United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
_________________________________________

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

Docket Nos. 14-857 &
14-1536
Issued: August 18, 2014

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 5, 2014 appellant, through counsel, filed a timely appeal from the October 31,
2013 and January 22, 2014 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective August 25, 2012 on the grounds that he
had no residuals of his July 8, 2000 work injury after that date; and (2) whether OWCP properly
rescinded its acceptance of appellant’s claim for a recurrence of disability on April 10, 2010 due
to his accepted right wrist conditions.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on July 8, 2000 appellant, then a 39-year-old letter carrier, sustained
a lumbar sprain when he sat down in a straight-back chair on that date. Appellant’s claim was
later accepted for aggravation of lumbar disc displacement. He received disability compensation
on the periodic rolls.2
By decision dated April 8, 2011, OWCP terminated appellant’s entitlement to wage-loss
compensation and medical benefits with respect to the July 8, 2000 injury. It found that the
weight of medical opinion was represented by the July 23, 2010 report of Dr. Stanley Askin, a
Board-certified orthopedic surgeon serving as an OWCP referral physician.
In a November 2, 2011 decision, an OWCP hearing representative found that Dr. Askin’s
report required clarification regarding appellant’s continuing disability and residuals. The case
was remanded to OWCP to request a supplemental report from Dr. Askin addressing whether
appellant continued to have disability or residuals related to the accepted July 8, 2000 work
conditions. After receiving Dr. Askin’s November 28, 2011 response, OWCP terminated
appellant’s entitlement to wage-loss compensation and medical benefits in a December 14, 2011
decision.
In a February 16, 2012 decision, issued in connection with appellant’s October 19, 1994
right wrist injury, OWCP noted that appellant’s claim for a recurrence of disability on April 19,
2010 had been accepted because he was sent home without work on that date. OWCP stated,
“Any bills which have been returned to you or your medical provider may be submitted for
payment.”3
In a March 15, 2012 decision, an OWCP hearing representative found that Dr. Askin’s
report was not sufficient to support the termination of wage-loss compensation and medical
benefits. The case was remanded to OWCP in order to refer appellant for a new second opinion
evaluation addressing his continuing work-related disability and residuals.
In a February 16, 2012 report, Dr. Frank Alario, an attending Board-certified internist,
discussed appellant’s medical history, including the July 8, 2000 work injury. He also described
appellant’s back problems, including chronic low back pain and degenerative disc disease at
L4-5 and L5-S1. In a February 29, 2012 report, Dr. Peter DiPaolo, an attending Board-certified
orthopedic surgeon, discussed appellant’s herniated discs at L4-5 and L5-S1 and advised that he
was disabled due to these conditions and needed surgery.
In an April 25, 2012 report, Dr. Kenneth Heist, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, discussed his review of the medical records and detailed
findings on physical examination. He concluded that there was no medical evidence of a
2

Under a separate claim file, OWCP accepted that on October 19, 1994 appellant sustained a right wrist fracture
and ulnar nerve lesion.
3

On April 22, 2010 appellant had filed a claim for a recurrence of disability beginning April 19, 2010 due to her
July 8, 2000 back injury, rather than due to her October 19, 1994 right wrist injury. It is unclear why OWCP issued
its decision on this matter almost two years after the filing of the claim.

2

condition causally related to the July 8, 2000 lumbar injury. Dr. Heist found that there was no
basis for physical restrictions due to the July 8, 2000 work injury as there were no objective
findings supportive of continuing disability. He diagnosed “chronic mid-lumbar sprain” and
stated:
“My clinical examination of the lumbar spine documented a restriction in the last
10 degrees of motion. I attribute this to degenerative spinal disease. There are no
medical findings that the conditions causally related to the employment injury
(sitting in a straight-backed chair) are still active. There are no objective findings
related to the injury. There is no current disability.”
In a May 11, 2012 report, Dr. Jeffrey Oppenheimer, an attending Board-certified
neurosurgeon, discussed appellant’s cervical problems. He diagnosed lumbago secondary to
two-level lumbar disc disease and cervicalgia with left C5, C6 and C7 radiculitis, most likely
secondary to disc disease.
OWCP requested clarification of Dr. Heist’s April 25, 2012 opinion. In a July 21, 2012
addendum report, Dr. Heist further explained that there was no objective evidence that
appellant’s present condition was causally related to the July 8, 2000 work injury or that there
was a work-related lumbar condition that continued to be active.
By decision dated August 20, 2012, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective August 25, 2012. It found that Dr. Heist’s second
opinion reports established that appellant had no continuing residuals or disability related to the
accepted July 8, 2000 work conditions.
In an October 18, 2012 decision, issued in connection with his July 8, 2000 low back
injury, OWCP advised appellant that it had accepted that he sustained a recurrence of disability
on April 19, 2010. It stated, “Any bills which have been returned to you or your medical
provider may be submitted for payment.”
In an October 19, 2012 decision, issued in connection with appellant’s October 19, 1994
right wrist injury, OWCP rescinded its February 16, 2012 acceptance of appellant’s claim for a
recurrence of disability on April 19, 2010. It explained that the rescission was justified because
the initial acceptance had been accepted under the wrong claim file. Appellant was sent home
when no work was available in connection with his limited-duty work necessitated by his July 8,
2000 back injury. Therefore, it was improper to accept the recurrence claim under the file for
appellant’s October 19, 1994 right wrist injury.
In connection with OWCP’s termination decision, appellant requested a hearing before an
OWCP hearing representative. During the December 28, 2012 hearing, counsel argued that the
reports of appellant’s attending physicians showed that he still had residuals of the July 8, 2000
work injury or at least that there was a conflict in the medical opinion evidence regarding workrelated residuals between Dr. Heist and appellant’s attending physicians.4
4

Appellant submitted a November 29, 2012 report of Dr. Oppenheimer and December 14, 2011 and February 29,
2012 reports of Dr. DiPaolo which contained discussions of appellant’s back and neck problems.

3

In a March 14, 2013 decision, an OWCP hearing representative affirmed the August 20,
2012 termination decision, finding that the weight of the medical evidence continued to rest with
the opinion of Dr. Heist.
Appellant submitted an April 12, 2013 report of Dr. Oppenheimer; the April 10, 24 and
30, 2013 reports of Dr. Alario; and a March 29, 2013 report of Dr. DiPaolo. Dr. Oppenheimer
advised that appellant’s neck condition was aggravated by his weight-bearing work duties.
Dr. Alario expressed disagreement with Dr. Heist’s opinion and stated that appellant’s back
problems were related to the July 8, 2000 work injury. Dr. Alario also indicated that appellant
continued to have residuals of the July 8, 2000 work injury.
In a July 31, 2013 decision, OWCP affirmed its March 14, 2013 decision finding that the
reports of appellant’s attending physicians were of limited probative value regarding appellant’s
work-related residuals.
In an October 31, 2013 decision, issued in connection with appellant’s October 19, 1994
right wrist injury, OWCP affirmed its October 18, 2012 decision. It rescinded its February 16,
2012 acceptance of appellant’s claim for a recurrence of disability on April 19, 2010 because the
acceptance had been made under the wrong claim file.
In a January 22, 2014 decision, OWCP affirmed its July 31, 2013 decision regarding the
termination of appellant’s wage-loss compensation and medical benefits. It found that the
reports of appellant’s attending physicians were of limited probative value regarding appellant’s
work-related residuals.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
OWCP initially accepted that on July 8, 2000 appellant sustained a lumbar sprain when
he sat down in a straight-back chair on that date. Appellant’s claim was later accepted for an
aggravation of lumbar disc displacement. By decision dated August 20, 2012, OWCP terminated
appellant’s wage-loss compensation and medical benefits effective August 25, 2012 based on the
second opinion reports of Dr. Heist, a Board-certified orthopedic surgeon serving as an OWCP
referral physician. Dr. Heist found that appellant had no continuing residuals or disability related
to the accepted July 8, 2000 work conditions.
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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The Board finds that the weight of the medical evidence with respect to this termination
matter is represented by the thorough, well-rationalized opinion of Dr. Heist. The reports of
Dr. Heist establish that appellant had no residuals of his July 8, 2000 employment injury after
August 25, 2012.
In an April 25, 2012 report, Dr. Heist discussed his review of the medical records and
detailed his findings on physical examination. He concluded that there was no medical evidence
of a condition causally related to the July 8, 2000 work injury. Dr. Heist indicated that there was
no basis for restrictions due to the July 8, 2000 work injury as there were no objective findings
supportive of continuing disability. He diagnosed chronic mid-lumbar sprain and noted that his
clinical examination of the lumbar spine documented a restriction in the last 10 degrees of
motion which he attributed to the underlying degenerative spinal disease. Dr. Heist stated,
“There are no medical findings that the conditions causally related to the employment injury
(sitting in a straight-backed chair) are still active. There are no objective findings related to the
injury. There is no current disability.” In his July 21, 2012 addendum report, Dr. Heist opined
that there was no objective evidence that appellant’s condition was causally related to the July 8,
2000 work injury or that there was a work-related condition that continued to be active.
The Board has carefully reviewed the opinion of Dr. Heist and finds that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Heist provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.8 Dr. Heist provided medical rationale for
his opinion by explaining that there were no objective signs of the July 8, 2000 work injury and
that appellant’s continuing back problems were due to the underlying degenerative condition.
Before OWCP and on appeal, counsel argued that the reports of appellant’s attending
physicians establish that appellant continues to have disabling residuals of the July 8, 2000 work
injury or at least create a conflict in medical opinion with Dr. Heist. The Board notes that,
although some of these reports posit that appellant continues to have residuals of the July 8, 2000
work injury, the physicians did not provide sufficient rationalized opinion on causal relationship.
For example, in April 10, 24 and 30, 2013 reports, Dr. Alario, an attending Board-certified
internist, noted that appellant continued to have residuals of the July 8, 2013 work injury.
However, he did not provide adequate explanation for his conclusion. In an April 12, 2013
report, Dr. Oppenheimer indicated that appellant’s neck condition was aggravated by his weightbearing work duties, but it has not been accepted that appellant sustained a neck injury on
July 8, 2000. The record does not otherwise establish the existence of such a work injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.9 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

