United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, LOUDON POST
OFFICE, Loudon, TN, Employer
__________________________________________

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

Docket No. 21-0939
Issued: November 22, 2021

Case Submitted on the Record

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

JURISDICTION
On June 8, 2021 appellant filed a timely appeal from January 14 and May 3, 2021 merit
decisions and a March 3, 2021 nonmerit 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 has met her burden of proof to establish a medical
condition causally related to the accepted November 28, 2017 employment incident; and
(2) whether OWCP properly denied appellant’s request for an oral hearing as untimely filed
pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 28, 2017 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she strained the right side of her lower back when
loading a vehicle while in the performance of duty. She stopped work on November 28, 2017.
Appellant was treated in the emergency department on November 28, 2017 by Brandon
Brooks, a physician assistant, who diagnosed acute myofascial lumbar strain and provided
discharge instructions for muscle spasm. An x-ray of the lumbar spine of even date revealed mild
degenerative disc disease and moderate hypertrophic facet arthropathy.
On December 1, 2017 appellant was treated by Deserie Cook, a physician assistant, for
lumbar pain she attributed to a work injury on November 28, 2017. She reported injuring her back
while lifting mail at work. Ms. Cook diagnosed low back pain, pain in the right leg, and cervicalgia
and released appellant to work with restrictions.
Dr. Eric Poston, a Board-certified internist, treated appellant on August 4, September 3,
and October 5, 2020 and excused her from work on August 4 and September 20 through
October 5, 2020. Similarly, appellant was treated by Dr. David H. Hauge, a Board-certified
neurosurgeon, on September 29, 2020, who excused her from work from September 29 through
October 5, 2020. On October 12, 2020 he excused appellant from work until her next scheduled
reevaluation on November 2, 2020.
In a November 4, 2020 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence required and provided
a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
In reports dated October 12 and November 6, 2020, Dr. Hauge treated appellant in followup examinations for low back pain radiating into the lateral aspect of the right leg associated with
L3-4 and L4-5 extraforaminal disc herniations. He reviewed magnetic resonance imaging (MRI)
scans of the lumbar spine dated January 29 and August 24, 2018. An MRI scan of the lumbar
spine dated September 15, 2020 revealed moderate-to-severe spinal stenosis at L4-5, severe facet
irritation at L4-5, right lateral disc protrusion at L3-4 and L4-5, and foraminal component at L45, which may impinge upon the exiting L4 nerve root. The scan was noted as unchanged from the
August 2018 MRI scan study. An MRI scan of the cervical spine of even date revealed mild
degenerative changes most notably on the right C4-5 and C5-6. Dr. Hauge diagnosed lumbar disc
herniation with radiculopathy. He noted conservative measures failed and recommended right L34 and L4-5 transpedicular discectomies. On December 11, 2020 Sean Blanton, a physician
assistant, treated appellant one week status post right L3-4, L4-5 decompression/discectomy and
reported that appellant was progressing well. In a work excuse note of even date, Dr. Hauge noted
that appellant was off work until her next reevaluation on February 9, 2021.
Appellant was treated by Dr. Poston on November 4, 2020 who excused her from work
from November 3 through December 3, 2020.
In a January 5, 2021 duty status report (Form CA-17), Dr. Hauge noted clinical findings of
residual axial soreness and diagnosed lumbar disc herniation. Dr. Hauge noted that appellant could

2

return to work with restrictions on January 6, 2021. In a work excuse note of even date, appellant
returned appellant to work with restrictions on January 6, 2021.
By decision dated January 14, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between her diagnosed conditions and the accepted November 28, 2017 employment incident.
On February 16, 2021 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated March 3, 2021, OWCP denied appellant’s request for an oral hearing as
untimely filed, finding that her request was not made within 30 days of the January 14, 2021
OWCP decision as it was received on February 16, 2021. It further exercised discretion and
determined that the issue in this case could equally well be addressed by a request for
reconsideration before OWCP along with the submission of new evidence.
OWCP received additional evidence. Dr. Poston treated appellant on July 25, 2017 for a
gradual onset of radiating lumbar back pain occurring six to eight weeks prior to the office visit.
An x-ray of the lumbar spine revealed mild left convex scoliotic curvature and minimal
degenerated disc changes.
Emergency department notes dated November 28, 2017 signed by Mr. Brooks, a physician
assistant, indicate appellant was treated for an acute onset of low back pain that occurred four
hours prior. Appellant reported lifting mail trays into her vehicle when she twisted to set the trays
down and felt a sharp pain in her lower right back. She indicated that she had not experienced
similar symptoms in the past. He diagnosed acute myofascial lumbar strain.
Dr. Poston treated appellant in follow-up on January 22 and February 5, 2018 for chronic
lumbar pain with associated radiation to the posterior thighs bilaterally. He noted findings on
examination of lumbar spasm. A recent MRI scan of the lumbar spine revealed facet arthropathy
and moderate-to-severe lumbar spinal stenosis.2 Dr. Poston diagnosed lumbar degenerative disc
disease, lumbar spinal stenosis, radiculopathy, hyperlipidemia, and obesity.
On February 27 and May 29, 2018 appellant underwent transforaminal epidural steroid
injections.3
In an October 22, 2019 report, Dr. Poston treated appellant for a four- or five-day history
of lumbar pain radiating into the posterior thighs. He diagnosed lumbar pain , spinal stenosis,
radiculopathy, hypertension, hyperlipidemia, and depression. In an October 30, 2019 report,
Dr. Poston evaluated appellant for improving lumbar pain. He diagnosed hypertension, lumbar
2
An MRI scan of the lumbar spine dated January 29, 2018 revealed moderate-to-high grade central canal stenosis
and moderate right and mild left neural foraminal narrowing at L4-5 due to broad posterior disc bulge and bilateral
facet arthropathy, moderate central canal stenosis and mild bilateral neural foraminal narrowing at L3-4 due to a mild
annular disc bulge and bilateral facet arthropathy, minor annular disc bulge at L2 -3, and diffuse lumbar facet
arthropathy at L3-4 and L4-5.
3

The healthcare provider was not identified.

