United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mountain View, HI, Employer
__________________________________________

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Appearances:
D. Clay Sloan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0372
Issued: November 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 6, 2019 appellant, through counsel, filed a timely appeal from a June 14,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

The Board notes that following the June 14, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $67,875.37 for the period January 1, 2007 through March 30, 2019, for which he was
without fault, because he concurrently received FECA wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits without an appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $550.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On June 1, 1989 appellant, then a 50-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he sustained a stress-related condition after being interrogated by postal
inspectors. On the reverse side of the claim form, the employing establishment noted that appellant
stopped work April 11, 1989. OWCP accepted the claim for adjustment reaction. It paid appellant
wage-loss compensation on the periodic rolls as of February 11, 1990.
In response to a March 20, 2019 inquiry, on March 27, 2019, SSA provided OWCP with a
FERS/SSA dual benefit calculation worksheet setting forth appellant’s SSA benefit rates with
FERS and without FERS from January 2007 through December 2018; effective January 2007, his
rate with FERS was $1,345.70 and without FERS was $935.60; effective December 2007, his rate
with FERS was $1,376.60 and without FERS was $957.10; effective December 2008,
December 2009, and December 2010, his rate with FERS was $1,456.40 and without FERS was
$1,012.60; effective December 2011, his rate with FERS was $1,508.80 and without FERS was
$1,049.00; effective December 2012, his rate with FERS was $1,534.30 and without FERS was
$1,066.80; effective December 2013, his rate with FERS was $1,557.30 and without FERS
was$1,082.80; effective December 2014 and December 2015, his rate with FERS was $1,583.70
and without FERS was $1,101.20; effective December 2016, his rate with FERS was $1,588.30
and without FERS was $1,104.50; effective December 2017, his rate with FERS was $1,620.00
and without FERS was $1,126.50; effective December 2018, his rate with FERS was $1,665.30
and without FERS was $1,158.00.
OWCP completed a FERS offset calculation form on April 18, 2019. It calculated the
amounts that it should have offset from appellant’s wage-loss compensation from January 1, 2007
through March 30, 2019: effective January 1, 2007, the monthly offset was $410.10 ($1,345.70 $935.600), or $378.55 every 28 days; effective December 1, 2007, the monthly offset was $419.50
($1,376.60 - $957.10), or $387.23 every 28 days; effective December 1, 2008, December 1, 2009,
and December 1, 2010, the monthly offset was $443.80 ($1,456.40 - $1,012.60), or $409.66 every
28 days; effective December 1, 2011, the monthly offset was $459.80 ($1,508.80 - $1,049.00), or
$424.43 every 28 days; effective December 1, 2012, the monthly offset was $467.50 ($1,534.30 $1,066.80), or $431.54 every 28 days; effective December 1, 2013, the monthly offset was $474.50
($1,557.30 - $1,082.80), or $438.00 every 28 days; effective December 1, 2014 and December 1,
2015, the monthly offset was $482.50 ($1,583.70 - $1,101.20), or $445.38 every 28 days; effective
December 1, 2016, the monthly offset was $483.80 ($1,588.30 - $1,104.50), or $446.58 every 28
days; effective December 1, 2017, the monthly offset was $493.50 ($1,620.00 - $1,126.50), or
$455.54 every 28 days; and effective December 1, 2018 through March 30, 2019, the monthly

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offset was $507.30 ($1,665.30 - $1,158.00), or $468.28 every 28 days.4 It divided the 28-day
offset amount to find the daily amount, which it multiplied by the number of days in each period
January 1, 2007 through March 30, 2019, to find the amount that it overpaid appellant for each
period. OWCP added the amounts for each period and determined that it should have offset
$67,875.37 from his wage-loss compensation.
In a preliminary overpayment determination dated May 3, 2019, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $67,875.37 because it had
failed to reduce his wage-loss compensation benefits for the period January 1, 2007 through
March 30, 2019 by the FERS portion of his SSA age-based retirement benefits without an
appropriate offset. It further advised him of its preliminary determination that he was without fault
in the creation of the overpayment. OWCP provided appellant with an overpayment action request
form and an overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified him
that, within 30 days of the date of the letter, he could request a telephonic conference, a final
decision based on the written evidence, or a prerecoupment hearing.
On June 4, 2019 OWCP received an undated letter from appellant which requested an
extension of time to find counsel to help him complete the Form OWCP-20.5 The reasons
appellant provided for not completing the Form OWCP-20 were his age, loss of memory,
medications, and his May 29, 2019 release from the Veteran’s Administration home following an
April 16, 2019 operation. Appellant also noted that he was moving to Arkansas the next day. On
the enclosed copy of the preliminary determination, he noted “need help. Also need attorney!”
Appellant requested that OWCP waive recovery of the overpayment. The enclosed Form OWCP20 was largely incomplete, noting only a checked box marked “No” indicating that appellant did
not have any of the incorrectly paid checks or payments in his possession.
In a June 11, 2019 notice of telephone call (Form CA-110), OWCP reported that counsel
called and related that appellant had brought paperwork to him regarding the overpayment.
Appellant had indicated that OWCP was willing to waive the overpayment if he completed the
forms and mailed them in. Counsel further noted that appellant was 80 years old, and suffered
from PTSD. He related that he would submit the form with a cover letter that day.6 No additional
information was received.
By decision dated June 14, 2019, OWCP finalized the overpayment determination, finding
that appellant received an overpayment of wage-loss compensation in the amount of $67,875.37,
for which he was without fault, because he concurrently received SSA age-related retirement
benefits and wage-loss compensation for the period January 1, 2007 through March 30, 2019
without appropriate offset. It denied waiver of recovery of the overpayment and required recovery
by deducting $550.00 from appellant’s continuing compensation payments.