9

5 U.S.C. § 8128.

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issue a new decision.10 The Board has noted, however, that the power to annul an award is not
an arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.11
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of the rationale for rescission.12
ANALYSIS -- ISSUE 2
In an October 31, 2013 decision, issued in connection with appellant’s October 19, 1994
right wrist injury, OWCP affirmed its October 19, 2012 decision. In that decision, it rescinded
its February 16, 2012 acceptance of appellant’s claim for a recurrence of disability on April 19,
2010 because the acceptance had been made under the wrong claim file. The Board finds that
OWCP adequately explained the basis for its rescission action and met its burden of proof.
OWCP explained that the rescission was due to the fact that the initial acceptance had been made
under the wrong claim file. Appellant was sent home when no work was available in connection
with his limited-duty work necessitated by his July 8, 2000 back injury. Therefore, it was
improper to accept the recurrence claim under the file for appellant’s October 19, 1994 right
wrist injury.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective August 25, 2012 on the grounds that he had no
residuals of his July 8, 2000 work injury after that date. The Board further finds that OWCP
properly rescinded its acceptance of appellant’s claim for a recurrence of disability on April 10,
2010 due to his accepted right wrist condition.

10

John W. Graves, 52 ECAB 160, 161 (2000).

11

See 20 C.F.R. § 10.610.

12

John W. Graves, supra note 10.

13

It should be noted that, in an October 18, 2012 decision issued in connection with his July 8, 2000 back injury,
OWCP advised appellant that it had accepted his claim that he sustained a recurrence of disability on April 19, 2010.

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ORDER
IT IS HEREBY ORDERED THAT the January 22, 2014 and October 31, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 18, 2014
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, THE
SURGEON GENERAL WALTER REED ARMY
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 14-1636
Issued: December 9, 2014

Case Submitted on the Record

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

JURISDICTION
On July 21, 2014 appellant filed a timely appeal from an April 18, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for a
hearing. The last merit decision of record was OWCP’s June 12, 2013 decision. Because more
than 180 days has elapsed between the June 12, 2013 decision and the filing of this appeal on
July 21, 2014, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2

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2

5 U.S.C. § 8101 et seq.

In her appeal, appellant references an August 29, 2012 decision. However, an appeal must be filed within 180
days of OWCP’s decision. 20 C.F.R. § 501.3(e). Consequently, the Board does not have jurisdiction over this
decision.

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
oral hearing.
FACTUAL HISTORY
On September 21, 2000 appellant, then a 50-year-old secretary, filed a traumatic injury
claim alleging that, while lifting cases of slides in the performance of duty on September 5,
2000, she pulled her back. Appellant stopped work on September 6, 2000. On November 3,
2000 OWCP accepted the claim for cervical strain, lumbar strain, and herniated discs at L3-4 and
L4-5 and provided compensation benefits.
On October 18, 2012 appellant filed a claim for a schedule award.
In a December 11, 2012 decision, OWCP denied the claim for a schedule award, finding
the medical evidence of record did not establish a permanent measurable impairment to a
scheduled member or function of the body.
Appellant’s representative requested a telephonic hearing with regard to the
December 11, 2012 decision, which was held on April 17, 2013.
By decision dated June 12, 2013, OWCP hearing representative affirmed the
December 11, 2012 decision
On March 25, 2014 appellant requested a hearing with regard to the December 11, 2012
decision. She asserted that her condition limited her activities and she was unable to work.
Appellant also submitted additional evidence.
By decision dated April 18, 2014, OWCP denied appellant’s request for a hearing as she
had previously received a hearing on the same issue, for which a decision was issued on
June 12, 2013. It exercised its discretion and considered her request, but found that it could be
adequately addressed through a reconsideration request and the submission of new evidence.
LEGAL PRECEDENT
Section 8124(b) of FECA provides that before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary is entitled, on request
made within 30 days after the date of issuance of the decision, to a hearing on her claim before a
representative of the Secretary.3
Section 10.615 of the federal regulations implementing this section of FECA provides
that the claimant shall be afforded a choice of an oral hearing or a review of the written record.4
OWCP’s regulations provide that the request must be sent within 30 days of the date of the
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

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decision for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.5
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.6 This includes the situation where a claimant requests a second
hearing on an issue. There is no provision in FECA for more than one hearing on the same
issue.7 If a request for a second hearing is made, appellant is not entitled to a hearing as a matter
of right, but OWCP must exercise its discretion in determining whether to grant a hearing.8
ANALYSIS
On March 25, 2014 appellant requested a hearing on the December 11, 2012 decision
denying her claim for a schedule award. She had previously requested and received a telephonic
hearing on April 17, 2013, regarding the December 11, 2012 decision. This resulted in the
hearing representative’s June 12, 2013 decision. As appellant previously received a telephonic
hearing, she is not entitled to another hearing as a matter of right. There is no provision in FECA
for more than one hearing on the same issue.9
When a claimant has previously requested reconsideration or requests a second hearing
on the same issue, OWCP must exercise its discretionary authority to grant or deny the hearing
request. It considered the issue and found that the matter could be equally well addressed by
submitting new and relevant evidence with an application for reconsideration. The Board finds
that OWCP properly exercised its discretion and did not abuse its discretion in denying
appellant’s hearing request.10
On appeal, appellant argues the merits of the claim. As previously noted, the Board does
not have jurisdiction to review the merits of the claim. She also submitted new evidence. The
Board cannot consider this evidence, however, as its review of the case is limited to the evidence
of record which was before OWCP at the time of its final decision.11

5

Id. at § 10.616(a).

6

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

7

See R.F., Docket No. 13-892 (issued July 5, 2013); John S. Baldwin, 35 ECAB 1161 (1984).

8

Id.

9

Id.

10

See Lawrence C. Parr, 48 ECAB 445 (1997).

11

20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

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CONCLUSION
The Board therefore finds that OWCP properly denied appellant’s request for an oral
hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2014
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE NAVY, U.S. MARINE
CORPS, CAMP PENDLETON, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-277
Issued: October 8, 2014

Case Submitted on the Record

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

JURISDICTION
On November 20, 2013 appellant, through his attorney, filed a timely appeal from an
October 17, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied his request for reconsideration because it was untimely filed and did not establish clear
evidence of error. As there is no merit decision regarding the issue on appeal that was issued
within 180 days of the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.