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pain, spinal stenosis, and hyperlipidemia. Dr. Poston continued work restrictions of no lifting over
35 pounds.
Dr. Poston related in a September 3, 2020 progress report that appellant was still having
lumbar and cervical pain associated with tingling in her hands. He diagnosed cervical
radiculopathy, lumbar spinal stenosis, worsening back pain, right leg weakness, and elevated blood
pressure due to pain. An x-ray of the lumbar spine dated September 3, 2020 revealed mild
degenerative disc disease and moderate facet arthropathy. On September 28, 2020 Dr. Poston
noted a September 15, 2020 MRI scan of the cervical spine revealed disc/osteophyte complex at
C4-6 with foraminal narrowing and an MRI scan of the lumbar spine revealed disc osteophyte
complex at L3-5 with associated foraminal narrowing/spinal canal stenosis. He diagnosed
hypertension, cervical and lumbar degenerative disc disease, radiculopathy, and hyperlipidemia.
Appellant was seen again on September 29, 2020 with cervical and right lumbar pain that began
after squatting outside the prior day. Dr. Poston noted severe lumbar spasm and diagnosed lumbar
spasm, strain, degenerative disc disease, spinal stenosis, hypertension, and hyperlipidemia. He
continued to treat appellant on October 5 and November 4, 2020 for persistent lumbar pain and
lumbar spasm radiating to the posterior thighs. Dr. Poston diagnosed chronic lumbar pain,
degenerative disc disease, spinal stenosis, and hypertension.
On March 16, 2021 appellant requested reconsideration.
By decision dated May 3, 2021, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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
limitation of FECA, 5 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. 6 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. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the

4

Supra note 1.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury. 8
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 28, 2017 employment incident.
Dr. Poston treated appellant on August 4, September 3, October 5, and November 4, 2020
and excused her from work on August 4 and from September 20 through December 3, 2020. On
September 29, October 12, 2020, and January 5, 2021 Dr. Hauge treated appellant and excused
her from work for the period beginning September 29 through February 9, 2021. However,
Drs. Poston and Hauge did not offer an opinion on causal relationship. As the Board has held,
medical evidence that does not offer an opinion regarding the cause of an employee ’s condition or
disability is of no probative value on the issue of causal relationship.11 Thus, the Board finds that
these reports are insufficient to meet appellant’s burden of proof.
Dr. Poston treated appellant from January 22, 2018 through November 4, 2020 for chronic
lumbar and cervical pain with associated radiation to the posterior thighs bilaterally and tingling
in her hands. He diagnosed cervical and lumbar degenerative disc disease, radiculopathy, lumbar
spinal stenosis, worsening back pain, right leg weakness, hyperlipidemia, and obesity. Likewise,
in reports dated October 12 and November 6, 2020, Dr. Hauge treated appellant for low back pain
radiating into the lateral aspect of the right leg associated with L3-4 and L4-5 extraforaminal disc
herniations. He diagnosed lumbar disc herniation with radiculopathy and performed a right L3 -4,
L4-5 decompression/discectomy. However, Drs. Poston and Hauge did not specifically relate the
diagnosed conditions to the accepted November 28, 2017 employment incident. As stated above,
the Board has held that medical evidence that does not offer an opinion regarding the cause of a
diagnosed condition or disability is of no probative value on the issue of causal relationship. 12
Therefore, the Board finds that these reports are insufficient to meet appellant’s burden of proof.

8

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

Id.

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Other reports from Dr. Poston dated July 25, 2017 are of no probative value in establishing
the claimed conditions since they predate the time of the claimed condition of
November 28, 2017.13
Appellant submitted reports from physician assistants. However, certain healthcare
providers such as physician assistants 14 are not considered “physician[s]” as defined under
FECA.15 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.16
Appellant submitted multiple diagnostic testing reports. The Board has held that diagnostic
studies, standing alone, are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions. 17
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s diagnosed low back condition and the accepted November 28, 2017 employment
incident, the Board finds that appellant has not met her 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(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”18
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 19 A claimant is entitled to a hearing or review of the written record
13

See generally, T.G., Docket No. 17-17445 (issued February 5, 2018); R.G., Docket No. 16-0271 (issued
May 18, 2017).
14

C.P., Docket No. 19-1716 (issued March 11, 2020) (a physician assistant is not a physician as defined under
FECA).
15
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners
are not considered physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such
as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
16

Id.

17

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

18

5 U.S.C. § 8124(b)(1).

19

20 C.F.R. §§ 10.616, 10.617.

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as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 20
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS – ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which a review is sought. 21 Because appellant’s hearing request
was received February 16, 2021, it post-dated OWCP’s January 14, 2021 decision by more than
30 days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a
matter of right. 22
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 23 The Board finds that, in the March 3, 2021 decision, OWCP properly exercised
its discretion by determining that the issue in the case could be equally well addressed through a
request for reconsideration before OWCP, along with the submission of additional evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.24 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely
filed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 28, 2017 employment incident. The Board
further finds that OWCP properly denied her request for an oral hearing as untimely filed pursuant
to 5 U.S.C. § 8124.

20

Id. at § 10.616(a).

21

Supra note 21; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.4(a) (September 2020).
22

See P.C., Docket No. 19-1003 (issued December 4, 2019).

23

Id.

24

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 3, March 3, and January 14, 2021 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 08-726
Issued: August 26, 2008

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 January 14, 2008 appellant filed a timely appeal of a November 30, 2007 decision of
the Office of Workers’ Compensation Programs that affirmed, as modified, the denial of her
claim for an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this emotional condition case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On March 10, 2007 appellant, then a 42-year-old sales services associate, filed an
occupational disease claim, alleging that she experienced stress in the course of her federal
employment. She first became aware of the condition and of its relationship to her employment
on January 23, 2007. Appellant stopped work on February 15, 2007.

