purchase.15 Because the Office acted within its broad discretion to deny reimbursement for
the purchase of CoQ10 capsules, the Board will affirm the Office’s December 23, 2009 decision.
Appellant argues on appeal that the Office previously paid for CoQ10, but this does not
mean the Office found the supplement to be medically necessary or likely to cure, give relief,
reduce the degree or the period of any disability or aid in lessening the amount of any monthly
compensation. It could simply mean that he was fortunate to receive a benefit the Office later
determined, on closer inspection, he should not receive. To be clear, the Office has no legal
obligation to pay for the supplement. Like payment for the record review, the matter rests within
the exercise of the Office’s broad discretion. Under the facts of this case, the Board finds no
abuse of that discretion.
Appellant argues under the regulations that he is entitled to receive “all” medical
services, appliances or supplies that a qualified physician prescribes or recommends, but this
language is followed by a critical qualifying conjunctive, namely, “and which the Office
considers necessary to treat the work-related injury.” What the Office considers necessary is
determinative. That same regulations offer guidance: “If there is any doubt as to whether a
specific service, appliance or supply is necessary to treat the work-related injury, the employee
should consult the Office prior to obtaining it.”16
To provide appellant final decisions that he could then appeal to the Board, the Office
issued decisions with reasons. He objects to the precise reasons provided, but where the Office
retains such discretion and latitude in deciding these matters, the Board sees no reason to remand
14

20 C.F.R. § 10.813.

15

See Dale E. Jones, supra note 13 above (affirming the denial of a hot tub where the physician concluded that
hydrotherapy would alleviate the employee’s back condition and where he explained that a hot tub was preferable
because a portable unit would not produce adequate water movement).
16

20 C.F.R. § 10.310(a).

5

this case to issue another decision on the issue at hand. The Board has reviewed these issues and
appellant has received due process. The issues are decided.
CONCLUSION
The Board finds that the Office properly denied reimbursement for CoQ10 capsules and
properly denied further reimbursement for a medical records review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 6, 2010 and December 23, 2009 are affirmed.
Issued: April 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., claiming as widow of S.D., Appellant
and
U.S. POSTAL SERVICE, POST, OFFICE,
Spring Valley, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-2190
Issued: September 24, 2009

Oral Argument June 11, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 5, 2008 appellant filed a timely appeal of a July 17, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for death benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that the employee’s death was causally
related to factors of his federal employment.
FACTUAL HISTORY
This case is before the Board for the fourth time. In a January 24, 2000 decision, the
Board found that the factual evidence established a compensable employment factor in that the

employee’s postal route required more than eight hours to prepare and complete.1 The Board
remanded the case to the Office for further development. On August 13, 2001 the Office
accepted the claim for adjustment disorder with mixed anxiety and depressed mood. It
authorized compensation for the period July 12 to October 23, 1997, the date the emotional
condition was found to have resolved.
The employee died on April 12, 2001. The cause of death was metastatic colon cancer.
Appellant, the employee’s widow, filed a claim for survivor’s benefits (Form CA-5) on
September 3, 2003 alleging that the employee’s death was causally related to his accepted
employment injury. On March 9, 2007 the Board set aside a nonmerit decision of the Office,
finding that appellant submitted relevant new factual evidence.2 On March 26, 2008 the Board
set aside an April 20, 2007 Office decision denying appellant’s claim for death benefits.3 The
Board found that the case was not in posture for decision as to whether the employee had been
harassed or retaliated against in his federal employment. The facts of the case as set forth in the
Board’s prior decisions are incorporated by reference.
On June 20, 2003 Dr. Paul Rosch, a Board-certified internist, reviewed the employee’s
medical records and factual evidence related to his occupational disease claim. He advised that
the employee was subjected to severe and persistent stress at work. Dr. Rosch stated:
“[a]lthough not easy to prove, it is also my opinion that job stress contributed to the development
and fairly rapid downhill course of his colon cancer.” He noted that stress had been shown to
accelerate the spread and growth of malignant tumors and emotional stress had been shown to
depress natural killer cells and other immune system components responsible for resistance to
carcinogens. Dr. Rosch noted exceptions for attributing the employee’s cancer to stress, but
concluded that they could be dismissed in this case due to well-documented harassment at work,
the temporal relationship of his symptoms of colon cancer and the absence of other competent
contributing causes. He stated that severe and persistent emotional stress at work “was not only
responsible for his emotional breakdown but also contributed to the development and unusually
rapid downhill course of his colon cancer.”
On April 30, 2004 Dr. Rosch reported that the employee’s inability to complete his work
duties within eight hours also created an atmosphere of severe and persistent stress. He
reiterated his opinion that stress could weaken the immune system’s resistance to cancer.
On August 16, 2004 Dr. Suresh B. Katakkar, a Board-certified oncologist, reviewed the
employee’s medical records and a statement of accepted facts at the request of the Office. He
noted that there had not been a definitive link documented with stress in human malignancies as
stated by Dr. Rosch but that the employee had cancer while undergoing stress at work. While
the stress did not cause the employee’s colon cancer, Dr. Katakkar noted that it could cause
1