1

20 C.F.R. § 501.3(e).

2

5 U.S.C. §§ 8101-8193.

On appeal, appellant’s attorney asserts that OWCP erred because it had not adjudicated a
claimed work incident that occurred on December 4, 2013 when appellant claims he was
inappropriately monitored by microphone.
FACTUAL HISTORY
On July 22, 2005 appellant, then a 41-year-old firefighter, filed one page of an
occupational disease claim alleging that factors of his employment caused an emotional
condition. OWCP initially designated the claim as a duplicate of an occupational disease claim,
case adjudicated under file number xxxxxx758, but on July 14, 2009 determined it was a new
claim and forwarded it to the employing establishment to complete the form and return it to
OWCP for processing.3
In a letter dated September 23, 2010, OWCP asked the employing establishment to
respond to appellant’s allegation that on December 4, 2003 he was secretly microphoned and
baited into a confrontation with firefighter Traci Grant. On October 4, 2010 the employing
establishment forwarded Equal Employment Opportunity Commission (EEOC) documentation
including decisions dated June 2, 2006, February 12, 2007 and January 14, 2008, none of which
were favorable to him.
By decision dated May 13, 2011, OWCP found that appellant did not establish any
additional factors of employment and denied his claim. It noted that his allegation that he was
improperly monitored by microphone on December 4, 2003 had been properly and thoroughly
adjudicated under his other claim.
On July 26, 2013 appellant, through his attorney, requested reconsideration. He alleged
clear evidence of error in this case because, contrary to the assertion in its May 13, 2011 decision
in this claim under file number xxxxxx880, OWCP did not adjudicate the claimed December 4,
2003 microphoning incident in case file number xxxxxx758.
In an October 17, 2013 decision, OWCP denied appellant’s reconsideration request on
the grounds that his request was untimely filed and that he failed to present clear evidence of
error on the part of OWCP.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.4
When an application for review is untimely, OWCP undertakes a limited review to determine
3

Claim file number xxxxxx758 was accepted for adjustment reaction. In a January 29, 2008 decision, Docket
No. 07-1437, the Board affirmed a February 6, 2007 OWCP’s decision that found that appellant did not meet his
burden of proof to establish that his claimed disability on or after July 15, 2005 was causally related to the accepted
employment injury. On October 20, 2008 the Board denied appellant’s petition for reconsideration. Claim file
number xxxxxx758 is not presently before the Board.
4

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

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whether the application presents clear evidence that its final merit decision was in error.5 Its’
regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation set forth in section 10.607 of OWCP regulations, if the claimant’s
application for review shows “clear evidence of error” on the part of OWCP.6 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.8
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.9 The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP.10
ANALYSIS
The only decision before the Board is the October 17, 2013 decision in which OWCP
denied appellant’s request for reconsideration on the grounds that the request was untimely filed
and failed to demonstrate clear evidence of error. Appellant requested reconsideration with
OWCP on July 26, 2013, alleging that it committed clear evidence of error by not adjudicating a
claimed factor of employment. The Board finds that as more than one year has elapsed between
the most recent merit decision on this issue, an OWCP decision dated May 13, 2011 and

5

Cresenciano Martinez, 51 ECAB 322 (2000).

6

20 C.F.R. § 10.607.

7

See Alberta Dukes, 56 ECAB 247 (2005).

8

Robert G. Burns, 57 ECAB 657 (2006).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
10

Nancy Marcano, 50 ECAB 110 (1998).

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appellant’s request for reconsideration dated July 26, 2013, the request for reconsideration was
untimely.11
The Board, however, finds that appellant has established clear evidence of error.
Appellant, through counsel, asserted on appeal that OWCP erred because it had not adjudicated a
claimed work incident -- that on December 4, 2013 he was inappropriately monitored by
microphone. The Board has carefully reviewed both the xxxxxx758 and xxxxxx880 case records
and there is no evidence that the claimed December 4, 2003 monitoring incident has been
properly and thoroughly adjudicated by OWCP.
In the October 17, 2013 decision, OWCP denied appellant’s claim of error by stating that
the incident had been explained in a May 13, 2011 decision and in a February 6, 2007 hearing
representative decision. While the incident is mentioned, it merely stated, “Though he alleged he
was being monitored by a microphone and baited into a confrontation, this allegation was
identified and adjudicated under his previous claim as noted in the [February 6, 2007] decision
from the Branch of Hearings and Review…. Consequently, we will not readdress this allegation
since it occurred prior to [January 23, 2004] and was properly and thoroughly adjudicated under
appellant’s previous claim.”
In the February 6, 2007 decision, adjudicated under file number xxxxxx758, OWCP’s
hearing representative indicated that appellant testified at a December 6, 2006 hearing regarding
the claimed allegation that on December 4, 2003 he was secretly monitored “in a deliberate
attempt to bait him into violating a direct order not to speak with Firefighter Grant.” The hearing
representative stated that OWCP did not find this allegation factual and referred to a
January12, 2006 decision and statement of accepted facts in claim file number xxxxxx758. The
hearing representative stated that the seven factors of employment accepted by OWCP were
clearly outlined in the statement of accepted facts, the details of which were incorporated into the
decision by reference. The June 3, 2005 statement of accepted facts, however, does not
reference the taping incident.
The January 12, 2006 OWCP decision referenced the monitoring allegation, stating that
during a November 24, 2005 conference, appellant maintained that he was being secretly taped
and was advised by OWCP that this and perceived problems with his captain would be
considered new work factors and he should file a new Form CA-2 claim for these work
incidents. Appellant subsequently filed claim number xxxxxx880. The January 12, 2006
decision found that, although employment factors had been accepted on July 18, 2005, the
medical evidence did not establish that the claimed emotional condition was caused by the
accepted factors. Again, a review of the June 3, 2005 statement of accepted facts does not
reference the taping incident.
The Board finds that under these specific facts and circumstances, it is clear that
appellant’s allegation that he was secretly monitored has not previously been appropriately
adjudicated by OWCP with a statement of reasons in its final decision and therefore appellant
has established OWCP error. OWCP’s incomplete adjudication of the specific and clearly
enunciated employment factor does not satisfy its obligation to provide a decision with
11

20 C.F.R. § 10.607(a).

4

appropriate findings and clearly stated reasons.12 The case will be remanded to OWCP for an
appropriate decision on appellant’s claimed factor that he was secretly monitored.
CONCLUSION
The Board finds that appellant established clear evidence of error as OWCP failed to
properly address a claimed employment factor.
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: October 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

Tonja R. Hiebert, 55 ECAB 706 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-862
Issued: November 22, 2011

Case Submitted on the Record

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

JURISDICTION
On February 24, 2011 appellant filed a timely appeal from a December 1, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than seven percent left upper extremity
impairment for which he received a schedule award.
On appeal, appellant’s attorney asserts that the weight of the medical evidence rests with
the opinion of the attending physician or, at the very least, a conflict in medical evidence has
been created between the opinions of the attending physician and OWCP’s medical adviser.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 2, 2002 appellant, then a 36-year-old housekeeping aide, filed a traumatic
injury claim alleging that he injured his left wrist moving a desk. On April 24, 2002 OWCP
accepted the claim for neuritis of the dorsal ulnar sensory nerve of the left wrist and an
authorized left wrist arthroscopy was performed on May 13, 2002 for repair of a triangular
fibrocartilage complex (TFCC) tear. Appellant returned to modified duty on July 29, 2002.2
On March 23, 2010 appellant, through his attorney, requested a schedule award and
submitted a December 8, 2009 report in which Dr. David Weiss, an osteopath, reported that
physical examination demonstrated decreased range of motion of palmar flexion and ulnar
deviation of the wrist and no tenderness over the radiocarpal articulation, the TFCC or the distal
radio-ulnar joint. Watson shift, ulnar abutment, TFCC load and TFCC provocative tests were
negative. Dr. Weiss advised that, under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had
a class 1 impairment for a TFCC tear which, under Table 15-3, yielded a default value of eight
percent. He applied the grade modifiers, finding a grade modifier of 1 for Functional History
(GMFH), a grade modifier of 2 for Physical Examination (GMPE) and no modifier for Clinical
Studies (GMCS). Dr. Weiss then applied the applied the net adjustment formula and concluded
that appellant had a total nine percent impairment of the left upper extremity.4 On April 19,
2010 appellant submitted a schedule award claim.
In an April 28, 2010 report, Dr. Morley Slutsky, an OWCP medical adviser Boardcertified in occupational medicine, noted his review of the statement of accepted facts and
medical record, including Dr. Weiss’ report. He advised that the most impairing left wrist
diagnosis was TFCC tear, and agreed that this constituted a class 1 impairment. OWCP’s
medical adviser also agreed with Dr. Weiss’ assessment that of a grade modifier of 1 for GMFH
but disagreed with his finding of a grade modifier of 2 for GMPE. He stated that Dr. Weiss’
finding was not consistent with the requirements of section 15.7 of the A.M.A., Guides because
he documented only one motion per joint movement and, as such, the measurements relied upon
by Dr. Weiss were not valid for impairment rating purposes. OWCP’s medical adviser reported
that Dr. Weiss found no other objective findings, noting his report of no tenderness to the wrist
on physical examination. Dr. Slutsky advised that maximum medical improvement was reached
on December 8, 2009, applied the net adjustment formula, and concluded that appellant had a
seven percent left upper extremity impairment.
On May 10, 2010 appellant was granted a schedule award for a seven percent left upper
extremity impairment, for a total of 21.84 weeks, to run from December 8, 2009 to May 9, 2010.
On May 14, 2010 his attorney requested a hearing that we held by video teleconference on
September 8, 2010. Appellant testified that he continued to work light duty and described the
2