Appellant submitted a March 9, 2007 report from Dr. Marcellus R. Cephas, a Boardcertified psychiatrist and neurologist, who noted that she had significant symptoms of
depression, which she alleged were caused by stress at work. Dr. Cephas advised that stress
appeared “to be the precipitating factor of her condition.” He recommended psychotherapy and
medication management on a regular basis.
By letter dated April 27, 2007, the Office informed appellant of the evidence needed to
support her claim and requested that she submit additional evidence within 30 days.
In a letter dated May 9, 2007, appellant alleged that her emotional condition was caused
by several incidents. On August 2, 2006 she attended mediation related to an Equal Employment
Opportunity (EEO) complaint of discrimination. Appellant stated that she filed the complaint
because she was placed in a position that she was not prepared for and which did not conform
with her disability.1 She noted that the employing establishment settled her claim in
consideration for her withdrawal of her EEO complaint and agreed that she would be properly
equipped to perform her duties and provided with a uniform. On October 23, 2006 appellant met
with her supervisor about a position for which she was not selected that had identical duties but
different hours.2 She provided a copy of the position that indicated that her duties included
window qualifications. Appellant asserted that on November 27, 2006 she failed an evaluation
for not having a uniform. A resolution was subsequently reached in which she would be placed
in a new position on December 9, 2006; however, she indicated that she was not placed in the
new position.3 On December 11, 2006 appellant smelled a dead rodent at her workstation and
despite asking for its removal it was not removed and she had to work in the pungent area. She
alleged that the smell caused headaches and that she eventually had to file an unsafe condition
complaint.4 Appellant alleged that she was forced to work alone on January 10, 2007 because a
coworker was preparing for a supervisors examination. She noted that her computer had to be
rebooted and there was a line of impatient customers and she left work with a migraine
headache. Appellant was sick when she left work on January 12, 2007 and Terri Taylor, a
manager, informed her that she would not be paid. She received letters dated March 19 and 27,
2007 from management concerning her use of leave and provided copies. Appellant alleged that
her supervisor had a conflict with her sibling and became indifferent towards her as a result. She
asserted that she was denied the use of donated leave by her supervisor and placed on leave
without pay. Appellant indicated that her physician attempted to fax information to the
employing establishment on May 1, 2007; however, the fax machines did not have cartridges on
them.
In a June 23, 2006 letter, Deitrice Willard-Ruffin, the postmaster, advised appellant that
she had failed to submit a bid for previously posted clerk positions and that she was being
1

Appellant stated that she was placed in a permanent rehabilitation position since June 2004 as a result of a
physical disability and provided copies of letters pertaining to her bid position.
2

Appellant provided a copy of an EEO complaint and correspondence regarding to the incident.

3

Appellant provided a copy of her complaint regarding a violation of mediation settlement agreement and
resolution.
4

Appellant provided a copy of the complaint that she filed related to the rodent.

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assigned to the “AR-05” position pending qualifications. Appellant was also advised to submit
updated medical information regarding her current work restrictions. A copy of an
August 3, 2006 settlement agreement indicated that, in consideration of appellant withdrawing
her EEO complaint, the employing establishment agreed to provide her with a uniform allowance
(in consultation with appellant), appropriate seating with a back support and revise her work
schedule to 10:15 a.m. to 7:15 p.m. with Sundays and Thursdays off. The agreement was
without prejudice to either party. A December 14, 2006 e-mail from the employing
establishment advised that it would take about four weeks for appellant to receive her uniform
card. Appellant provided a copy of a December 28, 2006 statement related to her bid for an
assignment in October 2006 and her not being placed in the position. The Office also received
March 19 and 27, 2007 letters from the employing establishment advising appellant that she was
in an absent without leave status and that additional documentation was required.
By decision dated August 24, 2007, the Office denied appellant’s claim finding the
evidence insufficient to establish that the alleged events occurred as alleged.
On August 29, 2007 appellant requested reconsideration. On September 6, 2007 the
Office received a report from Dr. Deborah Rollins, a Board-certified internist, who noted that
appellant presented on January 15, 2007 with complaints of diarrhea, psychosomatic complaints
before going to work, including a feeling of doom, palpitations and crying episodes. Dr. Rollins
noted that appellant was referred for psychotherapy and psychiatric treatment. In a May 24,
2007 report, Dr. Cephas5 noted that appellant was under his care for major depressive disorder
since February 8, 2007. He advised that her current symptoms included decreased energy,
depressed mood (tearfulness), irritability, anxiety, insomnia and poor concentration. Dr. Cephas
opined that appellant’s condition was most likely “caused by the stressful events that transpired
in her work environment.” He added that the “constant pressure that she was put under and the
conflict that this generated with management caused a great deal of anxiety.” The Office also
received a report from a physician’s assistant.
Appellant submitted documents related to a grievance that she filed for a bid position. A
November 22, 2006 grievance resolution indicated that she would be placed in the bid position at
issue, effective December 2, 2006. The parties agreed that the resolution was nonprecedential
and neither party would cite the resolution in any other proceeding. Appellant also included a
June 11, 2007 letter from the employing establishment closing the grievance.
By decision dated November 30, 2007, the Office affirmed the August 23, 2007 decision
as modified to find that appellant did not establish incidents which occurred in the performance
of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
5

His credentials were not listed.

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to her regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.6 On the
other hand the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or her frustration from not being permitted to work in a particular
environment or to hold a particular position.7
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents. The Board must initially review whether the alleged incidents of
employment are compensable under the terms of the Act.
The Board notes that appellant made several allegations related to administrative or
personnel matters. These allegations are unrelated to the employee’s regular or specially
assigned work duties and do not generally fall within the coverage of the Act.12 However, the
Board has also found that an administrative or personnel matter will be considered to be an
6

5 U.S.C. §§ 8101-8193.

7

See Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
8

Pamela R. Rice, 38 ECAB 838, 841 (1987).

9

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11

Id.

12

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB 450 (1999).

4

employment factor where the evidence discloses error or abuse. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether management
acted reasonably.13
Among the administrative matters alleged by appellant were assertions regarding her sick
leave, leave without pay, denial of leave and donated leave.14 The denial of leave due to
operational needs is a discretionary matter. Additionally, appellant has not shown that her
requests for leave were denied. The record contains letters from the employing establishment
dated March 19 and 27, 2007, which advised her that she was in an absent without leave status
and that additional documentation was required. There is no indication that her leave was
denied. Appellant has not submitted sufficient evidence to establish error or abuse by
management in matters involving her leave.
Appellant also alleged that she was not provided with a uniform. However, the record
contains a December 14, 2006 e-mail from the employing establishment indicating that it would
take approximately four weeks for her to receive her uniform card. This matter was grieved and
a settlement agreement dated August 3, 2006 reveals that appellant withdrew her EEO complaint
in consideration of several factors, including that she be provided with a uniform allowance.15
Appellant has not established that the employing establishment acted unreasonably in this matter.
Appellant alleged that she was not placed in a bid assignment, contending that she was
the sole bidder and qualified for the position. The Board has held that denials by an employing
establishment of a request for a different job, promotion or transfer are not compensable factors
of employment as they do not involve the employee’s ability to perform his or her regular or
specially assigned work duties but rather constitute the employee’s desire to work in a different
position.16 On June 23, 2006 the postmaster advised appellant that she had failed to submit a bid
for a previously posted clerk position. In the absence of error of abuse, the handling of the
personnel matters such as offering an employee a certain position is an administrative function of
the employer and not a duty of the employee.17 Furthermore, a settlement was entered into
regarding the position she was seeking.18 There is no evidence from appellant to show that this
action by management was unreasonable. To the extent that she contends that this matter
involved discrimination, she has not submitted sufficient evidence to establish that
discrimination occurred. Mere perceptions and feelings of harassment or discrimination will not
13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006) (actions of the employing establishment
in matters involving the use of leave are generally not considered compensable factors of employment as they are
administrative functions of the employer and not duties of the employee).
15

The settlement did not assess any error on the part of any party to the complaint. Grievances and EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment occurred. C.S., 58
ECAB ___ (Docket No. 06-1583, issued November 6, 2006).
16

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

17

David S. Gilreath, 56 ECAB 241 (2005).

