United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milton, FL, Employer
__________________________________________

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

Docket Nos. 08-1220 &
08-1367
Issued: September 3, 2009

Case Submitted on the Record

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

JURISDICTION
On March 19, 2008 appellant timely appealed the December 31, 2007 decision of the
Office of Workers’ Compensation Programs, which denied reconsideration of an October 2,
2007 schedule award for impairment of the left lower extremity.1 Additionally, on April 8, 2008
he timely appealed the Office’s March 12, 2008 decision, denying a schedule award for the right
lower extremity.2 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has greater than 19 percent impairment of the left
lower extremity, for which he received a schedule award; (2) whether appellant has a ratable
impairment of the right lower extremity; and (3) whether the Office properly denied appellant’s
October 16, 2007 request for reconsideration pursuant to 5 U.S.C. § 8128(a).

1

Docket No. 08-1220 (issued December 31, 2007).
jurisdiction over the October 2, 2007 schedule award.
2

Docket No. 08-1367 (issued March 12, 2008).

Given the timing of the appeal, the Board also has

FACTUAL HISTORY
On January 17, 1977 appellant, then a 38-year-old rural letter carrier, was involved in an
employment-related motor vehicle accident. The Office accepted his claim for herniated nucleus
pulposus at L5-S1. On April 13, 1977 appellant underwent a hemilaminectomy at L5 on the left
with excision of the L5 disc. He last worked for the employing establishment on April 23, 1988.
On June 30, 2003 appellant received a schedule award for three percent impairment of
the left lower extremity. The Office based the award on the February 13, 2002 report of its
district medical adviser, Dr. Harry L. Collins, Jr., a Board-certified orthopedic surgeon.
Dr. Collins found three percent impairment of the left lower extremity due to sensory deficit
involving the S1 nerve root. He relied on the March 1, 2001 examination findings of
Dr. Raymond R. Fletcher, a Board-certified orthopedic surgeon and Office referral physician.
On June 7, 2007 appellant filed a claim (Form CA-7) for an additional schedule award.
Dr. Kurt A. Krueger, appellant’s long-time attending physician, examined him on June 11, 2007
and found 14 percent impairment of the lower extremity due to loss of function from sensory
deficit, pain or discomfort.3 He also found six percent lower extremity impairment due to loss of
function from decreased strength. The specific nerve branches affected were the left L2, L3, L4
and L5. Dr. Krueger identified March 19, 2007 as the date appellant reached maximum medical
improvement.
In a report dated July 19, 2007, the district medical adviser, Dr. James W. Dyer, reviewed
Dr. Krueger’s recent report and concurred with the sensory and motor deficits identified by
appellant’s treating physician.4 Combining the 14 and 6 percent ratings found by Dr. Krueger
resulted in a left lower extremity impairment of 19 percent.
By letter dated August 20, 2007, appellant asked Dr. Krueger to prepare an additional left
lower extremity impairment rating for muscle atrophy. He also asked that Dr. Krueger rate his
right lower extremity. Dr. Krueger’s August 30, 2007 treatment notes indicated that the left leg
pain was all he really had to discuss regarding appellant’s impairment rating. With respect to
appellant’s right lower extremity, Dr. Krueger noted that he had not treated appellant for his right
leg because “his complaints were primarily left side.” Accordingly, he advised that he could not
address the impairment issues on the right side. Appellant subsequently asked that he be allowed
to change attending physicians, which the Office approved.5

3

Dr. Krueger is a Board-certified anesthesiologist with a subspecialty in pain medicine. He began treating
appellant in August 1996. Dr. Krueger’s June 11, 2007 report indicated, among other things, that appellant
continued to have low back and “primarily left lower extremity pain” that was rated on average 4 to 5 on a scale of
0 to 10. His June 11, 2007 impairment rating was in response to an Office development letter dated May 14, 2007.
4

Dr. Dyer is a Board-certified orthopedic surgeon.

5

Effective December 21, 2007, the Office recognized Dr. Ronald F. Pendleton as appellant’s treating physician.
Dr. Pendleton is a Board-certified family practitioner.

2

On October 2, 2007 the Office granted an additional schedule award for 16 percent
impairment of the left lower extremity.6 The award covered a period of 46.08 weeks from
September 30, 2007 through August 17, 2008.
Appellant requested reconsideration on October 16, 2007. He argued that he was entitled
to at least an additional 11 percent impairment due to muscle atrophy in the left thigh and calf.
Appellant also claimed that his left leg impairment rating should have included a rating for the
S1 nerve root. Lastly, he argued that he should have also been rated for his right lower
extremity. In his request for reconsideration, appellant referenced various medical records dating
back to 1990. However, he did not submit any additional evidence.
In a decision dated December 31, 2007, the Office denied appellant’s request for
reconsideration. It noted that appellant had not submitted any medical evidence relevant to his
entitlement to a schedule award. Additionally, the Office explained that appellant’s own belief
that he was entitled to additional impairment for muscle atrophy was not sufficient. Finally, it
explained that, because no formal decision had been issued regarding entitlement to a schedule
award for appellant’s right lower extremity, there was no right of appeal on that particular issue.
In a report dated January 3, 2008, Dr. Dyer, the district medical adviser, noted that
appellant had chronic low back pain and left leg pain due to postlaminectomy syndrome and
lumbar facet syndrome. He also indicated that there were no notations made of symptoms of the
right leg due to myelopathy or radiculopathy. Dr. Dyer explained that there were no objective
findings in the right lower extremity or any other basis upon which to assign a schedule award.
Accordingly, he found zero impairment of the right lower extremity.
On January 9, 2008 appellant filed a claim for a schedule award regarding his “right leg.”
However, he did not submit any current medical evidence regarding permanent impairment of
the right lower extremity. Appellant continued to question why Dr. Krueger declined to provide
an impairment rating for his right lower extremity.
Under cover letter dated February 4, 2008, appellant submitted medical records from a
July-August 1979 hospital admission at Tulane Medical Center. The discharge summary
referenced pain emanating from the lower spine of the posterior thigh in the back of the leg into
the left foot. There was also mention of numbness and paresthesias in the left foot. The pain
was reportedly most intense when ambulating on flat surfaces. It was further noted that when
driving appellant also had pain in the right lower extremity. A July 31, 1979 electromyography
revealed findings compatible with mild chronic neurogenic atrophy at L5-S1 bilaterally.
Appellant believed the above-noted evidence supported his claim for permanent impairment of
the right lower extremity, and he asked the Office to issue a formal decision either granting or
denying a schedule award.
By decision dated March 12, 2008, the Office denied appellant’s claim for a schedule
award for the right lower extremity.

6

The Office reduced the district medical adviser’s recommended award of 19 percent by the 3 percent left lower
extremity impairment previously awarded on June 30, 2003.