Appellant has two additional accepted employment injuries, a left wrist sprain adjudicated under File No.
xxxxxx485 and a left knee injury adjudicated under File No. xxxxxx882.
3

A.M.A., Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

4

Dr. Weiss also provided an impairment rating for appellant’s left lower extremity, not at issue in this case.
Supra note 2.

2

condition of his left wrist. His attorney argued that Dr. Weiss’ opinion constituted the weight of
the medical evidence or, that at the least, a conflict in medical evidence had been created.
In a December 1, 2010 decision, OWCP’s hearing representative affirmed the May 10,
2010 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.11 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to its medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.13

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 385-419.

12

Id. at 411.

13

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

3

ANALYSIS
The Board finds that appellant has no more than a seven percent permanent impairment
of the left upper extremity. Dr. Weiss, an attending physician and Dr. Slutsky, an OWCP
medical adviser, agreed that, under Table 15-3, Wrist Regional Grid, appellant had a class 1 left
upper extremity impairment due to a TFCC tear. They also agreed that the grade modifiers to be
used for GMFH was 1 and that a grade modifier was not applicable for GMCS. Dr. Weiss,
however, differed in their assessment of the grade modifier to be used for physical examination.
He advised that appellant had a modifier for physical examination of two, stating that this was
based on “observed and palpatory.” Dr. Weiss also indicated that an objective factor for his
impairment evaluation was decreased range of motion of palmar flexion and ulnar deviation.
However, as explained by Dr. Slutsky, section 15.7a of the A.M.A., Guides provides that, after a
warm-up, the rating physician must perform three measurements per joint motion, that the
measurements are then averaged, and that each of the three measurements should be within 10
degrees of the calculated average.14 There is no indication in his December 8, 2009 report that
Dr. Weiss followed these requirements. Dr. Slutsky’s opinion is therefore of diminished
probative value in this regard and is not sufficient to establish a conflict in medical evidence.
The Board finds that OWCP’s medical adviser properly utilized Table 15-3, Wrist
Regional Grid, identified the proper grade modifiers and applied the net adjustment formula, in
reaching his conclusion that appellant had a seven percent left upper extremity impairment.
There is no other medical evidence of record addressing the extent of appellant’s
permanent impairment under the appropriate edition of the A.M.A., Guides, which supports any
greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a seven percent permanent impairment
of the left upper extremity.

14

A.M.A., Guides supra note 3 at 464.

4

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 10-1194
Issued: December 13, 2010

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 26, 2010 appellant, through her attorney, filed a timely appeal from
December 7, 2009 and January 21, 2010 merit decisions of the Office of Workers’ Compensation
Programs granting her a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 17 percent permanent impairment of the left
lower extremity.
FACTUAL HISTORY
On August 8, 2008 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim alleging that she sustained blood clots in her left leg due to factors of her federal
employment. The Office accepted the claim for an aggravation of varicose veins of the left
lower extremity with ulcers.

On February 10, 2009 appellant filed a claim for a schedule award. On February 12,
2009 the Office requested that she submit an impairment evaluation from an attending physician
describing the extent of any permanent impairment.
By decision dated April 17, 2009, the Office denied appellant’s claim for a schedule
award. It found that she had not submitted an impairment evaluation as requested.
On April 27, 2009 appellant, through her attorney, requested a telephone hearing. At the
August 13, 2009 hearing, counsel asked the hearing representative to hold the record open for
submission of an impairment evaluation in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
In an impairment evaluation dated September 23, 2009, Dr. Jeffrey F. Wirebaugh, Boardcertified in family medicine, discussed appellant’s complaints of constant aching in the left leg
with increased pain after standing, swelling around “the area of ulceration” and “episodic skin
breakdown with seepage and at times some bloody drainage.” On examination he found an area
of healed ulceration of the anterior and medial leg with atrophic and hyperpigmented skin.
Dr. Wirebaugh further found “two areas of superficial ulceration with a transudate kind of
seepage. There is mild soft tissue swelling distal to the scar area.” Citing to the sixth edition of
the A.M.A., Guides, Dr. Wirebaugh stated:
“Referring to the lower extremity peripheral vascular disease grid on page 69
[appellant] has a Class 2 impairment. This is based on the evidence of persisting
vascular disease with superficial ulceration. The C grade of default percentage is
17 percent.
“The functional history is a Grade 2 modifier due to the persistent edema partially
controlled by elastic support. The physical findings grade modifier is 2 due to the
persisting vascular disease with superficial ulceration. The objective test results
are a Grade 2 modifier due to the abnormal ultrasound and angiographic
abnormalities found at the time of her deep vein thrombosis.
“The grade modifiers result in no change in the default or Grade C percentage of
17 percent.”
He concluded that appellant had 17 percent permanent impairment of the left lower extremity.
Dr. Wirebaugh found that she had reached maximum medical impairment.
By decision dated November 20, 2009, the hearing representative vacated the April 17,
2009 decision. She found that the Office should refer Dr. Wirebaugh’s September 23, 2009
evaluation to an Office medical adviser for review.
On November 23, 2009 an Office medical adviser concurred with Dr.Wirebaugh’s
finding that appellant had 17 percent permanent impairment due to a Class 2 impairment with
ulceration. He utilized the Table 4-12 on page 69 of the sixth edition of the A.M.A., Guides,
applicable to determining impairments of the lower extremity due to peripheral vascular disease,
in reaching his conclusion.

2

By decision dated December 7, 2009, the Office granted appellant a schedule award for
17 percent permanent impairment of the left lower extremity. The period of the award ran for
48.96 weeks from September 23, 2009 to August 31, 2010.
On January 4, 2010 appellant requested reconsideration. She described the problems she
experienced with her leg over the years. Appellant submitted progress reports dated 2007 and
2008. The progress reports did not address the extent of any permanent impairment.
By decision dated January 21, 2010, the Office denied modification of its December 7,
2009 decision. It noted that appellant had not submitted any medical evidence with her
reconsideration request relevant to determining the extent of her permanent impairment of the
left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing federal regulations,2 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.3 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.4
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).5 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
The Office accepted that appellant sustained an aggravation of varicose veins with ulcers
in the left lower extremity due to factors of her federal employment. On February 10, 2009
appellant filed a claim for a schedule award. In an impairment evaluation dated September 23,
2009, Dr. Wirebaugh listed findings of healed ulceration with atrophic and hyperpigmented skin
in the left anterior and medial leg. He also found superficial ulceration and seepage with mild
swelling of the soft tissue. Dr. Wirebaugh noted that appellant complained of constant aching in
her leg, increased pain with standing, swelling around the ulceration and periodic skin
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id. at § 10.404(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
5

A.M.A., Guides at 494-531.