18

The settlement did not assess any error on the part of any party to the complaint. See supra note 15.

5

support an award of compensation. The claimant must establish such allegations with probative
and reliable evidence.19 Appellant submitted no evidence other than an EEO complaint
resolution, for which neither party was assessed error, to substantiate her perception. The Board
finds that there is insufficient evidence to establish appellant’s allegation of discrimination as
factual.
Appellant did not submit any factual evidence supporting her allegation that she was
required to work in an area with a dead rodent or sent home without pay. While she provided a
copy of her complaint related to a rodent, her allegations done do not establish the fact that she
worked in an area with a foul odor. Further, the Board notes that her physician’s inability to fax
a record to the employing establishment is unrelated to the requirements of her position and does
not establish abuse or error on the part of the employing establishment. Thus, appellant has not
established a compensable factor in this regard.
Appellant also alleged that she was treated differently due to a supervisor’s conflict with
her sibling. She has not established this allegation as a compensable employment factor.
Appellant has not identified any specific dates, individuals or any provided any specific details to
show that she was treated differently. Furthermore, she alleged that she perceived that she was
treated differently. A claimant’s own feeling or perception that a form of criticism by or
disagreement with a supervisor is unjustified, inconvenient or embarrassing is self-generated and
does not give rise to coverage under the Act absent evidence that the interaction was, in fact,
erroneous or abusive. This principle recognizes that a supervisor or manager must be allowed to
perform his or her duties and that, in performing such duties, employees will at times dislike the
actions taken.20 Thus, appellant has not established a compensable factor in this regard.
Regarding appellant’s allegation that she was forced to work alone because a coworker
was studying for a management examination and that she had to reboot her computer while
impatient customers were waiting, the Board has held that emotional reactions to situations in
which an employee is trying to meet her position requirements maybe compensable.21 In Antal,
a tax examiner filed a claim alleging that her emotional condition was caused by the pressures of
trying to meet the production standards of his job. The Board, citing the principles of Cutler,
found that the claimant was entitled to compensation. In Kennedy, the Board, also citing the
principles of Cutler, listed employment factors which would be covered under the Act, including
an unusually heavy workload and imposition of unreasonable deadlines. However, appellant’s
allegation that she was forced to work alone is not corroborated by the evidence of record. She
has not submitted any evidence other than a position description, which provides that she would
have window duties, to show that working the window by herself would be unreasonable. There
is no indication that appellant was to only work with others or that she could not work by herself.
She did not address any particular duty which she performed while working alone as causing her
claimed condition. Appellant has not factually corroborated her allegations by the evidence of
record.
19

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

20

See Michael A. Deas, 53 ECAB 208 (2001).

21

See Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984); Joseph A. Antal, 34 ECAB 608, 612 (1983).

6

As appellant has not established a compensable employment factor, it is not necessary to
address the medical evidence.22
CONCLUSION
For the foregoing reasons, as appellant has not established any compensable employment
factors under the Act, she has not met her burden of proof in establishing that she sustained an
emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2008
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

22

Garry M. Carlo, 47 ECAB 299 (1996); see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1704
Issued: February 4, 2016

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 August 10, 2015 appellant filed a timely appeal from a July 29, 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 501.3,2 the Board has
jurisdiction over the merits of the case.3

1

5 U.S.C. § 8101 et seq.

2

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).
3

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated November 17, 2015, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying
Request for Oral Argument, Docket No. 15-1704 (issued November 17, 2015). The Board’s Rules of Procedure
provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a decision
based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $47,986.96 for the period September 6, 2013 through January 10, 2015 because she
continued to receive FECA compensation after she returned to work; and (2) whether OWCP
properly found her at fault and thus not entitled to waiver of recovery of the overpayment.
On appeal appellant asserts that she is entitled to waiver of recovery of the overpayment
because the creation of the overpayment was not her fault.
FACTUAL HISTORY
On September 13, 1993 appellant, then a 33-year-old carrier tech, filed a Form CA-1,
traumatic injury claim, alleging that she injured her right shoulder on September 11, 1993 when
she fell down steps while delivering mail. The claim was adjudicated by OWCP under file
number xxxxxx914, and right shoulder contusion and rotator cuff tenderness were accepted. A
February 11, 2000 injury, adjudicated by OWCP under file number xxxxxx935, was accepted for
left forearm sprain and left wrist tendinitis. A March 2, 2001 injury, adjudicated by OWCP
under file number xxxxxx648, was accepted for right shoulder and cervical sprain. The claims
were combined with case file number xxxxxx935, serving as the master file. Tenosynovitis of
the left hand and wrist and displacement of cervical intervertebral disc without myelopathy were
also accepted. Under file number xxxxxx914, on January 29, 1996 appellant was granted a
schedule award for 14 percent permanent impairment of the right shoulder.
Following the February 11, 2000 employment injury, appellant worked limited duty. She
stopped work following the March 2, 2001 employment injury. On September 24, 2001
Dr. Joseph K. Jamaris, a Board-certified neurosurgeon, performed cervical discectomy and
decompression. Appellant was placed on the periodic compensation rolls.
In a March 17, 2004 decision, OWCP terminated appellant’s compensation in accordance
with section 8106(c) of FECA. In a March 26, 2014 decision, it reduced her compensation to
zero based on her actual earnings in a modified sales and distribution position. Following a
June 24, 2004 reconsideration request, by decision dated June 30, 2004, OWCP vacated the
March 17 and 26, 2004 decisions. It found the March 17, 2004 decision in error because
appellant had accepted an offered position, and found the March 26, 2004 decision premature
because her condition worsened such that she could no longer work as of April 20, 2004. On
July 12, 2004 Dr. Jamaris performed a second cervical discectomy and fusion. Appellant
received appropriate compensation and was returned to the periodic compensation rolls.
On September 6, 2013 appellant accepted a full-time modified city carrier position,
effective September 9, 2013. A notice of change in health benefits, transferring coverage to the
employing establishment, was effective September 9, 2013. On an OWCP EN1032 form, signed
by appellant on February 11, 2014, she reported that she had returned to work on
September 7, 2013. Appellant telephoned OWCP on September 8, 2014 and reported that she