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LEGAL PRECEDENT -- ISSUES 1&2
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.7 No schedule award is payable for a member, function or organ of the
body that is not specified in the Act or in the implementing regulations.8 The Act’s list of
schedule members includes the eye, arm, hand, fingers, leg, foot and toes.9 Additionally, the Act
specifically provides for compensation for loss of hearing and loss of vision.10 By authority
granted under the Act, the Secretary of Labor added the breast, kidney, larynx, lung, penis,
testicle, ovary, uterus and tongue to the list of schedule members.11 Neither the Act nor the
regulations provide for the payment of a schedule award for the permanent loss of use of the
back or the body as a whole.12
The Act does not specify the manner by which the percentage loss of a member, function
or organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.13 Effective February 1, 2001, schedule awards are determined in accordance with the
A.M.A., Guides (5th ed. 2001).14
ANALYSIS -- ISSUES 1&2
Appellant’s argument before the Board is that he is dissatisfied with his then-attending
physician’s June 11, 2007 impairment rating. Citing decades-old medical evidence, he believes
that Dr. Krueger should have included additional impairment for S1 nerve root involvement, left
thigh and calf muscle atrophy and paresthesias of the left foot. Appellant believes the muscle
atrophy alone is worth an additional 11 percent impairment of the left lower extremity. In
addition, he appears to fault the Office and the district medical adviser for not demanding more
of Dr. Krueger. The onus is not on the Office to develop appellant’s schedule award claim.15
Furthermore, the Office already wrote to Dr. Krueger on May 14, 2007 requesting that he
provide an impairment rating under the A.M.A., Guides (5th ed. 2001). In response, it received
7

For a total, or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2) (2006).
8

Anna V. Burke, 57 ECAB 521, 523-24 (2006).

9

5 U.S.C. § 8107(c).

10

Id.

11

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(a) (2008).

12

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

13

20 C.F.R. § 10.404.

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

15

An employee seeking benefits under the Act has the burden of proof to establish the essential elements of his
claim. Amelia S. Jefferson, 57 ECAB 183, 187 (2005).

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the June 11, 2007 impairment rating. Appellant later questioned Dr. Krueger about what he
perceived to be additional impairments affecting his left and right lower extremities.
Dr. Krueger’s August 30, 2007 treatment notes clearly reflect his belief that the June 11, 2007
impairment rating accurately reflected the extent of appellant’s left lower extremity impairment.
In addition, with respect to the right lower extremity, he noted that he had not treated appellant
for his right leg because his complaints were primarily on the left side. Dr. Krueger declined to
rate appellant’s right lower extremity and recommended that he see another physician for this
purpose.
The Office cannot force Dr. Krueger to rate appellant on matters that he feels are either
unwarranted or for which he believes he is not in a position to accurately assess. In addition,
contrary to appellant’s contention, Dr. Krueger did not impede him from obtaining a rating
elsewhere. Notwithstanding appellant’s belief to the contrary, the record is devoid of any current
medical evidence clearly demonstrating the existence of a permanent impairment of the right
lower extremity. Beginning in August 1996, Dr. Krueger treated appellant for more than a
decade and his focus was primarily on his low back and left lower extremity. The district
medical adviser reviewed the record on January 3, 2008 and found that there were no objective
findings in the right lower extremity or any other basis upon which to assign a schedule award.
The Board finds that appellant has not demonstrated that he has a ratable impairment of the right
lower extremity.
As to appellant’s left lower extremity impairment, the district medical adviser identified a
Grade 2 sensory deficit and a Grade 4 motor deficit affecting the left L2, L3, L4 and L5 nerve
roots. The district medical adviser reportedly relied on Tables 15-15, 15-16 and 15-18, A.M.A.,
Guides 424, as the basis for his impairment rating. Tables 15-15 and 15-16 provide a
classification system for impairments due to sensory and motor deficits. The classifications
range from Grade 0 to 5. As noted, Dr. Dyer identified a Grade 2 sensory deficit and a Grade 4
motor deficit. The classification system is used in conjunction with Table 15-18 to determine the
lower extremity impairment due to sensory loss and/or motor deficits.
Other than noting the tables he relied upon, the district medical adviser did not explain
how he arrived at the overall 19 percent impairment rating of the left lower extremity. This
omission is particularly troublesome given that Table 15-18 does not provide a rating for
impairment involving L2 nerve root, which is one of the four affected nerve roots identified by
both Dr. Krueger and the district medical adviser. While Dr. Dyer agreed with Dr. Krueger’s
impairment rating, it is unclear from either physician’s report how they calculated a 14 percent
sensory deficit and a 6 percent motor deficit. Accordingly, the Board finds that the case is not in
posture for decision. The case shall be remanded to the Office in order to obtain clarification,
including detailed computations from the district medical adviser regarding the basis for the 19
percent impairment rating of the left lower extremity.
The Board also notes that, while the Office reduced the latest schedule award by
3 percent, the basis for this action is not entirely clear. The Act and implementing regulations
provide for the reduction of compensation for subsequent injury to the same schedule member.16
Benefits payable under section 8107(c) shall be reduced by the period of compensation paid
under the schedule for an earlier injury if: (1) compensation in both cases is for impairment of
16

5 U.S.C. § 8108; see 20 C.F.R. § 10.404(c).

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the same member or function or different parts of the same member or function; and (2) the latter
impairment in whole or in part would duplicate the compensation payable for the preexisting
impairment.17
The June 30, 2003 award of 3 percent impairment was based on sensory deficit affecting
the S1 nerve root. However, the latest impairment rating does not include sensory and/or motor
deficits affecting the S1 nerve root. Neither the district medical adviser nor the Office has
explained why offset is appropriate in this instance. Accordingly, the district medical adviser
should also address whether the latest impairment rating would in whole or in part duplicate the
prior schedule award.
CONCLUSION
The Board finds that appellant failed to establish entitlement to a schedule award for his
right lower extremity. As to the extent of his left lower extremity impairment, the Board finds
that the case is not in posture for decision.18
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed. The December 31 and October 2, 2007 Office
decisions are set aside, and the case is remanded for further action consistent with this decision.
Issued: September 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
17

20 C.F.R. § 10.404(c)(1), (2).

18

In light of the Board’s disposition of the October 2, 2007 schedule award, the Office’s December 31, 2007
decision denying reconsideration is rendered moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Ridge, TN, Employer
__________________________________________