3

breakdown, seepage and bloody drainage. Applying Table 4-12 of the sixth edition of the
A.M.A., Guides, he found that she had a Class 2 impairment due to peripheral vascular disease
with continued superficial ulceration. Dr. Wirebaugh identified the default percentage for a
Class 2 impairment as 17 percent. He then found that the grade modifier of 2 for functional
history (GMFH) was due to appellant’s persistent edema. Dr. Wirebaugh also found that she had
a grade modifier of 2 for physical examination (GMPE) based on her ulceration and a grade
modifier of 2 for clinical studies (GMCS) due to her abnormal ultrasound and angiogram.
Applying the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he
determined that appellant should receive no adjustment from the default grade. Dr. Wirebaugh
concluded that she had 17 percent permanent impairment of the left lower extremity. An Office
medical adviser reviewed Dr. Wirebaugh’s findings on November 23, 2009 and concurred with
his determination that appellant had 17 percent left lower extremity impairment under the sixth
edition of the A.M.A., Guides. The Board finds that the evidence supports that she has no more
than 17 percent permanent impairment of the left lower extremity. There is no other medical
evidence of record addressing the extent of appellant’s permanent impairment.
CONCLUSION
The Board finds that appellant has no more than 17 percent permanent impairment of the
left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2010 and December 7, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 13, 2010
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

4


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

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

Docket No. 16-1868
Issued: March 13, 2017

Case Submitted on the Record

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

JURISDICTION
On September 21, 2016 appellant filed a timely appeal from an August 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established additional compensable work factors in
support of her emotional condition claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts as presented in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On February 23, 2011 appellant filed a claim for occupational disease (Form CA-2)
alleging that she was subject to harassment and bullying by management and coworkers,
including having a noose hung in the office.
OWCP initially denied appellant’s claim on April 4, 2011, finding that the evidence of
record failed to establish that the incidents occurred as alleged.
On April 11, 2011 appellant requested reconsideration. By decision dated July 8, 2011,
OWCP denied modification of the April 4, 2011 decision, finding that appellant had not
established any compensable work factors. Appellant again requested reconsideration on
August 2, 2011. In a decision dated October 31, 2011, OWCP noted that “the majority of your
claim cites work factors which were previously claimed” under File No. xxxxxx247. It again
found no compensable work factors were established. On November 15, 2011 appellant again
requested reconsideration. In a decision dated February 13, 2012, OWCP found that appellant
had not established any compensable work factors. The decision stated that the evidence was
now sufficient to establish “your supervisor improperly called your psychologists office” in early
2010, but this was not a compensable work factor. Appellant again requested reconsideration on
February 21, 2012. By decision dated June 8, 2012, OWCP found that no compensable work
factors had been established.
On June 22, 2017 appellant appealed the June 8, 2012 decision to the Board. By order
dated February 27, 2013, the Board remanded the case to OWCP.3 The Board noted that in its
June 8, 2012 decision OWCP had referred to File No. xxxxxx247 pertaining to a claim for
emotional condition filed on January 24, 2010. As most of the alleged employment factors had
been considered under that claim. The Board remanded the case to combine the case files for
proper adjudication of the issue.
On remand OWCP combined File No. xxxxxx247 with the present claim, File No.
xxxxxx429, with xxxxxx247 serving as the master file.4
The combined case record establishes that by decision dated July 22, 2010 under File No.
xxxxxx247, OWCP accepted the following as compensable work factors: (1) Between late 2007
and January 2008 a noose was hanging in an employee’s desk area and upon notifying
management it was not removed and no action was taken until late January 2008; (2) a coworker
2

Docket No. 12-1434 (issued February 27, 2013); Docket No. 14-1423 (issued November 21, 2014).

3

Supra note 2.

4

In the initial claim (OWCP File No. xxxxxx247), appellant filed a Form CA-2 on February 24, 2010, alleging
that she was subject to harassment, being singled out, having work taken away, being subject to changing schedules
and worksites. She also made an allegation in a March 3, 2010 statement of seeing a noose hanging at one of the
carrier’s cases.

2

called appellant “cuckoo” and made “cuckoo” sounds in her vicinity following a conversation
about the noose; (3) a note left for a supervisor regarding her route used derogatory language;
and (4) appellant’s supervisors and coworkers had access to her personal medical information
and the contents of her Equal Employment Opportunity (EEO) complaints; and (5) her
supervisor contacted her physician to request private health information and refused to honor her
doctor’s note. It, however, found the medical evidence of record was insufficient to establish an
employment-related emotional condition due to any of the compensable factors.
On January 20, 2011 OWCP accepted the claim for major depressive disorder, single
episode and adjustment disorder, mixed anxiety and depressed mood. It advised appellant that if
she had lost time due to the employment injury, she could claim compensation by submitting a
CA-7 claim for compensation. On May 17, 2011 appellant submitted a Form CA-7 claim for
compensation for wage loss during the period January 25 to April 18, 2010. OWCP paid
appellant compensation for the period claimed.
Appellant submitted a March 1, 2012 statement alleging additional employment factors
under File No. xxxxxx420. She alleged her privacy had been violated by a Supervisor Sloan,
who called her physician. According to appellant, she was subject to disparate treatment and
derogatory comments. She alleged that on February 15, 2011 she was referred to as “the trash”
by supervisors and her supervisor’s violation of regulations had caused a hostile environment.
Appellant also referred to a Supervisor Walicki, who she alleged retaliated against her for filing
EEO complaints. She noted a letter of warning and stated that her route was “screwed up” and
caused her stress.
By decision dated March 17, 2014, OWCP reviewed appellant’s March 1, 2012
allegations and found no additional compensable work factors had been established. Appellant
appealed to the Board.
In a November 21, 2014 decision, the Board reviewed the March 17, 2014 decision and
found that appellant had established an additional compensable work factor in that the employing
establishment had contacted appellant’s treating physician by telephone.5
On December 30, 2014 appellant submitted a September 13, 2013 decision of the Merit
Systems Protection Board (MSPB).6 She contended in her MSPB appeal that she submitted
medical evidence in February 2012, and the employing establishment had improperly failed to
consider her request to be restored to her position. The MSPB decision found that although
OWCP had not accepted disability commencing in February 2011, OWCP had accepted an
emotional condition and was paying medical benefits. According to the MSPB, “appellant’s
absence in 2011-12 was substantially related to a compensable medical condition.” Therefore,
“because the [employing establishment] failed to recognize that appellant was absent due to her
5

Docket No. 14-1423 (issued November 21, 2014).
April 22, 2015).
6

Order Denying Petition for Reconsideration (issued

The evidence was submitted to the Board on a petition for reconsideration. The Board noted in an order
denying the petition for reconsideration (issued April 22, 2015) that the MSPB decision was not before OWCP and
could not be reviewed on appeal docketed as No. 14-1423.

3

compensable injury, it failed to recognize that her attempt to return to work was a request for
restoration [of her position] and therefore treated her request solely as one for reasonable
accommodation.” MSPB found the employing establishment had erred because it waited three
weeks to restore appellant’s position.
On May 18, 2015 appellant requested reconsideration. She argued that incidents on
November 14, 2012 had caused an employment-related condition and Dr. Michael Schwartz had
submitted a statement regarding the incidents. Appellant asserted OWCP had addressed this
evidence, or the MSPB findings.
By decision dated December 30, 2015, OWCP reviewed the merits and denied
modification. It found appellant had not established any additional compensable work factors.
OWCP reviewed the final order from MSPB and that the order found that the employing
establishment had erred in restoring leave for a closed period, but did not discuss any
compensable factors of employment and did not contain an admission of error by the employing
establishment regarding the FECA claim.
Appellant again requested reconsideration on January 20, 2016. She asserted that
statements dated July 29, 2011 and March 1, 2012 that related the effects of
Supervisor Walicki’s “unreasonable demands,” and this evidence had not been properly
reviewed. In addition, appellant asserted that the December 30, 2014 MSPB decision showed
error by the employing establishment. She also referred to the employing establishment
contacting her physician, and asserted that she was told she could not submit a Form CA-7.
By decision dated August 17, 2016, OWCP reviewed the merits and denied modification
of its prior decision. It found appellant had not established any additional compensable work
factors.
LEGAL PRECEDENT
Appellant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.7 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
7

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

8

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

4

position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.9
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.10 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.11
ANALYSIS
In the present case, OWCP accepted the claim for major depressive disorder, single
episode, severe, and adjustment disorder, mixed anxiety and depressed mood. The accepted
compensable work factors are: (1) Between late 2007 and January 2008 a noose was hanging in
an employee’s desk area and upon notifying management it was not removed and no action was
taken until late January 2008; (2) a coworker called appellant “cuckoo” and made “cuckoo”
sounds in her vicinity following a conversation about the noose; (3) a note left for a supervisor
regarding her route used derogatory language; and (4) appellant’s supervisors and coworkers had
access to her personal medical information and the contents of her EEO complaints; and (5) her
supervisor contacted her physician to request private health information and refused to honor her
doctor’s note.
The only issue presented on appeal is whether appellant has established any additional
compensable work factors. Appellant indicated on appeal that on May 17, 2011 she submitted a
Form CA-7 claim for wage-loss compensation during the period January 25 to April 18, 2010.
However, there was no Form CA-7 claim for a particular period of wage-loss resulting from the
accepted injuries that was submitted prior to the August 17, 2016 OWCP decision. OWCP did
not deny any claim for wage loss in the August 17, 2016 decision on appeal.
Following the Board’s November 21, 2014 review of the merits of the claim, appellant
continued to allege that she had established other compensable factors of employment. In her
May 18, 2015 request for reconsideration appellant alluded to incidents that occurred on
November 14, 2012. However the record does not contain any evidence or other clarification
relating to such events. Appellant’s vague and unsubstantiated allegation is not compensable.12

9

Lillian Cutler, 28 ECAB 125 (1976).