4

The 28-day offset amount is calculated by multiplying the monthly FERS offset amount by 12 and then dividing
this amount by 13.
5

The Board notes that OWCP failed to retain a photocopy of the envelope in which the letter and appeal form were
sent, which would bear the postmark.
6

The Board notes that OWCP, at that time, had not yet received authorization for counsel to represent appellant.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.7 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.8
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.9 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received a $67,875.37
overpayment of compensation for the period January 1, 2007 through March 30, 2019 because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without appropriate offset.
In its June 14, 2019 decision, OWCP found that an overpayment of compensation was
created for the period January 1, 2007 through March 30, 2019. The overpayment was based on
the evidence received from SSA with respect to age-related retirement benefits paid to appellant
without an appropriate offset. A claimant cannot receive wage-loss compensation and SSA agerelated retirement benefits attributable to federal service for the same period.11 The information
provided by SSA indicated that appellant received age-related SSA retirement benefits that were
attributable to his federal service during the period January 1, 2007 through March 30, 2019. The
Board therefore finds that an overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. The SSA provided the SSA rates with FERS, and
without FERS for specific periods commencing January 1, 2007 through March 30, 2019. OWCP

7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
10

FECA Bulletin No. 97-09 (February 3, 1997); see also L.M., Docket No. 19-1197 (issued January 8, 2020); M.D.,
Docket No. 19-1500 (issued February 24, 2020); N.B., Docket No. 18-0795 (issued January 4, 2019).
11

Id.

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provided its calculations for each relevant period based on an SSA worksheet and in its May 3,
2019 preliminary overpayment determination. No contrary evidence was received.
The Board has reviewed OWCP’s calculation of benefits appellant received for the period
January 1, 2007 through March 30, 2019 and finds that an overpayment of compensation in the
amount of $67,875.37 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.13
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.14
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.15 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.16
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.17 Failure to submit the requested information
within 30 days of the request will result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.18

12

M.D., supra note 10; A.S., Docket No. 19-0171 (issued June 12, 2019).

13

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
14

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

15
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
16

Id. at § 10.437(a)(b).

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

Id. at § 10.438(b).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
OWCP found that appellant was without fault in the creation of the overpayment of
compensation. The fact that a claimant is without fault in the creation of an overpayment does not
preclude OWCP from recovering the overpayment.19 Waiver is only possible if recovery would
defeat the purpose of FECA or be against equity and good conscience.20 Appellant, however, did
not provide the requisite financial documentation to OWCP.21
In its preliminary determination dated May 3, 2019, OWCP explained the importance of
providing the completed Form OWCP-20 overpayment recovery questionnaire and supporting
financial documentation. It advised appellant that it would deny waiver of recovery if he failed to
furnish the requested financial information within 30 days. On June 4, 2019 OWCP received a
Form OWCP-20 that was largely incomplete, noting only a checked box marked “No” indicating
that appellant did not have any of the incorrectly paid checks or payments in his possession. No
additional evidence was received prior to OWCP’s June 14, 2019 final overpayment
determination. OWCP therefore did not have the necessary financial information to determine
whether waiver of recovery of the overpayment would defeat the purpose of FECA or would be
against equity and good conscience within 30 days of the preliminary decision.22 It was, therefore,
required to deny waiver of recovery of the overpayment.23
On appeal counsel asserts that on June 11, 2019 he helped appellant with OWCP’s
paperwork, specifically Form OWCP-20, and sent in the same that day. As explained above,
however, neither a completed Form OWCP-20 nor supporting financial documentation was
received as of the issuance of OWCP’s June 14, 2019 final overpayment determination. Counsel
further argues that appellant is entitled to waiver of recovery as he was without fault in the creation
of the overpayment, as acknowledged in OWCP’s May 3, 2019 correspondence, and appellant had
acted accordingly. However, as explained above, the fact that he was not at fault does not relieve
him from liability for repayment of the overpayment of compensation and the Board finds that
OWCP properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.411 of OWCP’s regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
19

See M.D., supra note 10; L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808
(issued October 26, 2015).
20

20 C.F.R. § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

21

Id. at § 10.438(b); T.J., Docket No. 19-1242 (issued January 13, 2020).

22

See E.M., Docket No. 19-0857 (issued December 31, 2019).

23

Supra note 18.

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is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$550.00 from appellant’s continuing compensation payments every 28 days.
As discussed, OWCP did not receive a completed overpayment recovery questionnaire or
any of the necessary financial information to support his income and expenses prior to the final
June 14, 2019 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.25 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
designed to collect the debt promptly and in full.26 As appellant did not submit the financial
documentation to OWCP as requested, the Board finds that there is no evidence of record to
establish that OWCP erred in directing recovery of the $67,875.37 overpayment at the rate of
$550.00 every 28 days from his continuing compensation payments.27
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$67,875.37 for the period January 1, 2007 through March 30, 2019 because he concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits without an
appropriate offset, for which he was without fault. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and properly required recovery of the overpayment
by deducting $550.00 from his continuing compensation payments every 28 days.

24

20 C.F.R. § 10.441(a); see G.G., Docket No. 19-0684 (issued December 23, 2019).

25

Id. at § 10.438.

26

E.M., supra note 22; Federal (FECA) Procedure Manual, supra note 15 at Chapter 6.500.2 (September 2018).

27

See E.K., Docket No. 18-0587 (issued October 1, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the June 14, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 19, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Laredo, TX,
Employer
__________________________________________

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

Docket No. 18-0566
Issued: October 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 23, 2018 appellant filed a timely appeal from a December 20, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established ratable hearing loss warranting a schedule
award.
FACTUAL HISTORY
On September 13, 2017 appellant, then a 58-year-old canine enforcement agent, filed an
occupational disease claim (Form CA-2) attributing his hearing loss to his employment duties. He
1