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

Docket No. 11-1701
Issued: March 19, 2012

Case Submitted on the Record

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

JURISDICTION
On July 18, 2011 appellant timely appealed an April 18, 2011 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 claim.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
benefits effective May 8, 2011 on the grounds she no longer had any disability causally related to
her accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2010 appellant, then a 49-year-old sales service associate, filed an
occupational disease claim alleging that factors of her employment caused or aggravated her
right wrist and left foot problems. She first became aware of her conditions and that it was
caused or aggravated by her employment on March 31, 2010. Appellant stopped work that day
and did not return. OWCP accepted the claim for aggravation of de Quervain’s tenosynovitis,
right wrist and left foot plantar fasciitis. Appropriate compensation for medical and wage loss
were paid.
Appellant sought treatment with Dr. Karima Causey, a Board-certified family
practitioner, and underwent a de Quervain’s release of the right upper extremity on
April 22, 2010. Dr. Causey referred appellant to Dr. Arsen H. Manugian, a Board-certified
orthopedic surgeon, who took over appellant’s care. In January 4, 2011 work capacity
evaluation forms, Dr. Manugian opined that appellant reached maximum medical improvement
for both the right arm and left foot. Appellant was released to work with no right hand
restrictions, but assigned permanent restrictions for the left foot due to left-sided chronic plantar
fasciitis. In an accompanying January 4, 2011 report, Dr. Manugian stated “[r]egarding her
persistent chronic plantar fasciitis pain on the left side, in my opinion I do not feel that this is
necessarily work related, however, it might be helpful for the patient in an eight[-]hour day to
stand and walk up to one-half shift (four hours). There is no impairment regarding her left heel
pain.”
On January 25, 2011 OWCP requested that Dr. Manugian clarify his opinion regarding
the accepted left plantar fasciitis condition. In a February 8, 2011 report, Dr. Manugian stated
the accepted plantar fasciitis was better, but not completely resolved. He advised that the
persistent pain in her left foot was secondary to the plantar fasciitis and not necessarily work
related. The restrictions were for her plantar fasciitis and not directly related to her work.
On March 7, 2011 OWCP proposed to terminate appellant’s wage-loss compensation
based on Dr. Manugian’s opinion. It allotted 30 days for the submission of additional evidence.
In response appellant submitted September 29 and November 20, 2010 progress reports
from Dr. Manugian, previously of record. Of record was an April 7, 2011 telephone call from
appellant’s authorized representative concerning reemploying appellant.
By decision dated April 18, 2011, OWCP terminated appellant’s wage-loss compensation
benefits effective May 8, 2011 for the reason the medical evidence of record established that
appellant had no continuing disability due to the March 31, 2010 accepted employment injury
but that she remained entitled to medical benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

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OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
ANALYSIS
OWCP accepted appellant’s claim for aggravation de Quervain’s tenosynovitis, right
wrist and left foot plantar fasciitis. It based its termination of wage-loss compensation benefits
on January 4 and February 8, 2011 reports from Dr. Manugian, appellant’s attending physician.
Dr. Manugian examined appellant on January 4, 2011. He opined that appellant reached
maximum medical improvement for both the right arm and left foot. While Dr. Manugian
released appellant to work with no restrictions to the right hand, he assigned permanent
restrictions for the left foot due to left-sided chronic plantar fasciitis. In response to OWCP’s
request for clarification, Dr. Manugian stated in a February 8, 2011 report that the persistent pain
in appellant’s left foot was secondary to the plantar fasciitis and not necessarily work related. He
then stated the restrictions were for her plantar fasciitis and not directly related to her work. The
Board notes there is no requirement that the work injury be the direct or sole cause of appellant’s
condition. If the medical evidence reveals that a work factor contributed in any way to
appellant’s condition, the condition is compensable.4 The Board finds that Dr. Manugian did not
clearly state that all residuals of the accepted plantar fasciitis condition had resolved or otherwise
provide a fully-rationalized medical opinion on causal relation. Dr. Manugian’s opinion consists
of brief responses to the questions posed by OWCP. His conclusions are of a speculative and
equivocal nature.5 To be of probative value, a physician’s opinion on causal relationship should
be one of reasonable medical certainty.6
The Board finds that Dr. Manugian’s reports are of diminished probative value and does
not clearly establish that appellant’s accepted left foot plantar fasciitis condition resolved without
disability. The February 8, 2011 opinion of Dr. Manugian is not sufficiently detailed or
rationalized to support OWCP’s termination of wage-loss compensation benefits. For these
reasons, the Board will reverse.7
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation benefits effective May 8, 2011.

3

Id.

4

See R.J., Docket No. 09-1414 (issued April 14, 2010); Arnold Gustafson, 41 ECAB 131 (1989); Beth Chaput, 37
ECAB 158 (1985).
5

See Michael R. Shaffer, 55 ECAB 339 (2004).

6

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

7

Due to the disposition of the merits, it is not necessary to address appellant’s arguments on appeal.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 18, 2011 is reversed.
Issued: March 19, 2012
Washington, DC

Alec J. Koromilas, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

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

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
ASSISTANT SECRETARY FOR
ADMINISTRATION & MANAGEMENT,
New York, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1834
Issued: February 9, 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 June 18, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated April 7, 2008 that denied his claim. 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 met his burden of proof to establish that he sustained an
employment-related injury on December 26, 2006.
FACTUAL HISTORY
On December 27, 2006 appellant, then a 45-year-old management analyst, filed a Form
CA-1, traumatic injury claim, alleging that on December 26, 2006 he twisted his back and torso
while bending over to put a bag in a cabinet drawer and momentarily lost consciousness. He
experienced light-headedness, dizziness and pain in the torso, back, buttocks, legs, groin and

chest. Appellant stopped work that day. Gary Cowan, director of administration and finance,
controverted the claim, arguing that it appeared to be an idiopathic fall and that appellant did not
strike any surface including the floor.
By letter dated January 5, 2007, the Office informed appellant of the evidence needed to
support his claim. In a December 26, 2006 report, Dr. Suraj K. Tikko, a Board-certified
internist, advised that appellant could return to his previous work on December 26, 2006 but
should avoid prolonged sitting and standing. In reports dated January 4, 2007, Dr. Jeremie R.
Rachunow, Board-certified in family medicine, advised that on December 26, 2006 appellant
strained or sprained his back when he bent over to pick up a bag at work, lost consciousness, fell
flat on his back and could not get up. He noted appellant’s complaints of mid and low back pain
radiating into his legs and left foot pain. Dr. Rachunow advised that appellant injured himself
while moving, “packing something and moving a box when this happened.” He noted a past
history of arrhythmia discovered during varicocele surgery and mild borderline hypertension.
Dr. Rachunow provided findings on examination and diagnosed lumbosacral neuritis/radiculitis;
degeneration of the lumbosacral intervertebral disc, rule-out herniated disc; muscle spasm of the
back with stiffness; myalgia/myositis; periformis syndrome on the right; and pain in the right
foot. He checked a form box “yes,” indicating that the conditions were employment related,
advised that appellant could not work and prescribed physical therapy.
By decision dated February 16, 2007, the Office denied the claim on the grounds that
appellant did not sustain an injury in the performance of duty, noting that the incident was
possibly idiopathic.
On January 3, 2008 appellant, through his attorney, requested reconsideration1 In a
December 20, 2007 report, Dr. David R. Dynof, an orthopedic surgeon, discussed a May 19,
2006 injury.2 In a February 11, 2008 memorandum, Mr. Cowan informed the Office that
appellant was off work from May 20 through December 25, 2006, and on December 26, 2006
reported for work unannounced. He stated that immediately upon appellant’s arrival, Mark Falk,
director of administration and finance, met with appellant regarding his return to work and
appellant submitted medical certification indicating that he could return to work. Mr. Falk
discussed appellant’s work duties and restrictions he would be required to follow. Mr. Cowan
stated that he telephoned appellant at 9:15 a.m. and discussed his return to work and work
restrictions. At 11:54 a.m., appellant advised Mr. Falk by e-mail that he would be leaving at
1:00 due to his lack of energy, and left work at 12:28 p.m., indicating that his back was hurting
and he had to visit his doctor. He stated that at no time on December 26, 2006 did appellant state
that he had lost consciousness or suffered a fall to the floor.
The employing establishment submitted e-mails beginning at 8:51 a.m. on December 26,
2006 when Mr. Falk informed appellant that “for now you can work at the front desk.” Mr. Falk
related that the contents of appellant’s old cubicle had been packed, but as they weighed more
1