Docket No. 99-1439 (issued January 24, 2000). On May 26, 1998 the Office denied the employee’s emotional
condition claim on the basis that he failed to establish a compensable factor of employment. An Office hearing
representative affirmed the denial on December 31, 1998. The Board adopted the decision of the hearing
representative to find that the employee had not substantiated allegations of harassment or discrimination.
2

Docket No.06-1937 (issued March 9, 2007).

3

Docket No. 07-1857 (issued March 26, 2008).

2

problems over time. On September 7, 2004 he further clarified his opinion, stating that the
employee’s colon cancer was unrelated to the accepted mixed anxiety disorder or adjustment
disorder. Dr. Katakkar also stated that depression did not cause or induce any cancer in the
employee.
On March 14, 2005 the Office received a report by Dr. Bernard S. Siegel, a Boardcertified surgeon, who reviewed materials submitted by appellant regarding the employee’s
medical records and work history, stating his agreement with the opinion of Dr. Rosch.
Dr. Siegel determined that the work stress the employee was under “contributed to the rapid
progression of his disease.”
Appellant submitted a copy of a transcript in proceedings before an administrative judge
in the employee’s Equal Employment Opportunity (EEO) claim. She also submitted two pages
from the April 4, 2002 decision reached in that case. In an April 3, 2006 letter, the employing
establishment’s manager of human services expressed condolences to appellant on the loss of her
husband and appreciation for his service as a letter carrier.
In an April 20, 2007 decision, the Office found that the evidence was insufficient to
establish harassment or retaliation. As the two-pages from the EEO decision were redacted, it
had no probative value. The Office found the medical evidence insufficient to establish that the
employee’s death caused by the accepted employment factor.
Following the Board’s March 26, 2008 decision, the Office received a complete copy of
the April 4, 2002 decision by Administrative Judge Dennis Carter on the employee’s harassment
and retaliation claims. Judge Carter found that the evidence submitted was insufficient to
establish harassment and retaliation based upon religion, gender or protected activity. In
addressing retaliation, Judge Carter stated:
“I find the evidence established that the responsible management officials were
not completely truthful, but I do not find that the preponderance of the evidence
established their lies were retaliation for EEO activity. After a thorough review of
the record and assessing the credibility of the responsible management officials, I
find that PM [Postmaster] Kelley was the driving force behind the close
monitoring of the [c]omplainant’s work performance because she was retaliating
against the complainant because of his aggressive role in Project Hope, which
made her look bad to higher management in the [d]istrict. I further find that
Project Hope was the origin of the retaliatory actions the [c]omplainant identified
as continuing harassment rendering his work environment hostile and abusive.
The responsible management officials used the [c]omplainant as an example of
what happens when an employee speaks out against management actions, i.e., his
work performance became closely monitored, his requests for help were
continuously scrutinized and criticized, and when he spoke up at stand-ups he was
ignored. Notwithstanding this finding, the [c]omplainant failed to establish that
Project Hope involved Title VII, ADA, EPA, or Rehab[ilitation] Act issues. In
fact, the preponderance of the evidence did not show that the [c]omplainant
engaged in protected EEO activity known to the responsible management officials
until after he filed the EEO complaint that served as the basis for this hearing.