5 U.S.C. § 8101 et seq.

noted that he first became aware of his claimed hearing loss on January 1, 1995, but did not realize
its connection to his federal employment until January 1, 2000. Appellant explained that he did
not file a claim earlier as he was not aware of the procedures for filing a claim. He did not stop
work.
By development letter dated September 18, 2017, OWCP requested that appellant submit
additional factual and medical information in support of his claim. It afforded appellant 30 days
to submit the necessary evidence.
Appellant submitted the results of a July 11, 2017 audiogram and July 16, 2017
audiometric summary report. The audiometric summary report noted testing at frequency levels
of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed decibel (dB) losses in the right ear of 15, 15,
15, and 25. On the left test results at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz
revealed dB losses of 20, 20, 20, and 20. The July 11, 2017 audiogram was reviewed Dr. Erik
Sloman-Moll, an examining Board-certified anatomic and clinical pathologist, and Dr. Jaziel
Silva-Gonzalez, an audiologist. They found slight binaural hearing loss, especially at high
frequencies.
OWCP, on October 19, 2017, referred appellant to Dr. William Carl Smith, a Boardcertified otolaryngologist, for a second opinion examination. In a report dated November 6, 2017,
Dr. Smith diagnosed bilateral high frequency sensorineural hearing loss. He attributed the hearing
loss to exposure to noise in his federal employment and provided the results of an audiogram. An
audiogram was performed at Dr. Smith’s office on November 6, 2017. Testing at frequency levels
of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses in the right ear of 15, 15, 15, and 25. On
the left test results at the frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses of 15,
10, 15, and 25. Dr. Smith found zero percent binaural hearing impairment and two percent
permanent impairment due to mild tinnitus.
By decision dated November 14, 2017, OWCP accepted appellant’s claim for binaural
hearing loss.
An OWCP district medical adviser (DMA) reviewed the medical evidence on
November 18, 2017 and applied OWCP’s standards for evaluating hearing loss to the November 6,
2017 audiogram. He found that appellant had reached maximum medical improvement (MMI) as
of the date of the examination, November 6, 2017.
The DMA noted that appellant had zero percent binaural hearing loss. He concluded that
appellant did not have a ratable permanent impairment due to hearing loss under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)2 and,
thus, was not entitled to a schedule award for tinnitus. The DMA recommended that appellant
undergo yearly audiograms, noise protection, and authorization for hearing aids.
On December 6, 2017 appellant filed a claim for compensation (Form CA-7) requesting a
schedule award.

2

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

2

By decision dated December 20, 2017, OWCP denied appellant’s schedule award claim.
It found that the medical evidence of record was insufficient to establish that he had ratable hearing
loss warranting a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA,3 and its implementing federal regulations,4 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.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of binaural
hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.9 The A.M.A., Guides provide that, if tinnitus
interferes with activities of daily living (ADLs), including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may be
added to a measurable binaural hearing impairment.10 A schedule award for tinnitus is not payable

3

Id. at § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

A.M.A., Guides 250 (6th ed. 2009).

8

See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

9

A.M.A., Guides, supra note 6 at 249.

10

Id.; see also Robert E. Cullison, 55 ECAB 570 (2004).

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unless the medical evidence establishes that the condition caused or contributed to a ratable hearing
loss.11
ANALYSIS
The Board finds that appellant has not established ratable hearing loss warranting a
schedule award.
OWCP referred appellant to Dr. Smith for evaluation of his hearing loss. Dr. Smith’s
November 6, 2017 examination found that appellant had binaural sensorineural hearing loss due
to workplace exposure. FECA procedures relating to the evaluation of schedule awards provide
that the file should then be routed to OWCP’s DMA for an opinion concerning the nature and
percent of impairment.12
On November 18, 2016 a DMA reviewed the medical evidence of record, including
Dr. Smith’s report, and found that the hearing loss was not ratable for schedule award purposes.
He explained that the November 6, 2017 audiogram obtained for Dr. Smith’s evaluation was the
most current audiogram. The DMA thereafter applied the standardized procedures to the
November 6, 2017 audiogram performed for Dr. Smith to determine whether appellant’s hearing
loss was ratable for schedule award purposes.
The DMA noted that the November 6, 2017 audiogram recorded frequency levels at the
500, 1,000, 2,000, and 3,000 Hz and revealed dB losses of 15, 15, 15, and 25, respectively in the
right ear for a total dB loss of 70. He then followed established procedures and divided this total
by four which resulted in an average loss of 17.5 dBs and subtracted the fence of 25 dBs to equal
zero. The DMA then multiplied this by the established factor of 1.5 to result in zero percent
monaural hearing loss for the right ear.
The DMA then properly followed the same procedure on the left, noting that the test results
at the frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses of 15, 10, 15, and 25,
respectively, for a total of 65 dBs. He divided this by four, for an average hearing loss of 16.25
dBs, subtracted the fence of 25 dBs to equal zero dBs, and multiplied this by the established factor
of 1.5, for zero percent monaural hearing loss for the left ear. The DMA found that appellant had
no ratable hearing loss, and noted correctly that appellant was not entitled to a schedule award for
tinnitus as he had no ratable hearing loss.13 Thus, the Board finds that the DMA applied the proper
standards to the November 6, 2017 audiogram, finding zero percent binaural hearing loss.

11

See Charles H. Potter, 39 ECAB 645 (1988).

12

Supra note 5 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(e)
(February 2013).
13

A.M.A., Guides, supra note 6 at 249.

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Although appellant has an employment-related hearing loss, it is not significant enough to be
ratable for schedule award purposes.14
The Board has also reviewed the July 11, 2017 audiogram performed by Dr. SilvaGonzalez. This audiogram also documents zero percent binaural hearing loss. Appellant has not
submitted medical evidence sufficient to establish ratable hearing loss. He has, therefore, failed
to meet his burden of proof.
The Board notes that Dr. Smith diagnosed tinnitus. Dr. Smith, using the A.M.A., Guides,
found that appellant had two percent permanent impairment due to tinnitus. As noted above, the
DMA noted that, as appellant’s hearing loss was not ratable, he was not entitled to a schedule
award for tinnitus. The Board has held that, in the absence of ratable hearing loss, a schedule
award for tinnitus is not appropriate.15 Accordingly, the Board finds that appellant is not entitled
to a schedule award for tinnitus.16
Appellant may request a schedule award or increased schedule award at any time 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 not established ratable hearing loss warranting a
schedule award.

14

See T.C., Docket No. 17-0576 (issued May 22, 2018); D.G., Docket No. 16-1486 (issued December 16, 2016);
A.W., Docket No. 16-0795 (issued August 29, 2016).
15

L.S., 57 ECAB 725 (2006).