10

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

11

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

12

M.P., Docket No. 09-2248 (issued September 27, 2010). Appellant’s vague and unsubstantiated allegation of
intimidation is not evidence of error or abuse; see also J.T., Docket No. 11-233 (issued January 25, 2012). An
unsubstantiated allegation of harassment is not determinative of whether such harassment or discrimination
occurred.

5

Appellant’s January 20, 2016 reconsideration request referred to statements dated
July 29, 2011 and March 1, 2012. She submitted an August 1, 2011 statement with allegations
regarding the supervisor, but it is not clear whether there was a July 29, 2011 statement. The
record contains a March 1, 2012 statement from appellant with allegations against her
supervisors. This evidence was reviewed by OWCP in the March 17, 2014 decision and by the
Board in its November 21, 2014 decision. It does not establish any additional compensable work
factors.
Appellant also submitted a September 13, 2013 decision from the MSPB. The Board
notes that an MSPB decision can be evidence of error by the employing establishment that
supports a finding of a compensable work factor,13 but the Board reviews the evidence and
makes a determination as to the probative value to the claim under FECA.14 The Board finds the
September 13, 2013 MSPB decision is of little probative value with regard to a compensable
work factor under FECA. The MSPB decision acknowledged that OWCP had not accepted
disability or paid wage-loss compensation for absences in 2011 and 2012. Yet the decision
determines that “appellant’s absence in 2011 to 2012 was substantially related to a compensable
medical condition.” The employing establishment was therefore held to have erred in
February 2012 when appellant submitted medical evidence, and the employing establishment
failed to properly consider this as a request to restore her position. The Board does not agree that
the evidence had established that appellant’s absences from February 2011 to February 2012
were “related to a compensable medical condition.” Appellant had not claimed wage-loss
compensation. OWCP had not made a determination as employment-related disability
commencing February 2011. Accepting a claim and paying medical benefits does not establish a
period of disability.15 Any finding of error by the employing establishment that was based on a
finding that appellant was absent due to a compensable medical condition is not supported by the
record. The Board accordingly finds that the September 13, 2013 MSPB decision does not
establish a new compensable work factor based on error in an administrative matter.16
On appeal, appellant refers to the recent filing of a Form CA-7. As noted above, there
was no claim for a specific period of compensation submitted prior to the August 17, 2016
decision on appeal. The Board reviews only evidence that was before OWCP at the time of the
final decision on appeal.17 Appellant may pursue any claim for a specific period of disability
with OWCP, but for the reasons discussed above, appellant has not established any additional
compensable work factors.

13

J.F., 59 ECAB 331 (2008) (finding by MSPB that appellant’s assignment to parcel sorting was unreasonable
lacked adequate support in a proceeding under FECA, and did not establish error by the employing establishment).
14

Id.

15

Ronnie J. Griffin, Docket No. 95-2297 (issued July 14, 1997) (entitlement to medical benefits does not
establish entitlement to disability compensation); see also E.A., Docket No. 10-0339 (issued September 14, 2010)
(medical evidence was sufficient to accept the claim, but not to establish a period of disability).
16

Supra note 13.

17

20 C.F.R. § 501.2(c)(1).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established any additional compensable work
factors in support of her emotional condition claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2016 is affirmed.
Issued: March 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dayton, OH, Employer
__________________________________________

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

Docket No. 17-0942
Issued: February 9, 2018

Case Submitted on the Record

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

JURISDICTION
On March 30, 2017 appellant filed a timely appeal from a March 21, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
from work for the period October 14, 2015 through February 3, 2016, causally related to her
accepted employment-related left knee injuries.
FACTUAL HISTORY
OWCP accepted that on February 14, 1996 appellant, then a 29-year-old letter carrier,
stepped in a hole and twisted her left knee, which caused a left knee strain, left medial meniscus
tear, and chondromalacia of the left knee. It later accepted that, on January 16, 1997, she twisted
1

5 U.S.C. § 8101 et seq.

her left knee when she stepped out of her delivery vehicle, causing a new traumatic left knee
strain and left lateral meniscus tear.2 The employing establishment terminated appellant from
employment, effective March 20, 1998, for failure to follow instructions.
On January 21, 1999 appellant underwent an authorized arthroscopic partial lateral
meniscectomy.3 In an April 21, 1999 letter, Dr. Donald W. Ames, an attending orthopedic
surgeon, opined that appellant required permanent work restrictions. He administered periodic
left knee injections. Appellant participated in physical therapy in April and May 1999. She
remained off work.
On October 26, 2006 and November 15, 2006 OWCP obtained a second opinion
regarding appellant’s work capacity from Dr. Alvars Vitols, an osteopathic physician Boardcertified in orthopedic surgery. Dr. Vitols opined that appellant no longer had any residuals from
the accepted left knee injuries, and returned her to full-time sedentary work.
OWCP found a conflict in the medical opinion evidence between Dr. Vitols, for the
government, and Dr. Ames, for appellant, regarding appellant’s work capacity and the presence
of continuing injury-related residuals. To resolve the conflict, it appointed Dr. James
Rutherford, a Board-certified orthopedic surgeon, as an impartial medical examiner.
Dr. Rutherford submitted a February 12, 2007 report, in which he opined that the accepted left
knee injuries had remained active and partially disabling. He found that appellant could perform
full-time sedentary work with occasional lifting and carrying up to 15 pounds, occasional
bending, standing, and walking, and no stooping, climbing, or crawling.
Based on Dr. Rutherford’s opinion that appellant was no longer totally disabled from
work, OWCP referred appellant for vocational rehabilitation. Following vocational testing and a
job placement effort, appellant began work as a part-time receptionist and cleaner at a private
sector flooring business in June 2008. As the flooring company could not offer her enough
hours, appellant began work as a cashier/clerk at a private sector discount store effective July 19,
2008, earning wages of $7.50 an hour. OWCP paid appellant wage-loss compensation for the
difference between her date-of-injury wages and her actual earnings as a cashier/clerk.
By notice dated December 9, 2008, OWCP notified appellant of its proposal to reduce her
wage-loss compensation benefits based on her ability to perform the constructed position of
receptionist, Department of Labor, Dictionary of Occupational Titles, DOT #237.367.038, with
entry level wages of $415.20 a week in appellant’s commuting area as of a March 30, 2008 labor
market survey. It afforded her 30 days to submit additional evidence or argument pertinent to
the proposed reduction of her wage-loss compensation. Appellant did not submit additional
evidence on this issue.
By decision dated January 12, 2009, OWCP reduced appellant’s wage-loss compensation
effective January 10, 2009, based on her projected ability to earn $415.20 a week as a
2

OWCP accepted the January 16, 1997 claim under OWCP File No. xxxxxx958. The February 14, 1996 claim
was developed under File No. xxxxxx811. OWCP had administratively combined File Nos. xxxxxx958 and
xxxxxx811, with the latter serving as the master file.
3
OWCP paid appellant wage-loss compensation for temporary total disability on the daily rolls commencing
January 21, 1999 and on the periodic rolls commencing October 10, 1999.