Appellant also requested reconsideration of a January 11, 2007 decision, concerning a May 19, 2006 injury,
adjudicated by the Office under file number xxxxxx946. He has an additional appeal before the Board for that
claim, Board Docket No. 08-1835, that will be adjudicated separately.
2

Id.

2

than 10 pounds, he did not want him moving or unpacking the boxes, and noted that he
understood that appellant would be working until 1:30 p.m. In a 9:52 e-mail, Mr. Cowan advised
appellant that he was not to lift, remove or move any items or belongs from his current cubicle,
and that, if he required the use of any personal belongings, he was to contact Mr. Falk who
would arrange for the items to be retrieved. He instructed appellant not to lift, push, pull,
attempt to move, or slide items weighing over 10 pounds. Mr. Cowan noted that appellant’s job
duties that day were to review audit statements, and that a cubicle would be set up the next day
when he was advised to report to Mr. Cowan’s office at 7:30 a.m. In an 11:54 a.m. e-mail,
appellant informed Mr. Falk that he would only be working until 1:00 p.m. as he did not have the
energy to work until 1:30 p.m. He stated that he felt a little dizzy before 9:00 a.m. because he
was walking back and forth around the office trying to get everything set up, and therefore
visited the nurse’s station because his back was hurting. Appellant requested that the times he
was required to walk back and forth be limited as he was trying to regain energy levels, and
when he was assigned a workstation he would need someone to unpack his belongings. In a
12:08 p.m. e-mail, Mr. Falk informed Robert Dietrick and Mr. Cowan that several minutes after
he received the 11:54 a.m. e-mail, appellant called and said that, as his back was hurting, he was
going to the nurse’s office to lie down. He stated that there had been no excessive walking back
and forth to his office by appellant, and he had only come to his office once for the meeting
earlier that morning, noting that, when he checked on appellant, he was sitting at the front desk.
In a 12:30 p.m. e-mail, Mr. Falk noted that appellant returned from the nurse’s office and was
leaving to see his doctor but would be in the next day.
By decision dated April 7, 2008, the Office denied modification of the February 16, 2007
decision, finding that appellant suffered an idiopathic fall on December 26, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.4
Office regulations, at 20 C.F.R. § 10.5(ee) 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.5 In order to determine whether an employee sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
3

5 U.S.C. §§ 8101-8193.

4

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

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

3

conjunction with one another. The first component is whether the employee actually
experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.6
When an employee claims a traumatic injury in the performance of duty, he or she must
establish the “fact of injury,” namely, he or she must submit sufficient evidence to establish that
he or she experienced a specific event, incident or exposure occurring at the time, place and in
the manner alleged, and that such event, incident or exposure caused an injury.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an employment-related back injury on December 26, 2006. The record does not
support his allegation that a specific event occurred which caused an injury.8 On his claim form,
appellant alleged that he twisted his back and torso while bending over to put a bag in a cabinet
drawer and that he momentarily lost consciousness. He did not allege that he fell. Both
Mr. Cowan and Mr. Falk described interactions with appellant that occurred on
December 26, 2006. The e-mails that day confirm that appellant advised Mr. Falk that he had no
energy and was leaving at 1:00 p.m., noting that he felt a little dizzy before 9:00 a.m. because he
was walking back and forth around the office trying to get things set up and had visited the
nurse’s station because his back was hurting. Again, appellant did not report a fall. The record
does not contain a nurse’s report showing that appellant sought treatment that day. Mr. Falk
reported that he did not witness appellant excessively walking, stating that, when he checked on
appellant, he was sitting at the front desk. The first mention of a fall was noted in a January 4,
2007 report by Dr. Rachunow, who advised that appellant stated that on December 26, 2006 he
bent to pick up a bag at work, loss consciousness, fell down and could not get up.
The Board finds that appellant’s allegations are vague and inconsistent and do not relate
with specificity the mechanics of how he sustained an injury on December 26, 2006. In e-mails
that day, appellant reported that, due to walking back and forth and setting everything up, he
became weak and dizzy and went to see the nurse. On his claim form, submitted the next day, he
reported that he twisted his back and torso while bending over to put a bag in a cabinet and
momentarily lost consciousness.
In neither case did appellant report that he fell.
Dr. Rachunow’s report contains the only report of a fall at work. Appellant did not establish that
he sustained an injury in the performance of duty on December 26, 2006 because he did not
submit sufficient evidence to establish that he actually experienced an employment incident at
the time, place, and in the manner alleged.9

6

Bonnie A. Contreras, 57 ECAB 364 (2006).

7

Paul Foster, 56 ECAB 208 (2004).

8

Id.

9

Id. The Board notes that, although the Office adjudicated this claim as an idiopathic fall, as discussed above, the
record does not support that appellant fell at work on December 26, 2006.