16

See D.G., and A.W., supra note 14.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 20, 2017 is affirmed.
Issued: October 2, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
MATERIEL COMMAND, ROBINS AIR FORCE )
BASE, GA, Employer
)
__________________________________________ )
T.M., claiming as widow of R.M., Appellant

Appearances:
Robert S. Poydasheff, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1221
Issued: September 3, 2019

Case Submitted on the Record

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

JURISDICTION
On May 30, 2018 appellant, through counsel, filed a timely appeal from an April 6, 2018
nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated March 3, 2016, to the filing of this

1

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

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On October 27, 2015 the employee, then a 46-year-old paint supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained an emotional condition,
including severe depression, due to working in a hangar and becoming overwhelmed at work. He
claimed that he started having “some issues at work” in 2014 and was becoming stressed and
letting things get to him. The employee noted that he tried to commit suicide on July 9, 2014 and
asserted that he first became aware of his claimed condition and its relationship to his federal
employment on the same date.4
The employee submitted administrative documents, including a notification of personnel
action (Standard Form 50) dated July 8, 2013 and standard core personnel documents from
October 2000 describing the painter supervisor position. In October 5 and 12, 2015 notes,
Dr. Dwight L. Bearden, an attending Board-certified psychiatrist, advised that the employee
needed reasonable accommodation in a nonsupervisory position in order to return to work.
In a November 12, 2015 development letter, OWCP requested that the employee submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation regarding the cause of his claimed emotional condition. It requested that the employee
complete and return an attached questionnaire which posed various questions regarding the
employment-related factors and conditions which he believed caused or aggravated his claimed
condition. OWCP afforded the employee 30 days to respond.5

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
4

The employee asserted that he was hospitalized for 30 days commencing July 9, 2014 and for 21 days commencing
August 22, 2015 due to the stress that he began to experience in 2014. He indicated that he went back to supervisory
work in the hangar for several months between these two hospitalizations. On the reverse side of the Form CA-2, the
employee’s immediate supervisor indicated that the employee last stopped work on September 22, 2015 and he
asserted that the claim needed to be challenged “on causal relationship and fact of injury.”
5
On November 12, 2015 OWCP requested additional information from the employing establishment and afforded
it 30 days to respond.

2

The employee submitted an e-mail exchange dated August 12 and 13, 2013 in which he
discussed his work duties and workload with a supervisor, an October 12, 2015 plan for care after
being discharged from the hospital, and an undated Occupational Safety and Health Administration
incident report in which he related a July 9, 2014 work incident to “work stress.”
In a December 17, 2015 report, Dr. Bearden indicated that the employee experienced
significant stress related to his management of personnel in multiple shops and he opined that this
stress led to anxiety, depression, and suicidal ideation. He requested that the employing
establishment provide the employee with reasonable accommodation by relieving him of duties
requiring supervision of personnel in multiple shops.
In a February 5, 2016 letter, an employing establishment official challenged the
employee’s claim by asserting that he failed to identify specific events at work which adversely
affected him and that he failed to submit sufficient medical documentation.
By decision dated March 3, 2016, OWCP denied the employee’s claim for an employmentrelated emotional condition because he failed to establish fact of injury. It found that he failed to
establish a compensable employment factor because he did not provide specific details describing
the time, date, place, and nature of the implicated work events or conditions. OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
On December 21, 2016 OWCP received a number of documents from the employee, but
he did not request reconsideration of the March 3, 2016 decision at that time. An unsigned and
undated document entitled, “Chemicals I have used for the last 17 years,” lists 18 chemicals,
including methylene chloride and hydrogen peroxide, and contains the statement, “All chemicals
on this list are known to cause [central nervous system] depression and [neurological] damage to
the brain, and birth defects.” Copies of photographs and floorplans of an unidentified worksite
contain handwritten notations regarding perceived deficiencies in the ventilation system. The
floorplans identified the worksite as a “controlled area” for methylene chloride and hexavalent
chromium.
In an undated memorandum, the chief of the program and construction management section
for the employing establishment indicated that Building 54 had to cease being used as a paint
hangaer if it did not come into compliance by September 2008. The chief asserted that the
electrical and ventilation systems of Building 54 were not designed to meet the fire, safety, and
bio-environmental requirements of a paint hanger. He noted that worker exposures for chromium
in Building 54 had consistently ranged from 300 to 500 times over the Occupational Safety and
Health Administration (OSHA) exposure limit. An unidentified person added the following
handwritten comment to the document: “I worked in Bldg. 54 from 1997 till [December 2009].”6
An unsigned and undated document lists reports, dated between September 16, 2014 and August 1,
2016, pertaining to medical examinations and diagnostic.7

6

In a June 26, 2007 e-mail, an employing establishment official advised a coworker that a 2006 study revealed that
Building 54 had numerous deficiencies as a paint hanger.
7

The document also lists the above-described factual materials received by OWCP on December 21, 2016.