3

Accordingly, I find that even though the [a]gency’s articulated reasons for its
actions were retaliatory linked to the [c]omplainant’s active involvement with
Project Hope, the preponderance of the evidence did not establish that Project
Hope involved EEO issues. Thus, since the [c]omplainant was not engaged in
opposition to discriminatory practices, he cannot recover for the [a]gency’s
retaliatory actions in this forum.”
By decision dated July 17, 2008, the Office again found that the evidence was insufficient
to establish harassment or retaliation. It also found the medical evidence insufficient to support
that the employee’s death was caused or contributed to by the accepted employment factor.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act4 provides that the United States shall pay
compensation for disability or death of an employee resulting from personal injury sustained
while in the performance of duty.5 However, an award of compensation in a survivor’s claim
may not be based on surmise, conjecture or speculation or on appellant’s belief that the
employee’s death was caused, precipitated or aggravated by his employment. A claimant has the
burden of proving by the weight of the reliable, probative and substantial evidence that the
employee’s death was causally related to his or her employment.6 This burden includes the
necessity of furnishing rationalized medical opinion evidence, based on a complete factual and
medical background, showing causal relationship.7
ANALYSIS
In a prior appeal, the Board determined that the employee established a compensable
factor under Cutler,8 as his postal route required more than eight hours to prepare and complete.
The Office subsequently accepted the employee’s claim for an adjustment disorder with mixed
anxiety and depressed mood. The employee died on April 12, 2001 due to metastatic colon
cancer. Appellant claims that his death was caused by or contributed to from the stress
encountered in his employment, particularly harassment and retaliation. The Office denied these
as compensable factors, noting that the two-page decision of an EEO administrative judge was
redacted such that it was of no probative value.
Since the Board’s most recent decision, the case record was supplemented with a copy of
the April 4, 2002 decision of Judge Carter in the employee’s EEO claim. The judge reviewed
evidence submitted on the questions of whether appellant was discriminated on the basis of
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

D.H. (G.H.), 58 ECAB ___ (Docket No. 07-314, issued July 18, 2007).

7

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Lois E. Culver (Clair L. Culver), 53
ECAB 412 (2002).
8

Lillian Cutler, 28 ECAB 125 (1976).

4

gender or religion, retaliated against for prior EEO activity or subjected to a hostile work
environment. Following investigation, a hearing was held in which nine witnesses and the
employee appeared and testified. Applying EEO law and standards to the evidence, Judge Carter
found that the employee was not discriminated against on the basis of his gender, religion or
protected EEO activity. As to retaliatory conduct based on the employee’s involvement in
Project Hope, Judge Carter found that the nature of the project did not involve EEO issues:
“[S]ince the complainant was not engaged in opposition to discriminatory practices, he cannot
recover for the [a]gency’s retaliatory actions in this forum.”
The Board has generally held that the findings of other federal administrative agencies or
courts are not dispositive with regard to questions arising under the Federal Employees’
Compensation Act. The decisions of other tribunals are made pursuant to different statutes that
apply varying standards for establishing eligibility for benefits.9 While not dispositive, however,
the Board may give weight to decisions based on the factual findings made in proceedings before
another forum.10 As applicable to this case, the Board has held that the term “harassment” as
applied by the Board is not equivalent to the term as defined or implemented by other agencies,
such as the EEO, which is charged with statutory authority to investigate and evaluate such
matters in the workplace.11 Rather, in evaluating claims for workers’ compensation under the
Federal Employees’ Compensation Act, the term “harassment” is synonymous, as generally
defined, with a persistent disturbance, torment or persecution, i.e., mistreatment by coemployees
or coworkers.12
Judge Carter reviewed the evidence and considered testimony from multiple parties at the
employing establishment. He determined that, even though the responsible management
officials had engaged in retaliatory conduct based on the employee’s involvement in Project
Hope, the employing establishment was not responsible under EEO law since Project Hope did
not involve EEO issues.
Under the Act, however, the Board finds that the evidence from the EEO pertaining to the
employee’s claim is sufficient to establish retaliation on the part of his supervisors. Persuasive
evidence from Judge Carter establishes that the postmaster was the driving force behind abusive
actions such as the close monitoring of the employee’s work performance as retaliation against
the complainant because of his aggressive role in Project Hope, which made her look bad to
higher management in the district. The Board also concludes from the judge’s decision that
Project Hope was the origin of the retaliatory actions the employee identified as continuing
harassment rendering his work environment hostile and abusive. Employing establishment
management used the employee as an example of what would happen if an employee spoke out
against management, i.e., his work performance became closely monitored, his requests for help
were continuously scrutinized and criticized and when he spoke up at stand-ups he was ignored.
9

See Andrew Fullman, 57 ECAB 574 (2006).

10

See Kelly S. Simpson, 57 ECAB 197 (2005); Ernest J. Malagrida, 51 ECAB 287 (2000).

11

Ronald K. Jablanski, 56 ECAB 616 (2005).

12

Id. See also Beverly R. Jones, 55 ECAB 411 (2004).