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on December 26, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2008 be affirmed.
Issued: February 9, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, BAKERSFIELD POST
OFFICE, Bakersfield, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0255
Issued: December 28, 2021

Case Submitted on the Record

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

On December 1, 2021 appellant filed an appeal from a January 8, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0255.
The Board has duly considered the matter and notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority
is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the January 8, 2021 decision was July 7, 2021. As appellant did
not file an appeal with the Board until December 1, 2021, more than 180 days after the January 8,
2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0255 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0255 is dismissed.
Issued: December 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Mariposa, CA,
Employer
__________________________________________

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

Docket No. 15-0861
Issued: December 15, 2015

Case Submitted on the Record

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

JURISDICTION
On March 9, 2015 appellant filed a timely appeal from a February 18, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $244.02 for the period November 17 to January 2, 2015 because OWCP used an
inaccurate pay rate; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether it properly determined that it would recover the overpayment by deducting the
full amount from appellant’s next continuing compensation payment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 2014 appellant, then a 25-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on October 26, 2014 he injured his right knee when he
slipped on loose rock. On the claim form the employing establishment indicated that appellant
was a temporary employee working 10 hours a day, four days per week. Appellant stopped work
on the date of injury.
OWCP accepted appellant’s claim for sprains of the lateral collateral and cruciate
ligaments of the right knee, a tear of the right medial meniscus, and derangement of the right
posterior horn of the medial meniscus.
In a telephone call dated December 16, 2014, appellant advised that his temporary
appointment ended on November 15, 2014. He planned to work in another job after the
appointment ended but there was not much work available outside the park. Appellant received
continuation of pay from October 27 to November 16, 2014. He was paid compensation benefits
beginning November 17, 2014.
In a December 16, 2014 pay rate memorandum, OWCP calculated a provisional pay rate
of $551.25 using the 150-formula.2 It multiplied appellant’s hourly rate of $19.11 by 10, the
number of hours per day that he worked, to find a total daily pay rate of $191.10. OWCP
multiplied $191.10 by 150 and divided by 52 which yielded a total weekly pay rate of $551.25.
It paid him compensation for total disability of $1,470.00 for the period November 17 to
December 12, 2015 using a pay rate of $551.25.
On December 22, 2014 the employing establishment indicated that appellant worked in a
temporary position not to exceed six months, or 1040 hours, per year. Appellant earned gross
pay of $18,345.60. The employing establishment related that a similar employee with the same
appointment and working in the same or similar job for the year immediately preceding the
injury earned $19,874.40.
On January 6, 2015 OWCP issued appellant compensation of $874.77 for total disability
from December 13, 2014 to January 2, 2015 using a weekly pay rate of $382.20. It based its pay
rate determination on the earnings of a similarly situated employee who worked the greatest
number of hours in the year preceding his injury and earned $19,874.40. OWCP divided
$19,874.40 by 52 to find a pay rate of $382.20.
On January 9, 2015 the employing establishment specified that appellant worked from
2010 to 2014 as a temporary employee eligible for but not guaranteed rehire. It provided SF-50s
documenting his appointment as a temporary employee not to exceed 1040 hours in 2010, 2011,
2013, and 2014.

2

The 150-formula is set forth at 5 U.S.C. § 8114(d)(3). It provides that “average annual earnings may not be less
than 150 times the average daily wage the employee earned in the employment during the days employed within one
year immediately preceding his or her injury.”

2

In a report of telephone call dated January 9, 2015, the employing establishment related
that appellant worked 104 ten-hour days in the year preceding his injury, or 1040 hours. It
divided 1040 hours by 8 to find a total of 130 days worked. The employing establishment
advised that appellant earned $18,345.60 in gross compensation for the year preceding his injury,
which when divided by 130 yielded a daily average wages of $141.12. It applied the 150formula ($141.12 times 150 days divided by 52 weeks), to find a weekly pay rate of $407.08.
By letter dated January 14, 2015, OWCP informed appellant that it had recalculated his
pay rate and adjusted his compensation for temporary disability. It noted that the employing
establishment hired him for a six-month appointment of 1040 hours. Appellant worked 104 days
prior to his injury on October 26, 2014.3 He received continuation of pay from October 27 to
November 16, 2014, when his appointment ended. OWCP paid appellant compensation from
November 17 through December 12, 2014 based on a weekly pay rate of $551.25. For the period
December 13, 2014 through January 2, 2015, it paid him compensation using a pay rate of
$382.20. OWCP notified appellant that it had recalculated his pay rate based on information
provided by the employing establishment. It found that he earned $18,345.60 working 1040
hours or 104 days. OWCP divided $18,345.60 by 104, which yielded daily average earnings of
$176.40. Using the 150-formula, it multiplied $176.40 by 150 and then divided by 52 to find a
weekly pay rate of $508.85. In an accompanying worksheet, OWCP calculated that using the
150-formula yielded a higher pay rate than using the pay rate of another employee in the same
class.
On January 14, 2015 OWCP notified appellant of its preliminary determination that he
received an overpayment of $244.02 for the period November 17, 2014 to January 2, 2015
because it paid him at an inaccurate pay rate. It found that, for the period November 17 through
December 12, 2014, it paid appellant $1,470.00 in compensation for 16 days using a pay rate of
$551.25 per week. OWCP determined that it should have paid him $1,083.05 using a pay rate of
$508.35. It subtracted $1,083.05 from $1,470.00 to find an overpayment of $386.95. OWCP
further found that, for the period December 13, 2014 through January 2, 2015, it paid appellant
$874.77 for 21 days of compensation using a pay rate of $382.20 per week. It calculated that it
should have paid him $1,017.70 for this period, which created an underpayment of $142.23.
OWCP subtracted the underpayment of $142.23 from the overpayment of $386.95 to find a total
overpayment of $244.72. It further advised appellant of its preliminary determination that he
was without fault in the creation of the overpayment.4 OWCP requested that he complete the
enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, OWCP notified appellant that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
By decision dated February 18, 2015, OWCP finalized its finding that appellant received
an overpayment of compensation in the amount of $244.02. It determined that he was without
3

OWCP indicated that appellant worked 104 hours rather than days before his injury; however, it is apparent that
this is a typographical error.
4

OWCP determined the overpayment by subtracting $142.23 from $386.95, which yields $244.72 rather than
$244.02.

3

fault in creating the overpayment but denied waiver as he failed to submit the overpayment
recovery questionnaire supported by financial information. OWCP found that it would recover
the overpayment by deducting the full amount from appellant’s next compensation check.
On appeal appellant disagrees with OWCP’s calculations. He asserts that multiplying
$551.25 per week by 16 days does not equal $1,470.00 and that multiplying $508.00 by 16 days
does not equal $1,083.05. Appellant maintains that OWCP should have paid him $2,033.40 for
each period, citing OWCP’s procedures. He alleges that he received an underpayment of
compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA5 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 duty.6 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.7
An employee is paid compensation for total disability equal to a percentage of his
monthly pay.8 To calculate monthly pay, the initial issue is the determination of the specific time
when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly
pay is determined at the time of injury, the time disability begins, or the time compensable
disability recurs, if the recurrence begins more than six months after a return to regular full-time
employment.
Once the proper time period is determined, OWCP calculates appellant’s pay rate using
5 U.S.C. § 8114(d). This section provides:
“Annual average earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for particular employment, or the average thereof if
the daily wage has fluctuated, by 300 if he was employed on the basis of a 6-day
5

5 U.S.C. § 8102.

6

Id. at § 8102(a).

7

Id. at § 8129(a)

8

Id. at § 8106(a).