3

The employee submitted a number of medical documents which also were received by
OWCP on December 21, 2016. In a July 18, 2014 hospital discharge summary report, Dr. Asad
Naqvi, a Board-certified psychiatrist, indicated that the employee was admitted on July 10, 2014
at which time he reported that he had tried to commit suicide on two separate occasions
approximately a week prior. He diagnosed major depressive disorder and alcohol abuse and
indicated that the employee would pursue follow-up care with a therapist and another Boardcertified psychiatrist, Dr. Babatunde Fagbamiye. In periodic progress reports dated between
September 16, 2014 and August 6, 2015, Dr. Fagbamiye noted that the employee primarily
reported stress due to financial difficulties and problems in his relationship with his wife. He noted
that the employee denied suicidal thoughts (apart from one instance) and diagnosed bipolar 1
disorder (most recent episode depressive, mild).
In a March 16, 2016 report, Dr. Prem S. Parihar, a Board-certified neurologist, indicated
that the employee presented complaining of a history of depression for 13 years. The employee
reported that he had been exposed to chemicals at work (including phenol sodium chromate,
chloride, chromium, ketones, and acetones) and he referenced medical literature which indicated
that some of these chemicals negatively affected cognitive function. Dr. Parihar diagnosed right
carpal tunnel syndrome, depression, mild cognitive impairment, and amnesia, and noted that
exposure to phenol sodium chromate and chromium can cause peripheral neuropathy. He
indicated that the employee had been exposed to various aromatic compounds and had developed
suicidal thoughts.
The findings of a March 21, 2016 magnetic resonance imaging (MRI) scan of the
employee’s head contained an impression of mild changes of chronic microvascular ischemia with
no acute infarct, hemorrhage, or mass effect.
In April 4 and May 24, 2016 reports, Dr. Parihar expressed his concern that the employee’s
exposure to toxins could have contributed to his neuropsychological dysfunction. He noted that
this matter required detailed evaluation because the employee exhibited white matter changes on
an April 25, 2016 single-photon emission computerized tomography (SPECT) scan which could
either be nonspecific or related to toxins.8
In a June 15, 2016 report, Dr. Adam Pomerleau, an attending Board-certified emergency
medicine physician, advised that the employee presented complaining of anxiety, suicidal
thoughts, depression, emotional lability, talkativeness, and memory/concentration problems. The
employee reported that he was exposed to numerous chemicals while working as a
painter/depainter and supervisor of painting/depainting for 17 years, but especially the paintremoving agents methylene chloride and hydrogen peroxide.9 Dr. Pomerleau reported the findings
of his physical examination, noting essentially normal results in the pulmonary, neurological, and
psychiatric portions of the examination. He diagnosed history of exposure to methylene chloride
8
The employee submitted a copy of the April 25, 2016 SPECT scan which noted that the findings were consistent
with a traumatic brain injury and toxic/hypoxic encephalopathic process.
9

The employee reported to Dr. Pomerleau that he wore a particulate mask and gloves most of the time he worked.
Dr. Pomerleau advised that he had reviewed reports which identified higher than allowed levels of methylene chloride
and hexavalent chromium in the employee’s worksite from 2014 and 2015, but he noted that the reports did not include
quantitative data. The case does not contain the reports referenced by Dr. Pomerleau.

4

and other solvents, suspected chronic toxic encephalopathy, and unilateral peripheral neuropathy
(unlikely related to occupational exposure).
Dr. Pomerleau indicated that the employee had a “compelling case for the possibility of
chronic toxic encephalopathy related to heavy solvent exposure over many years.” He maintained
that the employee fit the World Health Organization type II and the Raleigh type 2a profiles for
chronic toxic encephalopathy, but noted that it was necessary to carry out objective memory and
attention testing in the form of neuropsychiatric battery testing to consider whether he fit the
Raleigh type 2b profile. Dr. Pomerleau advised that the employee had no other compelling causes
for his symptoms, such as a traumatic injury or family history, and noted that an organic etiology
was not required to diagnose the mental illnesses that had previously been diagnosed by other
physicians. He indicated that, although the April 25, 2016 SPECT scan showed areas of
hypoperfusion (particularly in the basal ganglia/thalamus) as would be expected after exposure to
methylene chloride, this type of test was still mainly an experimental diagnostic tool and could not
be used definitively for the diagnosis of brain injury from a toxic etiology such as solvent
exposure.10
In a July 26, 2018 report, Dr. Parihar advised that the employee reported that in 2014 and
2015 the employing establishment allowed him to be exposed to higher than allowed levels of
various chemicals, including chloride and chromium. He diagnosed toxic encephalopathy and
depression, and noted, “This is due to heavy solvent exposure over many years manifesting in the
form of neurobehavioral deficits or chronic toxic encephalopathy. The exact mechanism is not
known.” In an August 1, 2016 report, Dr. Parihar indicated, that after reviewing the medical
records, he believed that the employee’s chronic toxic encephalopathy was related to his 17-year
exposure to low doses of solvents, paint, and paint removers. He maintained that the employee fit
the World Health Organization type II and the Raleigh type 2a profiles for chronic toxic
encephalopathy.
The employee also submitted medical reports pertaining to his back and lower extremity
symptoms in 2011 and 2012, including back pain and bilateral foot numbness, and his bronchitis
and hyperlipidemia in 2015 and 2016.
In August 2017 appellant submitted documents showing that the employee died on
May 5, 2017. She submitted a marriage license memorializing her marriage to the employee and
a death certificate filed on May 9, 2017 which listed the immediate cause of death as “gunshot

10

In his June 15, 2016 report, Dr. Pomerleau also generally discussed medical literature regarding methylene
chloride toxicity and chronic toxic encephalopathy. He further opined that the employee’s right peripheral neuropathy,
mainly affecting his right hand, was unlikely related to his exposure to solvents because peripheral neuropathy from
solvent exposure tended to occur bilaterally in a stocking-glove distribution.

5

wound of the head.” The death certificate indicated that appellant was married to the employee at
the time of his death.11
Appellant requested reconsideration of OWCP’s March 3, 2016 decision on behalf of the
employee by submitting a copy of a November 21, 2016 document which was received by OWCP
on March 20, 2018. The document, containing unsigned signature blocks for counsel and the
employee, indicated that the employee was requesting reconsideration of OWCP’s March 3, 2016
decision.12 It contained the argument that the employee sustained environmental and emotional
medical conditions related to his exposure to chemicals when he worked in Building 54 from 1999
to 2009 and in Building 180 from 2009 to 2016. It was alleged that the ventilation system for
Building 54 was not in compliance with the relevant standards for a paint hanger and that
chromium levels consistently ranged from 300 to over 500 times the OSHA exposure limit while
appellant worked there. Moreover, the ventilation system for Building 180 was not in compliance
and the workplace exceeded the OSHA exposure limits for lead, chromium, cadmium, and
methylene chloride.
In support of the reconsideration request, appellant submitted an undated and unsigned
memorandum concerning the use of Building 54 as a paint hanger. The document indicated that a
2006 study showed that the ventilation system of Building 54 failed to reduce actual exposures to
levels below permissible exposure level limits. In a May 23, 2012 report, two chemists for the
employing establishment reported that a dust sample obtained from the roof of Building 180 on
May 12, 2012 revealed the presence of silicates, paint pigments, and a wide assortment of metals,
including chromium and strontium chromate. In an undated form document, entitled “work
exposure hearing,” the employee identified chemicals to which he was exposed while working in
unspecified workspaces since 1998. The chemicals included methylene chloride, lead, chromates,
toluene, and ketones.
Appellant also submitted documents which had previously been submitted by the employee
in December 2016, including the undated memorandum of the chief of the program and
construction management section, Dr. Naqvi’s July 18, 2014 report, Dr. Fagbamiye’s progress
notes produced between September 16, 2014 and August 6, 2015, the April 25, 2016 SPECT scan,
Dr. Parihar’s reports produced between March 16 and August 1, 2016, and Dr. Pomerleau’s
June 15, 2016 report.
By decision dated April 6, 2018, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error in its March 3, 2016
decision. It noted that she submitted documentation in support of her untimely reconsideration
11