5

Appellant has established retaliation as a compensable employment factor. On return of the case,
the Office should prepare an updated statement of accepted facts listing the two compensable
employment factors.
Based on this determination, the medical evidence requires further development.
Dr. Rosch, a Board-certified internist, and Dr. Siegel, a Board-certified surgeon, opined that
appellant’s the previously accepted Cutler factor had contributed to the rapid progression of the
employee’s colon cancer and generally provided support for this conclusion. Dr. Katakkar, a
second opinion physician Board-certified in oncology, reviewed the employee’s medical records
and a statement of accepted facts. He advised that appellant’s colon cancer was not caused by
stress in the employment but generally agreed with Dr. Rosch that stress could cause a problem
over a period of time. In a supplemental report dated September 7, 2004, Dr. Katakkar found
that the employee’s colon cancer was unrelated to the accepted mixed anxiety disorder or
adjustment disorder. He did not address whether the stress of employment may have aggravated
or contributed to the progression of the employee’s colon cancer prior to death. The medical
evidence, while not sufficient to establish appellant’s claim, is sufficient to require further
development of the medical evidence.13
On remand, the Office should prepare a new statement of accepted facts to include the
factors of employment, as noted. It should refer the employee’s record to an appropriate
specialist in oncology for an opinion on whether the employee’s death was caused or contributed
to by his federal employment.
CONCLUSION
The Board finds the employee was subjected to retaliation in his federal employment.
The case is not in posture for a decision on whether his death was caused or contributed by his
employment as further development of the medical evidence is warranted.

13

See Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 17, 2008 be affirmed, in part, as to the denial of harassment
as a compensable factor. The decision is set aside and the case remanded for further proceedings
before the Office consistent with this decision.
Issued: September 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF THE TREASURY,
OFFICE OF THE SECRETARY,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0079
Issued: July 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 20, 2015 appellant filed a timely appeal from a June 9, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on March 18, 2015.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its June 9, 2015 decision. The
Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 26, 2015 appellant, then a 54-year-old project manager, filed a traumatic injury
claim (Form CA-1) alleging a work-related injury to her wrists, knees, ankles, and back due to a
fall at 1:20 p.m. on Wednesday, March 18, 2015. Regarding the cause of the injury, she noted,
“Left diversity event at the main Treasury to return to office at 1750 Pennsylvania Avenue. Due
to construction, I walked from the street to the curb and tripped over the curb.”3
On the same Form CA-1, appellant’s immediate supervisor listed appellant’s official duty
station as 1750 Pennsylvania Avenue, Northwest, Washington, DC, and her regular work hours
as 8:30 a.m. to 5:00 p.m., Monday through Friday. The supervisor checked a box marked “No”
indicating that appellant was not in the performance of duty at the time of her claimed March 18,
2015 injury and added the comment, “Employee was walking from one GOT building to
another.”
Appellant submitted a March 18, 2015 report in which an attending nurse noted that she
reported falling on that date outside of the “Main Treasury building near the White
House/Treasury Gate on Pennsylvania Avenue.” The nurse diagnosed “acute pain with probable
injury to right ankle and wrist joints.”
X-ray testing of appellant’s knees, wrists, and lower back, obtained on March 30, 2015,
revealed mild degenerative changes, but no fractures or dislocations.
In an April 28, 2015 report, Dr. Loiy H. Mustafa, an attending Board-certified orthopedic
surgeon, noted that appellant reported falling while going up a curb on March 18, 2015 and he
diagnosed lumbar pain, right wrist pain probably due to sprain, right knee pain probably due to
flare up of osteoarthritis, and right ankle sprain particularly over the anterior talofibular ligament.
In an attending physician’s report (Form CA-20) dated April 3, 2015, Dr. Shauna
Reshard, an attending Board-certified internist, noted that appellant reported falling on
March 18, 2015 while stepping on a curb. She diagnosed knee, leg, ankle, and foot injury (ICD9 code 959.7), contusion of chest wall (922.1), and wrist sprain (842.0), and checked a box
marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the
employment activity. Dr. Reshard added the notation, “[Appellant’s] underlying knee arthritis
was likely exacerbated/worsened by fall.” Appellant also submitted reports of periodic physical
therapy sessions.
On May 5, 2015 an OWCP claims examiner telephoned appellant and asked several
questions regarding her work situation and the event she attended on March 18, 2015. Appellant
noted that she lived in Palm Coast, Florida, and worked remotely from there for weeks at a time.
Depending on the needs of the employing establishment, she traveled to Washington, DC every
four to five weeks for meetings. Appellant indicated that attendance at the event on March 18,
2015, which she described as “geared towards women for empowerment,” was voluntary in
nature.4 She noted that the event did not pertain to any portion of her current duties and
3

Appellant stopped work on March 18, 2015 and returned to light-duty work in mid-April 2015 with restrictions
of no heavy lifting, prolonged standing, or repetitive bending.
4

Appellant indicated that, in her last position, she headed up diversity in the workplace and noted that she wanted
to attend the event on March 18, 2015 because the subject matter interested her.