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workweek, 280 if employed on the basis of a 5-day week, and 260 if employed on
the basis of a 5-day week.9
(2) If the employee did not work in employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury, but the position was one which would
have afforded employment for substantially a whole year, the average
annual earnings are a sum equal to the average annual earnings of an
employee for the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in
the same or neighboring place as determined under paragraph (1) of this
subsection.”10
If sections 8114(d)(1) and (2) of FECA are not applicable, such as in cases where
the date-of-injury employment was seasonal work that would not have provided
employment for substantially the whole year preceding the injury, section
8114(d)(3) provides as follows:
“If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of injury having regard to
the previous earnings of the employee in [f]ederal employment and of other
employees of the United States in the same or most similar class working in the
same or most similar employment in the same or neighboring location, other
previous employment of the employee, or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within one
year immediately preceding his injury.”11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant, a temporary employee, sustained sprains of the lateral
collateral and cruciate ligaments of the right knee, a tear of the right medial meniscus, and
derangement of the right posterior horn of the medial meniscus as the result of an October 26,
2014 employment injury. Appellant received continuation of pay from October 27 to
November 16, 2014, when his temporary appointment ended and compensation from OWCP for
disability beginning November 17, 2014. As appellant stopped work at the time of his injury, his

9

Id. at § 8114(d).

10

Id. at § 8114(d)(1), (2).

11

Id. at § 8114(d)(3); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates,
Chapter 2.900.4 (March 2011).

5

pay rate for compensation purposes is based on his monthly pay at the time his injury occurred
on October 26, 2014.12
Appellant did not work substantially the whole year immediately preceding the injury and
was not employed in a position that would have afforded employment for substantially a whole
year.13 Consequently, sections 8114(d)(1) and (2) of FECA are not applicable in determining his
pay rate. Instead, appellant’s pay rate must be determined in accordance with section
8114(d)(3).14
OWCP initially paid compensation from November 17 through December 12, 2014 based
on a weekly pay rate of $551.24. It calculated the pay rate by multiplying his hourly wages of
$19.11 by 10 hours per day, which yielded $191.10. Applying the 150-formula, OWCP
multiplied $191.10 by 150 and divided by 52 to find a weekly pay rate of $551.24. It
subsequently found that appellant received an overpayment of compensation during this period
because he received wage-loss compensation at an incorrect pay rate. Based on information
provided by the employing establishment, OWCP found that he worked 1040 hours or 104 days
and earned $18,345.60. It divided $18,345.60 by 104, to find daily average earnings of $176.40.
Utilizing the 150-formula, OWCP multiplied $176.40 by 150 and divided by 52 to find a weekly
pay rate of $508.85.
The Board finds that the case is not in posture for decision regarding whether the amount
of overpayment of compensation as OWCP incorrectly calculated his weekly pay rate. OWCP
found that he worked 10 hours a day for a total of 1040 hours, or 104 total days. It calculated
appellant’s daily average wage as $176.40 based on its finding that he worked 104 days, and
used this daily wage in determining his weekly pay rate using the 150-formula. Appellant
worked, however, 10 hours per day and four days per week, or a 40-hour workweek. The 150formula is based on a five-day workweek or 40 hours per week. As appellant worked a 40-hour
week, OWCP should have divided 1040 by eight hours to find that he worked the equivalent of
130 days.15 Consequently, the Board will remand the case for OWCP to recalculate his pay rate
for compensation purposes. On remand, OWCP should consider which provision of section
8114(d)(3) would afford appellant the highest earnings on which to base his pay rate for
compensation purposes. After such further development, it shall determine the amount of
overpayment of compensation and, if necessary, issue an appropriate decision.16

12

Id. at § 8101(4).

13

OWCP procedures indicate the phrase substantially the whole year means 11 months. Federal (FECA)
Procedure Manual, supra note 11.
14

See supra note 11.

15

See A.G., Docket No. 08-2265 (issued September 28, 2009).
establishment calculation on January 9, 2015.
16

This was consistent with the employing

In view of the Board’s disposition of the overpayment, the issues of waiver and recovery of the overpayment
are moot.

6

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether the amount
of overpayment of compensation as OWCP must recalculate his pay rate for compensation
purposes.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW YORK HARBOR HEALTHCARE
SYSTEM, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1469
Issued: December 8, 2016

Case Submitted on the Record

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

JURISDICTION
On July 5, 2016 appellant, through counsel, filed a timely appeal from a May 3, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant sustained an injury causally related to the June 17, 2014
employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The facts relevant to the
instant appeal are set forth below.
On June 24, 2014 appellant, then a 30-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on June 17, 2014 he experienced numbness in
both legs and a pinched nerve or pulled muscles in his neck, shoulders, and spine. He related
that his “office chair and walker locked into one another due to lack of space in [the] office. The
chair I was on slipped out from under me and I hit the floor.” Appellant stopped work on
June 17, 2014.
Dr. Mircea Muresanu, Board-certified in emergency medicine, evaluated appellant in the
emergency room on June 17, 2014 for back and bilateral knee pain after his walker got stuck in
an office chair and he fell forward. He provided a past medical history of appellant walking
“with help of [a] walker, slipped lumbar dis[c]s.” Dr. Muresanu indicated that x-rays of the
knees and lumbar spine did not show a fracture. He diagnosed a fall with knee and back pain.
On June 18, 2014 Dr. Alex Racco, an osteopath, discussed appellant’s complaints of neck
pain and tingling in the lower extremities after he fell forward on his knees at work after slipping
between his chair and walker. He diagnosed lumbar radiculopathy and cervical radiculitis.
Dr. Racco instructed appellant to follow up with a workers’ compensation physician.
A July 1, 2014 magnetic resonance imaging (MRI) scan study of the lumbar spine
revealed disc bulges at L1-2 through L4-5 and a disc herniation at L5-S1 with “curvature of the
lumbar spine with convexity to the left.” A July 1, 2014 MRI scan study of the cervical spine
revealed disc bulges at C2-3 through C6-7 “more prominent than on the prior exam[ination],” a
new left paracentral disc herniation at C5-6, and foraminal narrowing at C2-3 through C4-5 as a
result of uncinate process hypertrophy.
Dr. Racco, in a July 8, 2014 report, advised that he was treating appellant after a fall at
work. He noted that an orthopedist found that he was unable to work.
In a statement dated July 22, 2014, appellant indicated that on June 17, 2014 he sustained
numbness in his legs and feet after he fell forward hitting the ground with his knees. He related,
“On that morning, I went to move my chair and the wheel of the chair got tangled with the one of
my walker and I went flying one way and the chair the other.”

3

Docket No. 15-1166 (issued August 24, 2015).