2

had returned to work effective September 6, 2013.4 On an EN1032 form, signed by appellant on
December 11, 2014, she reported that she had returned to work on September 6, 2013.
On January 28, 2015 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $47,986.96 had been created. It explained that the overpayment
was created because appellant had returned to full-time work on September 6, 2013 and
continued to receive FECA wage-loss compensation through January 10, 2015. OWCP found
her at fault because she had accepted a payment that she knew or reasonably should have known
was incorrect. The preliminary overpayment determination provided an explanation of the
calculation of the overpayment. Appellant was provided an overpayment action request and an
overpayment questionnaire (Form CA-20). She was informed of the actions she could take and
was allotted 30 days to respond. An overpayment memorandum indicated that appellant
received FECA compensation totaling $47,986.96 for the period September 6, 2013 to
January 10, 2015.
Appellant timely requested a prerecoupment hearing before an OWCP hearing
representative. In correspondence dated February 24, 2015, she maintained that the overpayment
occurred through no fault of hers and requested waiver of recovery. Appellant asserted that she
had returned to work on Monday, September 9, 2013, not September 6, 2013, and that she called
OWCP on several occasions and left messages to notify them that she had returned to work. She
submitted a completed overpayment recovery questionnaire in which she listed monthly income
of $5,895.06 and expenses totaling $7,930.00. In March 2015, appellant repaid $20,000.00 of
the overpayment.
At the hearing held on May 14, 2015, appellant testified that she called OWCP on
multiple occasions to report that she had returned to work. She noted that she had repaid
$20,000.00 and had used FECA compensation for “shortfalls,” such as when mold was
discovered in her home. Appellant was given 30 days to submit supportive financial
information.
By decision dated July 29, 2015, an OWCP hearing representative finalized the
preliminary determination that appellant was at fault in the creation of an overpayment of
compensation in the amount of $47,986.96 for the period September 6, 2013 through
January 10, 2015. She noted that appellant submitted nothing further after the hearing. The
hearing representative found appellant at fault because she clearly accepted, and subsequently
spent funds that she knew she was not entitled to receive and was thus not entitled to waiver of
recovery of the overpayment. She found the overpayment due in full, noting that appellant was
no longer receiving wage-loss compensation.

4

On September 15, 2014 appellant’s file was transferred from the Washington, DC district office to the
Philadelphia, PA district office.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.6 Section 10.500 of OWCP’s regulations provide that “compensation for
wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.”7
ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation was created because appellant
continued to receive FECA wage-loss compensation after she returned to work from
September 2013 through January 10, 2015. As noted, both FECA and implementing regulations
of OWCP provide that a claimant may not receive wage-loss compensation concurrently with a
federal salary or other remuneration.8 An overpayment of compensation was therefore created.9
The Board, however, finds the case is not in posture for decision regarding the amount of
the overpayment. The job offer accepted by appellant on September 6, 2013 indicated that the
position was available on September 9, 2013. An overpayment worksheet indicated that
appellant returned to full-time work on September 6, 2013. EN1032 forms signed by appellant
on February 11 and December 11, 2004 indicated that she had returned to work on September 6
and 7, 2013 respectively. A notice of change in health benefits transferred appellant’s health
insurance to the employer effective September 9, 2013. Thus, as the record contains conflicting
information regarding the actual date appellant returned to work, the Board does not have
sufficient evidence to permit an informed adjudication regarding the amount of the overpayment.
The case will therefore be remanded to OWCP to obtain information from the employing
establishment regarding exactly when appellant returned to pay status. OWCP should then issue
a de novo decision regarding the amount of overpayment.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

7

20 C.F.R. § 10.500.

8

5 U.S.C. § 8116(a); supra note 7.

9

Id.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits.... A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”11
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.12
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled.13
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment because she knew or
should have reasonably known that she was not entitled to receive wage-loss compensation after
she returned to work in early September 2013. The record indicates that appellant continued to
receive FECA compensation until January 10, 2015.

10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

12

20 C.F.R. 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

13

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

5

Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper14 and the recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits.15 In an April 24, 2001 letter, found in file number xxxxxx648 claim, OWCP
notified appellant that her claim was accepted, OWCP clearly advised her that she was to
immediately inform OWCP upon her return to work to avoid an overpayment in compensation
and that, if she worked during any period covered by a compensation payment, she had to return
the payment to OWCP.
Thus, appellant should have known that she could not receive wage-loss compensation
after her return to work.16 Although she maintained that she called OWCP on several occasions,
she did not return the compensation she received over the 16-month period.
The Board therefore finds that appellant should have known that, at the time she returned
to work, she was not entitled to continue to receive compensation and had an obligation to return
payments she knew or should have known were incorrect.17 Under section 10.433(a) of OWCP’s
regulations, appellant is at fault. As she was at fault in creating the overpayment, appellant is not
eligible for waiver of recovery of the overpayment in compensation.18
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.19 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.20
CONCLUSION
The Board finds that appellant received an overpayment of compensation because she
continued to receive compensation after her return to work in September 2013 until January 10,
2015, and that OWCP properly found her at fault and thus, she was not entitled to waiver of
recovery of the overpayment. The Board, however, finds the case not in posture for decision
regarding the amount of the overpayment because the record is unclear regarding the exact date
appellant returned to work in September 2013.

14

Danny E. Haley, supra note 6.

15

Sinclair L. Taylor, supra note 11.

16

Neill D. Dewald, supra note 12.

17

Id.

18

Id.

19

Cheryl Thomas, 55 ECAB 610 (2004).