An August 27, 2017 report of the employing establishment’s Office of Special Investigations indicated that the
employee died on the work premises on May 17, 2017 of an apparent self-inflicted gunshot to the head. The report
includes an attached unsigned May 9, 2016 journal-type document in which the author generally discussed having too
many responsibilities at work. The case record contains a claim for survivor’s benefits (Form CA-5) that appellant
filed on March 20, 2018. However, the case record does not contain a final decision regarding appellant’s claim for
survivor’s benefits and the matter is not currently before the Board. See 20 C.F.R. § 501.2(c).
12

The second page of this four-page document, listing various factual and medical documents in the case record,
had previously been submitted to OWCP in December 2016. This page does not contain any language referring to a
reconsideration request.

6

request, but found that this evidence failed to demonstrate clear evidence of error in the prior
decision.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.13 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.14 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).15 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.16
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.17 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.18
To demonstrate 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 demonstrate clear
evidence of error. It is not enough to merely demonstrate 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 demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.19

13

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
14

20 C.F.R. § 10.607(a).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

16

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
17

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
18

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 15 at Chapter 2.1602.5 (February 2016).
19

S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

7

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 demonstrate 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.20 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP.21
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.22 As appellant’s request for
reconsideration was not received by OWCP until March 20, 2018, more than one year after
issuance of its March 3, 2016 merit decision, it was untimely filed.23 Consequently, she must
demonstrate clear evidence of error by OWCP in its March 3, 2016 decision.
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in issuing its March 3, 2016 decision.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its March 3, 2016 decision.24 The evidence
and argument she submitted did not raise a substantial question concerning the correctness of
OWCP’s prior decision.25
OWCP denied the employee’s claim on a factual basis, i.e., the failure to establish a
compensable employment factor. Upon reconsideration, appellant presented the argument that the
employee sustained environmental and emotional medical conditions related to his exposure to
chemicals while working in Building 54 and Building 180 between 1999 and 2016. The Board
notes, however, that appellant did not explain how this argument raised a substantial question as
to the correctness of OWCP’s March 3, 2016 decision. Appellant submitted a number of factual
20

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 15 at Chapter 2.1602.5(a) (February 2016).

21

D.S., Docket No. 17-0407 (issued May 24, 2017).

22

See supra note 14.

23

On appeal counsel argues that a timely request for reconsideration of OWCP’s March 3, 2016 decision was filed
in November 2016. However, as noted, the case record shows that a request for reconsideration of the March 3, 2016
decision was not filed until March 30, 2018, i.e., the date that appellant filed a request for reconsideration on behalf
of the deceased employee.
24

See supra note 19.

25

Id.

8

documents in support of this argument, but these documents do not, on their face, demonstrate
clear evidence of error in the March 3, 2016 decision. For example, in an undated memorandum,
the chief of the program and construction management section for the employing establishment
indicated that Building 54 had to cease being used as a paint hangar if it did not come into
compliance with relevant standards by September 2008. The chief noted that worker exposures
for chromium in Building 54 had consistently ranged from 300 to 500 times over the OSHA
exposure limit. In a May 23, 2012 report, two chemists for the employing establishment reported
that a dust sample obtained from the roof of Building 180 on May 12, 2012 revealed the presence
of silicates, paint pigments, and an assortment of metals, including chromium and strontium
chromate.
The Board, however, has reviewed these factual documents and finds that collectively they
do not, on their face, establish an employment factor or otherwise demonstrate clear evidence of
error in OWCP’s March 3, 2016 decision. The documents are vague in nature with respect to their
discussion of chemicals in the workplace and it remains unclear from the record whether or to
what extent the employee was exposed to various chemicals in the workplace. For example,
appellant did not submit evidence detailing the specific nature and extent of the employee’s work
in Building 54, nor does the case record contain an environmental study describing sample data
showing the precise levels of chromium and other substances in the specific workspaces where the
employee worked in Building 54. Although the May 23, 2012 report submitted by appellant
revealed the presence of silicates, paint pigments, and metals such as chromium and strontium
chromate in Building 180, the case record lacks evidence showing the specific nature and extent
of the employee’s work history and chemical exposure in Building 180.
After OWCP’s March 3, 2016 decision, various medical reports were added to the medical
record. The Board finds, however, that the submission of these reports do not demonstrate clear
evidence of error in OWCP’s March 3, 2016 decision. In March 16, April 4, and May 24, 2016
reports, Dr. Parihar expressed his concern that the employee’s exposure to toxins could have
contributed to his neuropsychological dysfunction. On July 26 and August 1, 2016 he opined,
without elaboration, that the employee sustained chronic toxic encephalopathy due to exposure to
chemicals in the workplace. In addition, Dr. Pomerleau noted in a June 15, 2016 report that the
employee had a “compelling case for the possibility of chronic toxic encephalopathy related to
heavy solvent exposure over many years.”26
The Board notes that even if employment factors were established and an evaluation of the
medical evidence was undertaken, these medical reports do not demonstrate clear evidence of error
in the March 3, 2016 decision because they contain opinions on causal relationship which are

26

Dr. Pomerleau indicated that, although an April 25, 2016 SPECT scan showed areas of hypoperfusion as would
be expected after exposure to methylene chloride, this type of test was still mainly an experimental diagnostic tool
and could not be used definitively for the diagnosis of brain injury from a toxic etiology such as solvent exposure.