2

On July 31, 2014 Dr. Racco noted that he had evaluated appellant on June 18, 2014 after
he fell at work. He opined that diagnostic studies showed a herniated cervical disc.
In a report dated July 31, 2014, Dr. Todd Schlifstein, an osteopath, reviewed appellant’s
symptoms of pain in the posterior, paraspinal area of the neck, numbness and tingling of both
arms, and lumbar spine. He indicated that appellant had experienced an accident at work on
June 17, 2014. Dr. Schlifstein diagnosed primary cervical disc displacement, primary low back
syndrome, back strain, radicular symptoms of the upper and lower extremities, and lumbar disc
displacement. He noted that appellant was off work.
Counsel, on August 5, 2014, asserted that appellant had been injured in the course of his
employment duties and noted that after appellant fell he was taken to the emergency room at the
hospital where he worked.
By decision dated August 21, 2014, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a diagnosed condition as a result of the June 17,
2014 employment incident.
On September 5, 2014 Dr. Schlifstein noted treating appellant for low back syndrome,
cervical disc displacement, and chondromalacia of the patella. He opined that appellant was
totally disabled from July 31 to December 30, 2014.
In a report dated September 15, 2014, Dr. Schlifstein related that appellant had symptoms
of “neck pain at the back of his neck and down his arms after a fall at work on June 17, 2014.
[Appellant] has numbness and tingling in his left and right arms. [He] has low back pain with
some numbness and tingling from the same accident.” Dr. Schlifstein reviewed the findings of
herniated discs at C5-6 and L5-S1 on MRI scans. He related, “[Appellant] has no previous
history of neck and back pain prior to the accident. [His] injuries and conditions mentioned
above are causally related to [the] employment accident caused on June 17, 2014. At the current
time, [appellant] is at a level of total disability.”
On October 3, 2014 appellant, through counsel, requested reconsideration. He asserted
that the September 15, 2014 report from Dr. Schlifstein was sufficient to show that he sustained
an injury in the course of his federal employment.
In progress reports dated November 11, 2014 and March 31, 2015, Dr. Schlifstein
diagnosed cervical disc displacement, low back syndrome, back strain, radiculopathy of the
upper and lower extremities, and lumbar disc displacement. He listed findings on examination
and noted that appellant was out of work.
By decision dated April 6, 2015, OWCP denied modification of its August 21, 2014
decision. It found that Dr. Schlifstein did not provide any rationale for his opinion that the
June 17, 2014 employment incident resulted in the diagnosed conditions.
Appellant appealed to the Board. In a decision dated August 24, 2015, the Board
affirmed the April 6, 2015 decision, finding that the medical evidence of record was

3

insufficiently rationalized to show that he sustained a diagnosed condition as a result of the
June 17, 2014 work incident.4
On April 23, 2016 appellant, through counsel, again requested reconsideration and
submitted additional medical evidence. Counsel argued that the medical evidence supported that
appellant’s attending physician was aware of his preexisting cerebral palsy and was sufficient to
establish fact of injury.
In a report dated January 15, 2016, Dr. Schlifstein indicated that appellant had preexisting
cerebral palsy. He related that on June 17, 2014 appellant “got injured at work trying to go from
sit[ting] to stand[ing], [and] had a slip and fall causing neck and lumbar spine injury.”
Dr. Schlifstein attributed appellant’s disc herniation to the fall, noting that he did not have pain in
his leg or back prior to the incident.
Dr. Racco, on January 28, 2016, advised that appellant had cerebral palsy unrelated to his
current injury.
By decision dated May 3, 2016, OWCP denied modification of its prior decision. It
found that the medical evidence of record was insufficient to show that appellant experienced a
herniated disc on June 17, 2014.
On appeal counsel contends that he submitted factual and medical evidence sufficient to
establish that appellant sustained an injury in the performance of duty. He notes that appellant’s
physicians knew of his cerebral palsy and that it was unrelated to the condition resulting from the
work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.7 Second, the
4

See supra note 3.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

4

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.8 An employee may establish that the employment
incident occurred as alleged, but fail to show that his disability and/or condition relates to the
employment incident.9
ANALYSIS
In a prior decision, the Board determined that the medical evidence then of record was
insufficient to establish that appellant sustained an injury due to the June 17, 2014 work incident.
In particular, it found that the June 17, 2014 report from Dr. Muresanu, the June and July 2014
reports from Dr. Racco, and the September 2014 through March 2015 reports from
Dr. Schlifstein either did not address causation or were not based on an accurate medical history,
and thus were of diminished probative value. The Board noted that the June 17, 2014 emergency
room report from Dr. Muresanu contained a history of appellant using a walker as a result of
slipped discs, but that this history was not addressed by the other reports of record. It further
found that Dr. Schlifstein had not provided rationale for his opinion that the diagnosed
conditions of a herniated discs at C5-6 and L5-S1 resulted from the June 17, 2014 work incident.
Appellant, through counsel, requested reconsideration and submitted additional medical
evidence.
The Board finds that the additional evidence submitted is insufficient to establish an
injury causally related to the June 17, 2014 employment incident. In a report dated January 15,
2016, Dr. Schlifstein discussed appellant’s history of preexisting cerebral palsy. He noted that
on June 17, 2014 appellant fell at work injuring his cervical and lumbar spine when he tried to
stand from a seated position. Dr. Schlifstein opined that he sustained a herniated disc at the time
of his fall, providing as a rationale that he did not experience any back or leg pain before the fall.
However, a medical opinion that a condition is causally related to an employment injury because
the employee was asymptomatic before the injury, but symptomatic after it is insufficient,
without supporting rationale, to establish causal relationship.10 Dr. Schlifstein further did not
address whether appellant used a walker for preexisting slipped discs, as indicated by the
emergency room report, or as a result of another condition such as his cerebral palsy.
Dr. Racco, on January 28, 2016, advised that appellant had cerebral palsy unrelated to his
current injury. He did not attribute any diagnosed medical condition to the June 17, 2014 work
incident and thus his opinion is of little probative value.
On appeal counsel argues that the evidence submitted supports that appellant sustained an
employment injury on June 17, 2014. He notes that his physicians were aware that he had
cerebral palsy. Appellant has the burden, however, to submit medical evidence based on a
8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

See D.R., Docket No. 16-0411 (issued June 10, 2016); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

5

complete and accurate history explaining how the employment incident described caused or
contributed to the diagnosed medical condition and supporting that opinion with medical
reasoning to demonstrate that the conclusion reached is sound, logical, and rationale.11 He did
not submit such evidence and thus did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury causally
related to the June 17, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

John W. Montoya, 54 ECAB 306 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ACADEMY, Annapolis, MD, Employer
__________________________________________