2

responsibilities and responded in the affirmative when asked whether it was “more like [a for
your information]/informative seminar type event.”
On May 5, 2015 an OWCP claims examiner telephoned a human resources specialist for
the employing establishment and asked several questions regarding the event appellant attended
on March 18, 2015. The specialist indicated that the employing establishment did not “set up”
the event and that it only sponsored it to the extent that it sent notification to all of its employees
of the event date, time, and location. She noted that the event was voluntary in nature and that
“those who wanted could attend, [and] those who did n[o]t could continue to work.” The
specialist indicated that the event was only for personal enrichment and did not “really apply to
[appellant’s] duties or enhance/train her for work.” The specialist responded to the examiner’s
question, “It is noted that the event was not at the employee’s actual place of employment,
explain?” by explaining that the event was held in a separate Treasury building and that whoever
wanted to attend would have to walk to the main building for the event and return afterwards.
Again, she explained that it was only a voluntary event for those desiring to attend.
The claims examiner and the human resources specialist spoke again by telephone on
May 6, 2015 at which time the specialist advised that appellant was not on travel-duty status
when she worked in Washington, DC. The specialist reported that appellant would work in
Washington, DC, for approximately six weeks at a time and then would telework from Palm
Coast, Florida, for four weeks at a time.
In a May 7, 2015 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. It noted that a conference had been held with appellant
on May 5, 2015, but advised her that, if she had “need[ed] to provide additional information,”
she should preview the following questions:
“1. State where you were and what you were doing at the time your injury
occurred. Provide a detailed description as to how your injury occurred. (For
example, if you fell, state how far you fell, how you landed, etc. If lifting was the
cause of the injury, describe the object handled, its weight, what you did with it,
etc.)
“2. The evidence indicates that you were injured off the premises of your
employing agency; therefore, please respond to the following so that it can be
determined if you were in the performance of duty when injured:
“3. Were you on agency premises and performing regularly assigned duties when
the injury occurred? If you were not performing assigned duties, please explain
exactly what you were doing when the injury occurred.”
Appellant submitted additional medical reports and reports of physical therapy sessions.
In a May 8, 2015 report, Dr. Shawna Reshard, an attending Board-certified internist, listed the
date of injury as March 18, 2015 and diagnosed right ankle sprain, right wrist sprain, and right
knee pain. Appellant did not respond to the questions posed in the May 7, 2015 development
letter.
By decision dated June 9, 2015, OWCP denied appellant’s claim for a March 18, 2015
work injury. It found that she had established that a medical condition was diagnosed in
3

connection with a March 18, 2015 incident, but that she had not established that the injury
occurred in the performance of duty on that date. OWCP noted that appellant’s case was denied
because the evidence of record was insufficient to establish that the injury and/or medical
condition arose during the course of her employment and within the scope of compensable work
factors. It noted that, per her statement and the employing establishment’s statement, the
March 18, 2015 “diversity event” was not within the compensable work factors of her position
and was of a voluntary nature to attend. OWCP indicated that appellant’s attendance at the event
did not arise out of her position or employment as a project manager and noted that the event was
“not sponsored by the agency.”
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.5 In order to
be covered, an injury must occur at a time when the employee may reasonably be said to be
engaged in her master’s business, at a place when she may reasonably be expected to be in
connection with her employment, and while she was reasonably fulfilling the duties of her
employment or engaged in doing something incidental thereto.6 For an employee with fixed
hours and a fixed workplace, an injury that occurs on the employing establishment premises
when the employee is going to or from work, before or after working hours, or at lunch time is
compensable.7
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.8 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”9 “Arising out of the employment” tests the causal connection between
the employment and the injury; “arising in the course of employment” relates to the time, place,
and work activity involved.10 For the purposes of determining entitlement to compensation
under FECA, “arising in the course of employment,” i.e., performance of duty, must be
established before “arising out of the employment,” i.e., causal relationship, can be addressed.11
OWCP’s FECA procedure manual provides that injuries arising on the premises of an
employing establishment may be accepted if the employee was performing assigned duties, or
was engaged in activity reasonably incidental to the employment, such as: (a) personal acts for

5

Supra note 1 at § 8102(a) (2000).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006)

7

Id. See also Denise A. Curry, 51 ECAB 158, 160 (1999); Narbik A. Karamian, 40 ECAB 617, 618-19 (1989).