20

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
returned to OWCP for proceedings consistent with this opinion of the Board.
Issued: February 4, 2016
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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Alexandria, VA, Employer
)
__________________________________________ )
L.N., Appellant

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

Docket No. 11-936
Issued: November 9, 2011

Case Submitted on the Record

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

JURISDICTION
On March 4, 2011 appellant, through his attorney, filed a timely appeal from a
January 12, 2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision which
denied his claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
knee condition in the performance of duty causally related to factors of his federal employment.
On appeal, appellant’s attorney contends that the January 12, 2011 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 13, 2008 appellant, then a 47-year-old deputy marshal, filed an occupational
disease claim (Form CA-2) alleging that he developed degenerative knee conditions and a torn
meniscus which he attributed to factors of his federal employment. A physician suggested that it
was caused by his physical work requirements.
By letter dated May 10, 2010, OWCP requested additional evidence from appellant to
support his claim and allotted 30 days for submission.
In a May 19, 2010 letter to OWCP, the employing establishment stated that appellant’s
job requirements included lifting, pushing, pulling, bending and stooping. It noted that a deputy
marshal must maintain a level of fitness and that he was an active participant in a fitness program
(FIT) and was allowed up to three work hours a week to maintain his fitness level. The
employing establishment attached a position description and a copy of its fitness directive.
On June 2, 2010 appellant’s attorney requested a 30-day extension for his physician to
submit medical evidence in support of the claim.
On June 7, 2010 OWCP granted appellant’s request for an additional 30 days to submit
medical evidence.
By decision dated July 15, 2010, OWCP denied appellant’s claim on the grounds that the
medical evidence submitted did not establish a firm diagnosis causally related to the implicated
employment factors.
On July 26, 2010 appellant’s attorney requested an oral telephone hearing before
OWCP’s hearing representative and submitted additional evidence.
In a February 13, 2008 note, Dr. Clifford H. Turen, a Board-certified orthopedic surgeon,
advised that he saw appellant for left knee pain. He did not list an employment history or date of
examination. Dr. Turen found joint line tenderness, a positive Apley Grind test and a positive
McMurray’s sign. He reported that an undated magnetic resonance imaging (MRI) scan revealed
a tear of the medial meniscus. Dr. Turen stated that it was not uncommon for a patient to feel
additional secondary pain from degenerative changes after an arthroscopy, which appellant
underwent, once the primary cause of the pain in the knee is removed. He opined that it was
without question that appellant’s torn meniscus and degenerative changes were from
“long[-]standing physical use” which was in line with the conditioning requirements of his
federal employment.
Appellant also submitted a narrative statement and a document listing workers’
compensation benefits for FIT-related injuries and approved activities.
On November 3, 2010 an oral telephone hearing was held before OWCP’s hearing
representative. Appellant testified that he injured his left knee while running on the road in the
course of his federal employment. For the past 22 years, he had been running in order to fulfill
his job’s fitness requirement. On November 6, 2006 appellant injured his left knee collateral
ligament while he was jogging in his neighborhood and underwent surgery in May 2007. He
2

returned to work and on August 7, 2007, tore his left meniscus again while running on a
treadmill in the employing establishment gym. Appellant had a second knee surgery in
January 2008 and returned to work. Neither of these traumatic injury claims was accepted by
OWCP. Appellant claimed 600 hours of wage-loss compensation for the time lost due to his two
left knee surgeries. OWCP’s hearing representative granted appellant’s request to hold the
record open for 30 days for the submission of additional evidence. None was received.
By decision dated January 12, 2011, OWCP’s hearing representative affirmed the
July 15, 2010 decision. He found that while it was accepted that the extensive running
performed by appellant was incurred in the performance of his federal duties, the medical
evidence submitted was not sufficient to establish a causally-related left knee condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (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 employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors.6 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

5

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See D.N., Docket No. 10-1762 (issued May 10, 2011).

3

supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.7
ANALYSIS
The Board finds that appellant has failed to establish that he developed a degenerative
knee condition in the performance of duty. The record reflects that appellant has a torn meniscus
and degenerative changes of the left knee. Appellant’s federal employment required lifting,
pushing, pulling, bending and stooping and a physical fitness level which he maintained by
extensive running. He has not established that the torn meniscus or degenerative changes of the
left knee are causally related to these factors of his federal employment.
In a February 13, 2008 report, Dr. Turen reported that an MRI scan revealed a tear of the
medial meniscus. He opined that it was without question that appellant’s torn meniscus and
degenerative changes were from “long[-]standing physical use” which was in line with
conditioning requirements of his federal employment. Dr. Turen did not provide a rationalized
medical opinion explaining how specific factors of appellant’s federal employment, such as
lifting, pushing, pulling, bending, stooping, extensive running, caused or aggravated his left knee
condition or how his condition arose. Moreover he did not present a history of appellant’s
medical treatment for his left knee or dates of examination. The Board has held that the mere
fact that appellant’s symptoms arise during a period of employment or produce symptoms
revelatory of an underlying condition does not establish a causal relationship between his
condition and his employment factors.8 Lacking thorough medical rationale on the issue of
causal relationship, the medical report of Dr. Turen is insufficient to establish that appellant
sustained an employment-related injury.
Appellant has not submitted sufficient rationalized medical evidence to support his claim
that he sustained a left knee condition causally related to the implicated employment factors.
The Board finds that he failed to meet his burden of proof to establish a claim for compensation.
On appeal, appellant’s attorney contends that the January 12, 2011 OWCP decision is
contrary to fact and law. For the reasons stated above, the Board finds the attorney’s argument is
not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed a left knee condition in the performance of duty causally related to factors of his
federal employment.
7

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

8

Id. See also Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, SAINT LOUIS NDC,
Hazelwood, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1268
Issued: December 10, 2015