9

speculative in nature27 or lack adequate supporting medical rationale.28 As noted, clear evidence
of error is intended to represent a difficult standard.29 Even a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical
evidence requiring further development is insufficient to demonstrate clear evidence of error. It is
not enough to show that evidence could be construed so as to produce a contrary conclusion.
Instead, the evidence must shift the weight in appellant’s favor.30
The Board finds that appellant’s request for reconsideration does not show on its face that
OWCP committed error when it found in its March 3, 2016 decision that the employee had not
sustained an employment-related medical condition.31 Therefore, OWCP properly determined that
appellant did not demonstrate clear evidence of error in its March 3, 2016 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

27

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (finding
that an opinion which is speculative in nature is of limited probative value regarding the issue of causal relationship).
28
See D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining the relationship between a given
employment condition/activity and a diagnosed medical condition).
29

See supra note 20.

30

M.E., Docket No. 18-1442 (issued April 22, 2019).

31

See S.F., Docket No. 09-0270 (issued August 26, 2009).

10

ORDER
IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sag Harbor, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 19-0676
Issued: March 26, 2020

Case Submitted on the Record

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

On February 5, 2019 appellant, through counsel, filed an appeal from a November 19, 2018
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 19-0676.
On March 7, 2017 appellant, then a 53-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained injury to her left upper extremity due to factors of
her federal employment. She claimed that, for the past 25 years, she had used her hands to lift,
hold, carry, and deliver mail. Appellant noted that she first became aware of her claimed condition
and its relation to her employment on July 1, 2016.2 She had stopped work on February 3, 2016.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant filed two Forms CA-2 on March 7, 2017 which contain substantially similar content, although one form
lists left carpal tunnel syndrome as the claimed injury and the other lists left Dupuytren’s contracture. In an
accompanying statement, appellant alleged that her present left upper extremity condition was also related to
September 24, 2015 left hand surgery which was necessitated by a prior employment-related injury.

Appellant submitted an August 24, 2016 report from Dr. James A. Brady, a Board-certified
hand surgeon, who indicated that appellant presented with left thumb pain complaints and
exhibited symptoms of left carpal tunnel syndrome and Dupuytren’s contracture of the left hand.
On September 14, 2016 Dr. Brady advised that recent diagnostic testing showed bone spurs in
appellant’s left thumb and that his examination confirmed left carpal tunnel syndrome.3 After
OWCP requested, on March 16, 2017, that appellant submit additional evidence, she submitted an
April 14, 2017 report from Dr. Juan J. Gargiulo, a Board-certified anesthesiologist, who diagnosed
several conditions, including left carpal tunnel syndrome and chronic pain syndrome.
By decision dated April 26, 2017, OWCP denied appellant’s claim finding that she had not
submitted medical evidence sufficient to establish causal relationship between the claimed
conditions and the accepted employment duties. It noted that Dr. Brady failed to provide medical
rationale regarding the present occupational disease claim given that appellant previously had a
“similar case” under OWCP File No. xxxxxx863, which had been accepted for left hand
osteoarthritis.4
On May 26, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
November 15, 2017.
By decision dated December 22, 2017, OWCP’s hearing representative affirmed OWCP’s
April 26, 2017 decision. She advised that, in reaching her determination, she had reviewed
medical reports associated with appellant’s prior left upper extremity claim under OWCP File No.
xxxxxx863, including: reports dated between January 17 and June 29, 2016 from Dr. Teresa
Habacker, a Board-certified hand surgeon; reports dated between July 18 and October 27, 2016
from Dr. Gargiulo; and an August 30, 2016 report from Dr. Elizabeth White-Fricker, a Boardcertified family practitioner.5
On June 19, 2018 appellant, through counsel, requested reconsideration of the
December 22, 2017 decision. She submitted a June 14, 2018 report from Dr. Brady who discussed
her medical history, including surgery he performed on August 1, 2017 to remove left thumb bone
spurs and to decompress her left carpal tunnel.
By decision dated November 19, 2018, OWCP denied modification of its December 22,
2017 decision.
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
3

Appellant submitted February 17, 2016 electromyogram and nerve conduction velocity studies showing left carpal
tunnel syndrome and a September 14, 2016 computerized tomography scan of the left hand showing evidence of prior
surgery, mild ulna subluxation, and small left thumb erosions.
4

OWCP advised that appellant’s previous claim had a “date of injury” of March 3, 2014.

5
The hearing representative asserted that none of these reports addressed appellant’s work duties or contained an
opinion relating these duties to her current left upper extremity condition.

2

videotapes, or drawings.6 Evidence may not be incorporated by reference, nor may evidence from
another claimant’s case file be used.7 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.8
All evidence that forms the basis of a decision must be in that claimant’s case record.9
In adjudicating appellant’s present claim, OWCP File No. xxxxxx910, OWCP specifically
referenced medical evidence obtained from an earlier claim, OWCP File No. xxxxxx863.
However, it did not combine the case records related to appellant’s left upper extremity claim or
incorporate the referenced evidence into the current case record.10 As noted, all evidence that
forms the basis of a decision must be included in the case record.11 Because OWCP neglected to
include evidence that helped to form the basis for its determination regarding appellant’s left upper
extremity claim in the current case record (i.e., evidence from OWCP File No. xxxxxx863), the
Board is not in a position to make an informed decision regarding appellant’s entitlement to FECA
benefits.12 Therefore, the case shall be remanded to OWCP to administratively combine OWCP
File Nos. xxxxxx863 and xxxxxx910. After this and other further development deemed necessary,
OWCP shall issue a de novo decision regarding appellant’s claim for a left upper extremity injury.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
7

Id.