8

Supra note 1 at § 8102(a).

9

See Bernard D. Blum, 1 ECAB 1 (1947).

10

See Eugene G. Chin, 39 ECAB 598, 601-02 (1988); Clayton Varner, 37 ECAB 248, 250 (1985).

11

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

4

the employee’s comfort, convenience, and relaxation; (b) eating meals and snacks on the
premises; or (c) taking authorized coffee breaks.12
The premises of the employer, as the term is used in workers’ compensation law, is not
necessarily coterminous with the property owned by the employer; it may be broader or narrower
and dependent more on the relationship of the property to the employment than on the status or
extent of the legal title. The term premises as it is generally used in workers’ compensation law
are not synonymous with property. The former does not depend on ownership, nor is it
necessarily coextensive with the latter. In some cases premises may include all the property
owned by the employer; in other cases, even though the employer does not have ownership and
control of the place where the injury occurred, the place is nevertheless considered part of the
premises.13
Underlying the proximity exception to the premises rule is the principle that course of
employment should extend to an injury that occurred at a point where the employee was within
the range of dangers associated with the employment.14 The most common ground of extensions
is that the off-premises point, at which the injury occurred, lies on the only route, or at least on
the normal route, which employees must traverse to reach the employing establishment, and that
the special hazards of that route become the hazards of employment.15 The Board has held that
off-premises injuries are generally not compensable where an employee has fixed hours and a
fixed place of work.
With regard to social or recreational activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employing establishment, by
expressly or impliedly requiring participation, or by making the activity part of the service of the
employee, brings the activity within the orbit of employment; or (3) the employing establishment
derives substantial direct benefit from the activity beyond the intangible value of improvement in
employee health and morale that is common to all kinds of recreation and social life.”16
ANALYSIS
The Board finds that the record lacks development sufficient to properly determine
whether appellant was in the performance of duty at the time of her fall on March 18, 2015.17
On March 26, 2015 appellant filed a traumatic injury claim alleging a work-related injury due to
a fall at 1:20 p.m. on March 18, 2015. An employing establishment official noted that the event at
issue was voluntary in nature, rather than mandatory, and indicated that “those who wanted could
12

T.L., Docket No. 07-1692 (issued June 2, 2008); see also A. Larson, The Law of Workers’ Compensation
§ 21.21(a).
13

Denise A. Curry, supra note 7.

14

See B.H., Docket No. 14-0829 (issued July 8, 2015); Linda D. Williams, 52 ECAB 300 (2001); Michael K.
Gallagher, 48 ECAB 610 (1997).
15

Id.

17

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5
(January 2013).

5

attend, [and] those who did n[o]t could continue to work.” Appellant acknowledged that it did
not pertain to any portion of her current duties or responsibilities and that it was more of an
informational seminar-type event. The Board finds that the record is insufficient to clearly
understand the nature and purpose of the department’s sponsorship and all instructions or
policies relating to attendance of the March 18, 2015 event. The evidence further fails to
definitively establish whether appellant was in the performance of duty at the time as it is
unknown whether she was on her unpaid lunch period, on official time, on administrative leave,
or whether some other form of leave was required.18
The record is also insufficient to determine the exact location of appellant’s fall so as to
allow the Board to determine whether her injury occurred on the employing establishment’s
premises or whether any exceptions to the premises doctrine might exist in this case. Appellant
indicated that she left the “diversity event” geared towards “Women’s Empowerment” at the
Main Treasury building. Upon returning, on foot, to her duty station at 1750 Pennsylvania
Avenue, she noted that she tripped while stepping from the street onto a curb and fell to the
ground. The evidence of record, however, does not establish the exact location of the incident
beyond appellant’s description on her claim form and a notation that the injury occurred near the
gate between the Treasury building and the White House. Neither party provided definitive
evidence regarding the exact location of her fall on March 18, 2015 or evidence regarding
ownership of the property where she fell.19 The record also does not contain any policy of the
employing establishment, if one exists, for travel between the two Treasury Department
buildings on Pennsylvania Avenue.20
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.21
Accordingly, the June 9, 2015 decision will be set aside and the case will be remanded for
further development of the record and, after such further development, to issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

See supra notes 6 to 18.

19

Supra note 14.