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 May 19, 2015 appellant filed a timely appeal of a February 17, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a consequential left
ankle condition, lymphedema, and a right knee condition due to her accepted December 3, 2011
employment injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with her appeal to the Board and following the
February 17, 2015 decision. However, the Board may only review evidence that was in the record at the time
OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23,
2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005);
Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant argues that the evidence establishes her consequential injury claim.3
FACTUAL HISTORY
On December 3, 2011 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that day she sustained left hip and knee conditions due to
twisting her left leg in the performance of duty. OWCP accepted the claim for left lower leg
joint effusion, left lateral collateral ligament knee sprain, and left lateral meniscal knee tear and
authorized left knee arthroscopic surgery, which was performed on October 16, 2012.4
On January 13, 2013 appellant requested that OWCP expand her claim to include
additional conditions as consequential injuries from her accepted left knee injury. She believed
that she sustained irreversible injuries to her right knee and left ankle as the result of her
accepted left knee employment injuries. With respect to the initial accepted left knee strain in
February 2003, appellant contended that she had not received proper treatment for that injury and
as a result her left leg and knee continued to hurt and swell daily. Next, she related that her left
knee had been repeatedly injured since February 2003 as she had fallen down due to the knee
giving out, from moving the wrong way, and from performing her job duties. When she injured
her left knee on December 3, 2011, appellant went to physical therapy every day for
approximately seven months and her knee continued to swell up and cause extreme pain. On
December 14, 2012 she returned to work and her left leg and knee immediately swelled.
Appellant stated that there was swelling and tremendous pain in both knees and her left ankle.
As a result of the left knee surgery due to her December 3, 2011 injury, there was more strain on
appellant’s right knee and left ankle. In concluding, appellant alleged that the left knee injury
resulted in consequential right knee and left ankle injuries including the loss of strength.
In an April 18, 2013 attending physician’s report (Form CA-20), Dr. Jody T. Jachna, an
attending Board-certified orthopedic surgeon, noted a February 2003 injury date. He diagnosed
right knee degenerative joint disease, left ankle swelling, and left knee post meniscectomy, and
degenerative joint disease. Dr. Jachna checked a box marked “yes” to the question of whether
the diagnosed conditions were employment related. He opined that appellant’s right knee and
left ankle conditions were consequential injuries of the accepted left knee injury.

3

Appellant also requested a review of her schedule award claim. OWCP granted a schedule award for three
percent left lower extremity permanent impairment on August 22, 2013 and it denied her request for reconsideration
in a nonmerit decision dated October 24, 2013. The Board’s review authority is limited to appeals which are filed
within 180 days from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(e). As appellant did not file
her appeal until May 19, 2015, the Board lacks jurisdiction to review the decisions concerning her schedule award
claim.
4

This claim was assigned OWCP File No. xxxxxx499. On October 25, 2013 OWCP combined OWCP File No.
xxxxxx499 with OWCP File No. xxxxxx614. Under OWCP File No. xxxxxx614 OWCP had accepted that
appellant sustained a left knee strain as the result of a February 2003 traumatic injury. Appellant was released to full
duty with no restrictions effective March 5, 2003 and she returned to work on March 12, 2003. By decision dated
August 22, 2013, OWCP granted a schedule award for three percent left lower extremity. It denied appellant’s
request for modification in a merit decision dated October 24, 2013. In a nonmerit decision dated July 24, 2013,
OWCP denied reconsideration of the August 22, 2013 decision.

2

In statements of accepted facts dated June 5 and July 9, 2013, OWCP related that
appellant was currently working full time in a limited-duty job. It noted that she had two other
accepted claims. Under OWCP File No. xxxxxx114, OWCP accepted a lumbar strain as the
result of an August 5, 1997 traumatic injury and under OWCP File No. xxxxxx614 a left knee
strain was accepted as the result of a February 2003 traumatic injury.
In a June 6, 2013 report, Dr. Jachna noted that since 2012 he has treated appellant for a
2003 left knee injury, which was reinjured on December 3, 2011. The reinjury on December 3,
2011 resulted in increasing instability and pain. A computerized tomography (CT) scan showed
medial compartment arthritic changes with a lateral patella subluxation and loss of anterior
cruciate ligament and effusion. On October 16, 2012 arthroscopic surgery with chondroplasty
and meniscectomy was performed and followed by a normal postoperative course. Nonethless,
the swelling continued and extended into her left leg. The swelling caused left ankle pain and
aggravated her right knee. A January 15, 2013 CT scan showed bilateral chronic degenerative
medial and lateral menisci degenerative joint changes incuding lateral moderately severe
degenerative compartment changes. Dr. Jachna attributed appellant’s right knee degenerative
changes to her favoring the left knee and placing her weight on the right leg. He diagnosed left
knee post-traumatic degenerative joint disease and meniscal tear; postoperative left lower
extremity chronic insuffiicenty and venous stasis; and right knee degenerative joint disease.
The claim was reviewed by an OWCP medical adviser on June 28, 2013. The medical
adviser noted that the prior medical records of Dr. Jachna failed to document the existence of any
right knee or left ankle diagnoses or conditions.
On July 16, 2013 OWCP referred appellant to Dr. Robert Sciortino, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine whether appellant sustained
any consequential injuires.
In an August 2, 2013 report, Dr. Sciortino provided a history of appellant’s December 3,
2011 injury, the accepted diagnoses, and the treatment provided. He diagnosed left knee
degenerative lateral meniscus tear, bilateral knee osteoarthritis, and left lower extremity chronic
lymphedema. A physical examination revealed bilateral intact neurovascular extremities,
bilateral intact capillary refill, bilateral palpable distal pulses, left knee intact range of motion,
and full range of motion in the right knee. Dr. Sciortino reported fairly extensive pitting edema
in the left leg from above the knee to the ankle and foot. In response to OWCP’s question, he
noted that there was evidence of a large amount of left lower extremity chronic lymphedema, but
he was unclear as to the exact etiology. Dr. Sciortino elaborated that he was unsure whether this
condition was caused or related to her surgery or due to the enlarged lymph nodes in the left
groin. Next, he attributed appellant’s left ankle condition to her chronic lympedema.
By decision dated October 24, 2013, OWCP denied appellant’s request to expand her
claim to include consequential injuries of lymphedema, right knee conditon, and left ankle
condition. It found that the medical evidence of record clearly documents a history of left lower
extremity edema as early as February 12, 2003 and continuing through at least 2007, as well as
bilateral lower extremity denegerative changes as early as 2010. OWCP also found that the
opinion of Dr. Sciortino constituted the weight of the medical evidence as Dr. Jachna did not
provide a well rationalized and clear medical opinion on diagnosis and causation.