2

receptionist. It paid wage-loss compensation under the January 12, 2009 loss of wage-earning
capacity determination (LWEC) on the periodic rolls commencing January 10, 2009.4
On February 17, 2012 appellant underwent an authorized left arthroscopic partial lateral
meniscectomy, performed by Dr. Ames. OWCP paid appellant wage-loss compensation for
temporary total disability commencing February 17, 2012.
In a March 6, 2012 compensation termination sheet, OWCP noted that appellant had been
entitled to wage-loss compensation for temporary total disability following the February 17,
2012 surgery, “so terminating the LWEC.”5
To obtain updated information concerning appellant’s work capacity, on April 22, 2013,
OWCP obtained a second opinion report from Dr. E. Gregory Fisher, a Board-certified
orthopedic surgeon. Dr. Fisher noted that appellant had remained unemployed. He opined that
the accepted left knee chondromalacia had remained active and partially disabling. Dr. Fisher
returned appellant to full-time limited duty, with walking and standing permanently restricted to
two hours a day, and lifting, pushing, and pulling limited to 10 pounds frequently and 20 pounds
occasionally. He found that appellant had attained maximum medical improvement.
As Dr. Fisher opined that appellant was no longer totally disabled from work, OWCP
referred appellant for vocational rehabilitation on May 2, 2013. A May 8, 2013 labor market
survey had identified the positions of receptionist (DOT #237.367.038) and hospital admitting
clerk (DOT #237.367-038) as within the medical limitations provided by Dr. Fisher and
commensurate with her vocational experience and aptitudes.
By notice dated May 15, 2013, OWCP notified appellant of its proposal to reduce her
wage-loss compensation based on her ability to perform the constructed position of receptionist,
with entry level wages of $415.20 a week. It afforded her 30 days to submit additional evidence
or argument pertinent to the proposed reduction of her wage-loss compensation. Appellant did
not submit additional evidence on this issue. In a June 26, 2013 decision, OWCP reduced her
wage-loss compensation effective that day, based on her ability to earn $415.20 a week in the
constructed receptionist position. It found that these wages properly represented appellant’s
LWEC.
Appellant remained off work. She underwent periodic injections by Dr. Ames for
continued left knee immobility and pain. Dr. Ames diagnosed “left knee degenerative change
secondary to the avascular necrosis of the lateral condyle of the femur,” and localized
osteoarthritis of the left knee.

4
Appellant advised OWCP that she stopped working her private sector job in September 2009 after her left knee
gave out. She remained off work. Appellant underwent periodic medical treatment for residuals of the accepted left
knee injuries.
5

Dr. Ames provided periodic progress notes. To help determine appellant’s work capacity, OWCP obtained a
second opinion report on July 31, 2012 from Dr. Albert E. Becker, Jr., a Board-certified orthopedic surgeon.
Dr. Becker noted that appellant had not returned to work. He opined that appellant could not perform the duties of a
receptionist due to continued left knee immobility and pain. Dr. Becker returned appellant to limited-duty work for
four hours a day, with restrictions.

3

Dr. Ames submitted an October 14, 2015 medical report in which he opined that
appellant was unsafe as her left knee had given way several times, causing her to fall. He noted
that physical therapy had not been effective and that bracing “would not help this knee.”
Dr. Ames recommended a partial left knee replacement. In a separate October 14, 2015 report,
he explained that appellant had developed “avascular necrosis about the left knee lateral distal
femur” and “post-traumatic osteoarthritis of the left knee in the lateral compartment.”
Appellant’s symptoms had worsened such that she fell “on a regular basis because of giving way
of the left knee secondary to pain.” Dr. Ames recommended a unicompartmental left knee
replacement.
In a January 21, 2016 report, Dr. Ames noted that when he had examined appellant on
October 14, 2015, he discussed her left knee condition. He opined that appellant’s left knee had
worsened “to where the knee is giving out and she is falling and unsafe which is a concern for
her to continue working.”
OWCP interpreted Dr. Ames’ January 21, 2016 letter to indicate that appellant had
claimed a recurrence of total disability due a material change or worsening of the accepted left
knee injuries. In a January 29, 2016 development letter, it notified appellant of the type of
additional evidence needed to demonstrate a recurrence of total disability, including a
comprehensive, narrative medical report from her attending physician supporting that her current
condition had remained causally related to the accepted left knee injuries, and describing the
specific job duties that appellant could no longer perform as of the date of the claimed recurrence
of total disability. OWCP afforded appellant 30 days to submit such evidence.
On February 4, 2016 appellant underwent authorized partial left knee arthroplasty to
address sequelae of the accepted left knee injuries. OWCP paid her wage-loss compensation for
temporary total disability commencing February 4, 2016.6 Dr. Ames submitted reports dated
January 21, February 4 and 22, 2016, in which he reiterated that appellant had been totally
disabled from work commencing October 14, 2015. In a report dated May 9, 2016, he returned
appellant to work effective August 8, 2016.
By decision dated May 27, 2016, OWCP denied appellant’s claim for wage-loss
compensation for temporary total disability for the period October 14, 2015 to February 3, 2016
because the medical evidence of record failed to demonstrate a material worsening of the
accepted left knee injuries. It found that Dr. Ames opined only that appellant might sustain a
future injury were she to fall due to the deteriorated condition of her left knee. OWCP noted that
fear of future injury was not compensable under FECA.7
In an appeal form postmarked June 24, 2016, appellant requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review.
To ascertain the nature and extent of appellant’s continuing injury-related condition,
OWCP obtained a second opinion from Dr. Gerard Papp, an osteopath Board-certified in
6

OWCP continued to pay appellant wage-loss compensation for temporary total disability through February 4,
2017 and continuing. It placed her case on the periodic roll effective February 5, 2017.
7

Supra note 1.

4

orthopedic surgery. In a November 16, 2016 report, Dr. Papp opined that appellant no longer
had any residuals of the accepted left knee injuries or any nonoccupational conditions of the left
knee, but remained disabled from her date-of-injury position due to limited left knee motion
caused by the February 4, 2016 authorized surgery. In a January 10, 2017 supplemental report,
Dr. Papp opined that her left knee condition was idiopathic in nature. He posited that the
objective loss of left knee extension could be attributed to noncompliance with physical therapy,
although the medical record did not indicate any failure to cooperate. Dr. Papp found appellant
medically unable to resume her date-of-injury position as a letter carrier, or perform the duties of
a receptionist.
During the hearing, conducted on February 1, 2017, appellant contended that Dr. Ames’
reports demonstrated her total disability for work commencing October 14, 2015. She provided
progress reports from Dr. Ames dated from June 20, 2016 through January 4, 2017. Dr. Ames
held appellant from work due to postoperative knee pain. Appellant participated in physical
therapy. In a February 20, 2017 report, Dr. Ames opined that she was unable to perform the
duties of a cashier/clerk from October 2015 through February 2016 “due to severe osteoarthritis
and avascular necrosis of the knee joint” as she could not “stand for long periods and squat
often.”
By decision dated March 6, 2017, a hearing representative affirmed OWCP’s May 27,
2016 decision, finding that the medical evidence of record failed to demonstrate a material
worsening of the accepted left knee injuries, sufficient to warrant modification of the June 26,
2013 LWEC determination. OWCP found that Dr. Papp’s opinion as second opinion examiner
represented the weight of the medical evidence.
In a March 17, 2017 file memorandum, OWCP advised that it would set aside Dr. Papp’s
November 16, 2016 and January 10, 2017 reports as they were equivocal and contradictory.
By decision dated March 21, 2017, OWCP reversed the March 6, 2017 decision, and
found that appellant had met her burden of proof to modify the June 26, 2013 LWEC
determination. It found that Dr. Ames’ October 14, 2015 medical report demonstrated that the
accepted left knee injuries had worsened such that appellant could no longer perform the duties
of a receptionist, the position on which OWCP had based the June 26, 2013 LWEC
determination. OWCP authorized payment of wage-loss compensation for total disability
commencing February 4, 2016. However, it further found that the medical evidence of record
failed to demonstrate that appellant was totally disabled from all work for the period October 14,
2015 through February 3, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.9 Under FECA, the term
“disability” is defined as an inability, due to an employment injury, to earn the wages the
employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wage8

Supra note 1.

9

Joe D. Cameron, 41 ECAB 153 (1989).