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

Docket No. 12-1695
Issued: January 29, 2013

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 August 6, 2012 appellant filed a timely appeal from a May 21, 2012 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 an employment-related permanent
impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.
FACTUAL HISTORY
On July 15, 2010 appellant, then a 54-year-old food service worker, completed a
traumatic injury claim (Form CA-1) alleging that she sustained a right hand injury in the
performance of duty on July 13, 2010 when she slipped while holding onto the handle of a truck.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for a right wrist sprain. Appellant underwent right wrist arthroscopic
surgery on December 27, 2010. The attending orthopedic surgeon, Dr. Garth Smith, diagnosed
right wrist triangular fibrocartilaginous complex (TFCC) tear, right wrist synovitis and right
carpal tunnel syndrome.
Appellant returned to work in a light-duty position on March 17, 2011. In a report dated
August 19, 2011, Dr. Smith stated that appellant was still having some diffuse symptoms on the
ulnar aspect of the wrist that are aggravated with heavy lifting and heavy rotational activities.
He opined that she had reached maximum medical improvement and final impairment rating
should be considered.
On April 5, 2012 appellant filed a claim (Form CA-7) for a schedule award. By letter
dated April 10, 2012, OWCP advised that appellant needed to submit medical evidence that
included a detailed description of a permanent impairment and a calculation as to the degree of
impairment pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Appellant was advised that, if evidence
was not received within 30 days, a decision would be issued based on the evidence of record.
In a report dated April 13, 2012, a nurse practitioner provided results on examination.
The nurse practitioner stated that appellant would need to follow up with Dr. Smith for a
disability rating.
In a decision dated May 21, 2012, OWCP found that appellant was not entitled to a
schedule award under 5 U.S.C. § 8107. It determined that the medical evidence did not establish
a permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.6

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

5

20 C.F.R. § 10.404 (1999).

6

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

2

OWCP procedures indicate that medical evidence for a schedule award should include an
attending physician’s detailed report with a description of the impairment, physical findings,
functional history, clinical studies and an opinion as to impairment under the A.M.A., Guides.7
ANALYSIS
As noted, the medical evidence necessary to establish a schedule award under 5 U.S.C.
§ 8107 requires a detailed medical report from the attending physician discussing the physical
findings, the impairment and the percentage calculated under the A.M.A., Guides. Appellant did
not submit any probative medical evidence to establish permanent impairment of his right arm.
The April 13, 2012 report from the nurse practitioner is of no probative medical value as a nurse
practitioner is not a physician under FECA.8 The attending physician, Dr. Smith, did not provide
any opinion with respect to permanent impairment.
On appeal, appellant submitted an additional medical report. The Board’s jurisdiction is
limited to the evidence that was before OWCP at the time of the May 21, 2012 decision on
appeal.9 The Board cannot consider new evidence on appeal. Based on the evidence before
OWCP at the time of the May 21, 2012 decision, appellant did not establish entitlement to a
schedule award pursuant to 5 U.S.C. § 8107.
Appellant may request a schedule award before OWCP based on medical evidence
showing progression of an employment-related condition resulting in permanent impairment.
CONCLUSION
The Board finds that appellant has not established a permanent impairment to a scheduled
member or function of the body under 5 U.S.C. § 8107.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c) (January 2010).
8

See A.A., Docket No. 12-1116 (issued November 8, 2012).

9

20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 21, 2012 is affirmed.
Issued: January 29, 2013
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
__________________________________________
M.P., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 15-1192
Issued: October 5, 2015

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 May 4, 2015 appellant filed a timely appeal from the April 16, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that his bilateral
hearing loss and tinnitus is causally related to his federal employment.
1
2

5 U.S.C. § 8101 et seq.

On appeal appellant provided new evidence. However, the Board has no jurisdiction to review this evidence for
the first time on appeal.2 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.

FACTUAL HISTORY
On June 5, 1994 appellant then a 44-year-old crane operator supervisor, filed an
occupational disease claim, alleging that his hearing loss was caused by his over 20 years of
work with the employing establishment.
OWCP referred appellant to Dr. Preston Rice, a Board-certified otolaryngologist. In a
September 28, 1994 report, Dr. Rice noted that appellant had worked for the employing
establishment since 1973, but that he only had audiograms from 1984 to 1994 for review. He
noted that appellant related a significant change in his left ear since he began work with the
employing establishment. Dr. Rice stated that audiograms from 1984 to 1994 did not show any
significant change beyond what would be expected from presbycusis. He opined that there was
nothing in appellant’s work history to explain an increase in hearing loss in only one ear.
Dr. Rice concluded that there was no significant aggravation of appellant’s hearing loss due to
workplace noise exposure.
In a December 9, 1994 decision, OWCP denied appellant’s claim, finding that his hearing
loss was due to a preexisting condition.
On January 7, 2015 appellant filed a claim, alleging that his bilateral hearing loss and
tinnitus had been caused by factors of his federal employment.3 He opined that appellant had
hearing loss from noise exposure as a ship’s carpenter and a crane operator. Appellant stated
that his condition was caused or aggravated by his employment on September 1, 1997. The
employing establishment controverted the claim and noted that he had retired on
September 1, 1997.
By letters dated February 3, 2015, OWCP informed appellant and the employing
establishment of the type of evidence needed to develop his claim and requested that they submit
such evidence within 30 days. It asked appellant to indicate why he did not file his claim earlier.
OWCP also asked him to state whether he had previously filed a claim for hearing loss and, if so,
to provide information about that claim. It further asked appellant to describe all previous ear or
hearing problems.
OWCP received personnel records from the employing establishment, including
appellant’s employment history, position descriptions, and notices of personnel action. A
January 7, 2015 report from an audiologist was also submitted.
By decision dated April 16, 2015, OWCP denied appellant’s claim for hearing loss as the
evidence was insufficient to establish that the workplace exposure occurred as described. It
noted that the claim form indicated that appellant was not aware that he could file a claim.
OWCP noted that appellant did not respond to its questions in its February 3, 2015 letter. It also
noted that appellant had a previous June 5, 1994 claim for hearing loss that had been denied on
December 9, 1994. OWCP found that appellant did not respond to any of the questions and he
failed to identify the source of the hazardous noise exposure. It also explained that the medical

3

OWCP combined the files for the 1994 claim and the 2015 claim.

2

evidence had not established a diagnosed medical condition causally related to the work injury or
event.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
ANALYSIS
In this case, OWCP denied appellant’s claim because it determined that the workplace
exposure had not occurred as described. By letter dated February 3, 2015, it informed him of the
evidence needed to support his claim. OWCP also asked appellant to address whether he had
previously filed a similar claim. Finally, it asked appellant to describe all previous ear or hearing
problems.
OWCP received appellant’s personnel records and a report from a January 7, 2015
audiology examination. However, appellant did not submit a factual statement responding to the
February 3, 2015 requests for information. He did not identify the source of his hazardous noise
exposure. This is especially important because appellant had filed a claim for hearing loss on
June 5, 1994. The claim was denied on December 9, 1994. Appellant did not explain whether
he had a subsequent noise exposure, which he claimed caused his alleged hearing loss. Without
the requested factual information, he has not provided sufficient documentation to support his
claim. The Board finds that the evidence does not establish hearing loss.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish bilateral
hearing loss and tinnitus causally related to his federal employment.
4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 5, 2015
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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