20

M.R., Docket No. 07-596 (issued June 8, 2007).

21

M.M., Docket No. 07-1842 (issued November 20, 2007); Horace L. Fuller, 53 ECAB 775, 777 (2002);
James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB 1223 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2015 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: July 21, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


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

)
)
)
)
)
)
)
)

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

Docket Nos. 11-1379 & 12-1308
Issued: September 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 19, 2011 appellant, through her attorney, filed a timely appeal of decisions of the
Office of Workers’ Compensation Programs (OWCP) dated December 28, 2010,1 January 11 and
February 28, 2011 and two decisions dated April 26, 2011. The Board assigned this appeal
Docket No. 11-1379. Subsequently, on June 14, 2011 appellant also appealed from an OWCP
decision dated May 25, 2011, to which the Board assigned Docket No. 12-1308. Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

Appellant did not appeal the December 28, 2010 decision denying intermittent periods of disability for the
period October 23 to November 19, 2010. As such, this decision is not addressed on this appeal. 20 C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish intermittent
periods of disability from May 8 to October 8, 2010; and (2) whether she met her burden of
proof to modify OWCP’s April 8, 2009 loss of wage-earning capacity decision.
On appeal appellant, through counsel, argued that she established a recurrence of
disability because the employing establishment withdrew her light-duty position. She also
contended that the loss of wage-earning capacity determination was erroneous because the
position she held was makeshift.
FACTUAL HISTORY
On November 21, 2007 appellant, then a 58-year-old letter carrier, filed a traumatic
injury claim alleging that on November 5, 2007 she was hit by a car and sustained an injury to
her left leg. On January 2, 2008 OWCP accepted her claim for a closed fracture of the upper end
of the left tibia. It later accepted appellant’s claim for traumatic arthropathy of the left lower leg.
On July 28, 2008 appellant accepted a modified limited-duty position as a carrier. Her position
had restrictions of sitting five hours a day and walking and standing were limited to one hour a
day. Appellant was also restricted to pushing/pulling/lifting up to 15 pounds for one hour a day.
She returned to work in this light-duty full-time position on August 1, 2008.
In a February 2, 2009 report, Dr. Gene Shaffer, a treating Board-certified orthopedic
surgeon, stated that appellant was status post tibial plateau fracture, with post-traumatic arthritis.
He noted that she had resumed work on a modified-duty schedule, which involved sitting,
restricted standing and walking and less driving of a truck. Appellant had no brace or support
but used a cane occasionally. Dr. Shaffer stated that he agreed with the modified-duty
assignment at the employing establishment.
In a decision dated April 8, 2009, OWCP found that appellant had been recently
employed in a modified carrier position for eight months with wages of $1,032.38 a week. It
found that her actual wages resulted in no loss in earning capacity.
On May 21, 2010 appellant filed a claim for compensation for the period May 8
through 21, 2010. A May 25, 2010 time analysis form indicated that she did not work
intermittent hours between May 12 and 21, 2010. The reason given for leave was “no work.”
By decision dated June 29, 2010, OWCP denied appellant’s claim for compensation from
May 8 through 21, 2010. It determined that she had not met the requirements for modifying the
2009 wage-earning capacity determination.
Appellant requested an oral hearing before an OWCP hearing representative that was
held on October 6, 2010. She testified that she returned to full-time work in August 2008 in a
position that allowed her to sit or stand and that she was okay doing that job. Appellant
continued to work in that position until May 8, 2000 when she was told to go home after five or
six hours because there was no light-duty work available. She missed three hours of work that
day and, thereafter, was sent home earlier and earlier.