5

earning capacity.10 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled from work as a result of the accepted employment
injury.11 Whether a particular injury causes an employee to become disabled from work and the
duration of that disability are medical issues that must be proved by a preponderance of
probative and reliable medical opinion evidence.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.13
ANALYSIS
OWCP accepted that appellant sustained left knee strains, a left medial meniscus tear, left
lateral meniscus tear, and chondromalacia of the left knee. It paid wage-loss compensation for
temporary total disability from January 21, 1999 through June 2008, followed by compensation
for partial wage loss through January 9, 2009, and compensation under a formal LWEC
determination effective January 10, 2009. Appellant stopped work on February 17, 2012 to
undergo authorized left knee surgery. OWCP set aside the LWEC and resumed payment of total
disability compensation commencing February 17, 2012.
By LWEC determination dated June 26, 2013, OWCP reduced appellant’s wage-loss
compensation based on her projected earnings in the selected position of receptionist. It paid her
wage-loss compensation under the LWEC through February 3, 2016. Appellant underwent
partial left knee arthroplasty on February 4, 2016. OWCP resumed payment of compensation for
temporary total disability effective February 4, 2016. In its March 21, 2017 decision, however, it
found that the medical evidence did not establish that appellant was totally disabled from all
work for the period October 14, 2015 through February 3, 2016.
Appellant has the burden of proof to demonstrate by the weight of the substantial, reliable
and probative evidence that she was totally disabled from work for the claimed period due to the
accepted left knee injuries.14
In support of her claim, appellant provided medical reports from Dr. Ames, an attending
Board-certified orthopedic surgeon. In his report of October 14, 2015, Dr. Ames explained that
appellant could not be safe at work as she had fallen several times when her left knee gave way.
In a January 21, 2016 letter, he recalled that, on October 14, 2015, he found that appellant was
“falling and unsafe which is a concern for her to continue working.” Dr. Ames submitted reports
dated from January 21 to February 22, 2016, in which he noted that appellant had been totally
10

See Prince E. Wallace, 52 ECAB 357 (2001).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Gary J. Watling, 52 ECAB 278 (2001).

13

Fereidoon Kharabi, 52 ECAB 291 (2001).

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

6

disabled from work commencing October 14, 2015. However, he did not explain how and why
the accepted left knee injuries would totally disable appellant from work for the claimed period.
In the absence of such medical rationale, Dr. Ames’ opinion is insufficient to meet appellant’s
burden of proof.15 Insofar as he held appellant from work out of concern that she might continue
to fall, the Board has held that fear of future injury is not compensable.16
The Board notes that OWCP advised appellant by January 29, 2016 letter of the type of
evidence needed to establish her claim for wage-loss compensation, including her physician’s
well-reasoned explanation of how the accepted injuries disabled her from all work for the dates
claimed. However, appellant has not submitted such evidence. Therefore, she failed to meet her
burden of proof to establish total disability from work for the period October 14, 2015 through
February 3, 2016.
On appeal, appellant contends that Dr. Ames’ October 14, 2015 medical report
demonstrates total disability from all work for the period October 14, 2015 through
February 3, 2016. As explained above, she has not submitted sufficient rationalized evidence to
establish disability for work for the claimed period.
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish total
disability from work for the period October 14, 2015 through February 3, 2016, causally related
to her accepted employment-related left knee injuries.

15

Supra note 13.

16

L.J., 59 ECAB 408 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2017 is affirmed.
Issued: February 9, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 08-1600
Issued: July 13, 2009

Case Submitted on the Record

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

JURISDICTION
On April 13, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 7, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined appellant’s entitlement to
compensation for wage loss from February 25, 2001 to January 16, 2007.
FACTUAL HISTORY
The case has previously been before the Board. In a December 16, 2003 decision, the
Board found that appellant was at fault in creating a $8,049.00 overpayment of compensation.1
The Board also found that appellant was not entitled to wage-loss compensation from
February 25 to March 8, 2001, as he received a schedule award covering this period. In a
1

Docket No. 03-1614 (issued December 16, 2003).

decision dated January 6, 2006, the Board found that the record required further development
regarding wage-loss compensation from December 30, 2001 to February 6, 2002.2 The Board
indicated that the issue of whether appellant had sustained an employment-related sleep disorder
was still under development and that issue must be resolved before the wage-loss compensation
issue could be adjudicated. The history of the case as contained in the Board’s prior decisions is
incorporated herein by reference.
The Office further developed the medical evidence and accepted a sleep disorder as a
consequential injury. By decision dated January 9, 2007, the Office denied appellant’s claim for
compensation from December 30, 2001 to February 6, 2002.
On January 4, 2007 appellant submitted a claim for compensation (Form CA-7) from
March 14, 2005 to December 7, 2006. The time analysis forms (CA-7a) showed appellant had
worked generally between six to seven hours per day, with one to two hours of leave without
pay. There were several dates that the employing establishment indicated appellant had worked
more than eight hours.
By decision dated April 2, 2007, an Office hearing representative reversed the January 9,
2007 decision.
On April 12, 2007 appellant submitted a CA-7 for the period December 9, 2006 to
January 18, 2007. In an April 10, 2007 letter, appellant argued that the employing establishment
had improperly included overtime hours as hours “worked” on the CA-7a forms.
By decision dated August 1, 2007, the Office found appellant was entitled to wage-loss
compensation for the hours claimed on the CA-7 and CA-7a forms. It noted that appellant had
already received compensation pursuant to schedule awards from February 23 to December 24,
2001 and April 18 to October 31, 2005. According to the Office, appellant was entitled to
1,215.91 hours from February 24, 2002 to November 25, 2004, 1.98 hours on January 27, 2005,
12 hours from March 6 to 13, 2005, 31.75 hours from March 14 to April 17, 2005 and 410.92
hours from November 1 to January 16, 2007. The total number of hours for the period was
therefore 1,672.56. In addition, for the period December 30, 2001 to February 6, 2002, the
Office determined that appellant was entitled to an additional $208.12. This represented an
adjustment in the pay rate based on 3 days of Sunday premium pay and 13 days of night
differential. The Office also found there were 23 days where appellant had worked prior to his
11:00 p.m. shift and was paid overtime for these hours. Appellant was found not to be entitled to
compensation on those days he worked eight or more hours.
Appellant requested a review of the written record by an Office hearing representative.
In a decision dated March 7, 2008, the hearing representative modified the prior decision. The
hearing representative found appellant was entitled to an additional 66.70 hours for the period
May 31 to July 11, 2003, .07 hours on August 24, 2003, 22.5 hours from November 13 to 25,
2004, 65.81 hours from November 26, 2004 to January 26, 2005 and 15.26 hours from March 14
to 31, 2005. The hearing representative affirmed the finding that appellant would not be entitled
to compensation for those days he worked eight or more hours.
2

Docket No. 05-278 (issued January 6, 2006).

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that a claimant is entitled to
compensation for disability resulting from a personal injury sustained while in the performance
of duty.3 The term “disability” as used under the Act means the incapacity, because of injury in
employment, to earn the wages which the employee was receiving at the time of injury.4
ANALYSIS
The March 7, 2008 Office decision made detailed findings with respect to appellant’s
entitlement to compensation. The Office found that appellant was entitled to compensation for
the periods claimed. On appeal, appellant’s primary argument is that he should be entitled to the
claimed hours of compensation on those dates in which he worked less than eight hours in his
regular shift, but worked additional hours at another location. The employing establishment
indicated that for approximately 23 days during the claimed period appellant had worked
additional hours and was paid as “overtime.” On those days in which appellant’s combined work
hours totaled eight or more hours, the Office found he was not entitled to compensation.
Appellant argues that, since overtime pay is not included in determining pay rate,5 the
Office should not include his overtime hours as time “worked” in determining entitlement to
wage-loss compensation. But the issue here is not a pay rate issue. Compensation for wage loss
is paid for disability, which is defined as the inability to earn the wages earned at the time of
injury. The actual earnings, whether classified as overtime or other type of pay, are relevant
factors in determining the amount of compensation owed. The Office offsets compensation
based on the actual earnings in accord with its implementing regulations and Board precedent.6
If appellant had earnings equal to or greater than his current pay for the date-of-injury position,
he is not entitled to wage-loss compensation for that period. The Board finds that appellant is
not entitled to compensation on those dates he worked eight or more hours.
Appellant also briefly argued that his night differential and Sunday pay were incorrect,
without providing additional detail. To the extent he is referring to the period December 30,
2001 to February 6, 2002, the Sunday premium pay and night differential pay were based on the
CA-7a that appellant signed on February 21, 2002. Appellant did not offer any probative
evidence of error by the Office on this issue.

3

5 U.S.C. § 8102(a).

4

Donald Johnson, 44 ECAB 540, 548 (1993); 20 C.F.R. § 10.5(17).

5

5 U.S.C. § 8114(e) provides that overtime pay is not included in determining monthly pay.

6

See Donna M. Rowan, 54 ECAB 698 (2003); Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403;
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).

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CONCLUSION
The Board finds that, based on the evidence, the Office properly paid appellant
compensation for the period February 25, 2001 to January 16, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 7, 2008 is affirmed.
Issued: July 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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