8

Id.

9

Id. See also G.O., Docket No. 18-1483 (issued June 20, 2019).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (cases should be administratively combined when correct adjudication of the issues depends on
frequent cross-reference between files).
11

See supra note 9.

12
See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).

3

IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: March 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-189
Issued: June 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2013 appellant filed a timely appeal from an August 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to a July 9, 2013 employment incident, as
alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 27, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that he never claimed that it was a rock that struck him and
that he was a victim of a random crime and would not have been at the location of injury if not
for his federal employment.
FACTUAL HISTORY
On July 17, 2013 appellant, then a 28-year-old project specialist, filed a traumatic injury
claim (Form CA-1) alleging injury on July 9, 2013 as a result of being hit in the chest by
someone in a passing vehicle while in the performance of duty. He stated that he was “taking
[Global Positioning System] GPS of [a] work location ... [when he] started to turn and a passing
vehicle in [a] car yelled ‘retard or reject’ and shortly after [he] felt something hit [him] in [his]
chest.” Appellant attempted to locate the object that hit him, but it went into the surrounding
vegetation and he was not able to find it.
Appellant submitted a Form CA-16 authorization for examination and/or treatment dated
July 9, 2013 and a police report of the same date noting that “unknown actor(s) threw dirt or
debris at the victim, striking him in the chest.” The police report stated that he “was struck by an
unknown object thrown from a moving vehicle” while yelling out of the window and calling him
a “retard.”
In a July 9, 2013 report, Dr. Anthony Yang, a Board-certified emergency medicine
specialist, noted that appellant’s examination revealed a chest injury due to blunt trauma. He
explained that most often these injuries resulted in bruised ribs, although minor rib fractures may
not be seen on the initial x-rays. Dr. Yang stated that most broken or bruised ribs from blunt
chest injuries were not serious and got better within one to three weeks with rest and mild pain
medicine. He indicated that internal organs could be injured with blunt injury, so further
examination might be needed. Dr. Yang ordered bed rest until the injury was healed.
In a July 18, 2013 letter, OWCP informed appellant of the deficiencies in his claim. It
afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a July 9, 2013 report from Dr. Yang who diagnosed a chest
contusion. Dr. Yang stated that appellant presented with right pectoral pain after being struck at
work with a rock.
By decision dated August 27, 2013, OWCP denied appellant’s claim. It found that the
evidence was not sufficient to establish the incident he described, stating “The circumstances
surrounding the claimed incident are unclear and limited to your statement on the claim form and
there is no other factual evidence to explain exactly what happened.”
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time

3

5 U.S.C. §§ 8101-8193.

2

limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
However, an employee’s statement alleging that an injury occurred at a given time and in
a given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that the evidence does not contain inconsistencies sufficient to cast
serious doubt on appellant’s version of the employment incident. On his claim form, appellant
noted an injury on July 9, 2013 as a result of being struck in the chest by an object tossed from a
passing vehicle while in the performance of duty. He stated that he was taking GPS of a work
location when he started to turn and an unidentified individual in a passing vehicle yelled “retard
or reject” and he felt something hit him in the chest. Appellant attempted to locate the object
that hit him, but it landed in the surrounding vegetation and he was not able to find it. The
investigation police report dated July 9, 2013 noted that “unknown actor(s) threw dirt or debris at
the victim, striking him in the chest,” and that appellant was struck by an unknown object thrown
from a moving vehicle. Appellant sought medical treatment that day and submitted a
4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

See Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

8

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

3

Form CA-16 authorization for examination and/or treatment dated July 9, 2013 completed by his
employing establishment. The medical reports of record contain a history of injury consistent
with his account of events. In a July 9, 2013 report, Dr. Yang stated that appellant’s examination
revealed a chest injury due to blunt trauma. On July 9, 2013 he diagnosed chest contusion and
indicated that appellant presented with right pectoral pain after being struck with a rock while at
work.
On appeal, appellant contends that he never claimed that it was a rock that hit him and
that he was a victim of a random crime and would not have been at the location of injury if not
for his federal employment. The Board finds that the evidence of record is sufficient to establish
that he was struck in the chest by an object thrown from a passing motor vehicle while he was in
the performance of duty conducting an onsite investigation. The Board finds that appellant’s
allegations have not been refuted by strong or persuasive evidence. The evidence of record is
sufficient to establish that the claimed incident occurred at the time, place and in the manner
alleged by appellant on July 9, 2013.9
The remaining issue is whether the medical evidence establishes that appellant sustained
an injury causally related to the July 9, 2013 employment incident.10
The Board finds that this case is not in posture for decision on the issue of causal
relationship.
Dr. Yang indicated that appellant’s examination revealed a chest injury due to blunt
trauma and diagnosed chest contusion. He advised that appellant presented with right pectoral
pain after being struck at work. Dr. Yang explained that such injuries resulted in bruised ribs,
although minor rib fractures may not be seen on the initial x-rays. He stated that most broken
and bruised ribs from blunt chest injuries were not serious and got better within one to three
weeks with rest and mild pain medicine. Dr. Yang indicated that internal organs could be injured
with blunt injury, so further examination might be needed. He ordered bed rest until the injury
was healed.
The Board notes that, while Dr. Yang’s reports are not completely rationalized, they are
consistent in finding that appellant was struck by an object in his chest and sustained a blunt
trauma. The reports are not contradicted by any substantial medical or factual evidence of
record.11 While Dr. Yang’s reports are not sufficient to meet appellant’s burden of proof to
establish a claim, they raise an inference of causal relationship between the claimed conditions
and factors of his federal employment.12

9

See Leonard T. Munson, Docket No. 98-1478 (issued December 23, 1999).

10

Id.

11

See E.J., Docket No. 09-1481 (issued February 19, 2010).

12

Id.; see also John J. Carlone, 41 ECAB 354 (1989).

4

It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.13
On remand, OWCP should develop the medical evidence as appropriate to determine
whether the accepted incident caused an injury.14 After such further development as it deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision on the issue of causal
relationship.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: June 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430
(2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985).
14

Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003).

5