2

In a December 28, 2010 decision, an OWCP hearing representative affirmed the June 29,
2010 decision as the evidence failed to establish that the loss of wage-earning capacity
determination of April 8, 2009 should be modified. The hearing representative further
determined that the evidence failed to establish that appellant was disabled from May 8
to 21, 2010.
Appellant submitted additional claims for compensation for missed hours.
Appellant’s claim for compensation for the period June 19 through July 2, 2010 was
denied by OWCP in an August 24, 2010 decision. This decision was affirmed by a hearing
representative in a decision dated January 11, 2011. The hearing representative found that
appellant did not meet the burden of proof for modification of the April 8, 2009 loss of wageearning capacity determination. The hearing representative noted that the medical evidence of
record did not establish that the accepted condition worsened or that an increase in injury-related
disability occurred.
In an August 4, 2010 decision, OWCP denied appellant’s claim for compensation for the
period June 5 through 18, 2010. This decision was affirmed by an OWCP hearing representative
on February 28, 2011. The hearing representative found that the evidence failed to establish any
error with regard to the loss of wage-earning capacity determination rendered on April 8, 2009.
Appellant’s claim for compensation for the period July 3 through 16, 2010 was denied by
OWCP on September 14, 2010. This decision was affirmed by an OWCP hearing representative
on April 26, 2011. The hearing representative found that appellant had not established that the
April 8, 2009 loss of wage-earning capacity decision should be modified.
Appellant’s claim for compensation for the period July 17 through August 13, 2010 was
denied by OWCP on September 24, 2010. This decision was affirmed by an OWCP’s hearing
representative on April 26, 2011. The hearing representative found that appellant had not
established that the April 8, 2009 decision should be modified.
Appellant’s claim for compensation for August 14 through September 13, 2010 was
denied by OWCP on October 18, 2010. By decision dated November 3, 2010, OWCP denied her
claim for compensation for the period September 10 through 24, 2010. It denied appellant’s
claim for compensation for the period September 27 to October 8, 2010 in a November 15, 2010
decision.
By letter dated November 15, 2010, OWCP noted that it had received appellant’s claim
for wage loss from October 23 through November 7, 2010. It advised that the evidence indicated
that specific hours of her limited-duty assignment had been withdrawn as part of the National
Reassessment Process (NRP).
The decisions of October 18, November 3 and 15, 2010 were affirmed by an OWCP
hearing representative on May 25, 2011. The hearing representative found that appellant had not
established that the loss of wage-earning capacity determination should be modified. The
hearing representative did find that there was sufficient evidence to support that appellant had
developed left knee post-traumatic arthritis in the lateral compartment due to her work-related
injury. The hearing representative determined that the medical evidence did not establish that
3

the left knee arthritis impacted her ability to perform her modified duty. The hearing
representative noted that the diagnosis of lateral tibial plateau fracture, left knee was medically
connected to her work-related injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.4
Once the wage-earning capacity is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous. These are the customary criteria for modification and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.5
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wageearning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.6
ANALYSIS
OWCP accepted appellant’s claim for closed fracture of the upper end of the left tibia and
for traumatic arthopathy of the left lower leg. Appellant returned to work in a limited-duty
assignment on July 28, 2008. On May 8, 2010 the employing establishment reduced her hours of
work in her modified position. Appellant filed claims for compensation that showed loss of
intermittent hours for periods starting May 8, 2010. She indicated that she was sent home
because no work was available.
On April 8, 2009 OWCP issued a loss of wage-earning capacity decision. The employing
establishment reassessed appellant’s position under NRP which resulted in her being assigned to
a limited-duty position with limited hours. OWCP analyzed the case under the customary
criteria for modifying a loss of wage-earning capacity determination, but did not acknowledge
3

5 U.S.C. § 8102(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009)
5

Daniel J. Boesen, 38 ECAB 556 (1987)

6

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

4

FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this,
in which limited-duty positions are withdrawn pursuant to NRP.7
When a loss of wage-earning capacity decision has been issued and the position is later
withdrawn pursuant to NRP, FECA Bulletin No. 09-05 requires OWCP to develop the evidence
to determine whether a modification of the decision is appropriate.8 To this end, FECA Bulletin
No. 09-05 states that OWCP should confirm that the file contains documentary evidence
supporting that the position was an actual bona fide position. It requires OWCP to review
whether a current medical report supports work-related disability and establishes that the current
need for limited duty or medical treatment is a result of injury-related residuals, and to further
develop the evidence from both the claimant and the employing establishment if the case lacks
current medical evidence.9
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating and
to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.10
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the December 28, 2010 and January 11, February 28, April 26 and May 25, 2011 decisions
and remand the case for further consideration. After proper compliance with FECA Bulletin
No. 09-05 guidelines, OWCP shall issue an appropriate de novo decision on appellant’s
entitlement to wage-loss compensation beginning May 8, 2009.11
CONCLUSION
The Board finds that this case is not in posture for decision.

7

See M.A., Docket No. 12-316 (issued July 24, 2012).

8

FECA Bulletin No. 09-05, supra note 6.

9

Id. at §§ I.A.1-2.

10

Id. at § I.A.3.

11

M.A., supra note 7; see also M.E., Docket No. 11-1416 (issued May 17, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the May 25, April 26, February 28 and January 11,
2011 and December 28, 2010 decisions of the Office of Workers’ Compensation Programs are
set aside and the case remanded for further action.
Issued: September 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6