3

On November 5, 2013 counsel requested reconsideration of OWCP’s October 24, 2013
decision and submitted new medical evidence.
In progress notes dated November 25, 2013, Dr. Jachna diagnosed left knee degnerative
disc joint disease with lymphedema. Physical examination findings included left knee effusion,
crepitus, and joint line tenderness and left leg swelling above the knee due to lymphedema.
Dr. Jachna, in progress notes dated January 9 and 16, 2014, noted that appellant was seen
for her chrondoplasty with left lower extremity lymphedema, left knee degenerative joint disease
status post menisectomy, and right knee concurrent injury. He reported that appellant’s right
knee and ankle pain had worsened due to increased usage following her left knee arthroscopy.
Physical examination findings included: antalgic gait while walking; swelling in the left knee
down to the ankle with prominent lymphedema changes; minimal right lower extremity
lymphedema changes; right knee crepitus, effusion and joint line tenderness; and reduced left
ankle range of motion with pain, swelling, and lymphedema.
Dr. Jachna, in a progress note dated March 27, 2014, related that appellant’s bilateral leg
lymphedema was worsening. A physical examination showed an antalgic gait and bilateral knee
crepitus, joint line tenderness, and effusion as the result of increased pain.
On June 12, 2014 counsel clarified that appellant was seeking reconsideration of the
decision denying her request to expand her claim to include consequential injuries.
By decision dated July 25, 2014, OWCP denied modification of the request for
reconsideration.
In an August 10, 2014 report, Dr. Jachna noted physical examination findings and
subjective complaints and left knee post meniscectomy arthrosis was diagnosed.
In a form dated November 4, 2014, appellant again requested reconsideration.
In progress notes dated December 18, 2014, Kathleen M. Nikodym, a physician assistant,
diagnosed left knee post meniscectomy and provided physical examination findings.
By decision dated February 17, 2015, OWCP denied modification.
LEGAL PRECEDENT
The general rule regarding consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.5
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.6 With respect to consequential injuries, the Board has found that, where an
5

Albert F. Ranieri, 55 ECAB 598 (2004).

6

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117
(1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

4

injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.7
ANALYSIS
The Board finds that the case is not in posture for decision as to whether appellant
sustained a consequential left ankle condition, lymphedema, and a right knee condition causally
related to a December 3, 2011 employment injury.
In an August 2, 2013 report, Dr. Sciortino, an OWCP referral physician, provided his
medical findings. He diagnosed left knee degenerative lateral meniscus tear, bilateral knee
osteoarthritis, and left lower extremity chronic lymphedema. Dr. Sciortino reported intact
neurovascular extremities, bilateral intact capillary refill, bilateral palpable distal pulses, left
knee intact range of motion, and full range of motion in the right knee. He also found fairly
extensive pitting edema from above the left knee to the ankle and foot. Dr. Sciortino expressed
uncertainty as to the etiology of appellant’s left lower extremity chronic lymphedema and the
enlarged lymph nodes in the left groin. He was unsure whether these conditions were caused or
related to her accepted conditions or the surgery. Dr. Sciortino attributed appellant’s left ankle
condition to her chronic lymphedema, but failed to adequately determine whether it was
consequential to the accepted conditions. The Board has held that medical opinions that are
speculative or equivocal in nature are of diminished probative value.8 The Board finds that
Dr. Sciortino’s opinion is insufficient to determine the issue of whether these additional
conditions are causally related to the accepted injuries.
Once OWCP undertakes to develop the medical aspects of a case, it has the responsibility
to do so in a proper manner.9 Given the deficiencies in Dr. Sciortino’s report, the case is
remanded to OWCP to secure a medical opinion that resolves the question of whether appellant
sustained a consequential left ankle condition, lymphedema, and a right knee condition causally
related to the accepted December 3, 2011 employment condition. Following this and such other
development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

8

L.R. (E.R.), 58 ECAB 369 (2007); D.D. 57 ECAB 734 (2006); M.W., 57 ECAB 710 (2006); Ceclia M. Corley,
56 ECAB 662 (2005).
9

See P.K., Docket No. 08-2551 (issued June 2, 2009); Peter C. Belkind, 56 ECAB 580 (2005); Melvin James, 55
ECAB 662 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 17, 2015 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: December 10, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL FACILITY,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-123
Issued: June 9, 2008

Case Submitted on the Record

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

JURISDICTION
On October 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 6, 2007 regarding a left shoulder
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a left shoulder condition causally related to
a May 31, 2003 employment injury.
FACTUAL HISTORY
On June 3, 2003 appellant, then a 33-year-old mail handler, filed a traumatic injury claim
alleging that she sustained a back injury on May 31, 2003. She stated that she was attempting to
move a wire cage of mail. The Office accepted myofascial strain of the low back and herniated
nucleus pulposus L5-S1. Appellant worked intermittently and then stopped working on
August 10, 2004, when she underwent back surgery.

The Office developed the record with respect to appellant’s continuing disability for
work. Appellant was referred to Dr. Thomas Branch, a Board-certified orthopedic surgeon, for
an opinion as to appellant’s employment-related disability.1 In a report dated October 31, 2005,
Dr. Branch provided a history and results on examination. With respect to the left shoulder, he
indicated that appellant was not complaining of pain and he reported a normal examination with
full range of motion.
In a report dated January 31, 2007, Dr. Stephen McCollam, an orthopedic surgeon, stated
that in May 2003 appellant was jerking a cage and developed left shoulder pain in July 2003. He
reported that appellant had significant pain since then and she could not remember any other
injury to her left shoulder. Dr. McCollam provided results on examination and diagnosed a left
rotator cuff tear, based on a magnetic resonance imaging scan.
By decision dated September 6, 2007, the Office determined that appellant had not
established a left shoulder injury causally related to the May 31, 2003 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including that specific condition for
which compensation is claimed is causally related to the employment injury.3 The medical
evidence required to establish causal relationship is rationalized medical evidence.4
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.5
ANALYSIS
In this case, appellant seeks to expand her claim to include a left shoulder condition. The
Office has accepted a herniated disc at L5-S1 and a low back myofascial strain as a result of
attempting to move a wire cage of mail on May 31, 2003. Appellant has the burden of proof to
1

Dr. Branch was selected as a referee physician to resolve a conflict under 5 U.S.C. § 8123(a).

2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See John W. Montoya, 54 ECAB 306, 308 (2003).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

2

submit medical evidence of sufficient probative value to establish a left shoulder condition
causally related to the May 31, 2003 employment injury. She did not meet her burden of proof
in this case. There are no medical reports contemporaneous to the May 31, 2003 injury
regarding a left shoulder condition. The initial report discussing a left shoulder injury is
Dr. McCollam’s January 31, 2007 report which stated that appellant reported left shoulder pain
in July 2003, but he did not provide an opinion on causal relationship between a diagnosed
rotator cuff tear and the employment injury. In addition, the medical reports of record prior to
January 31, 2007 providing examination results for the upper extremities report a normal
examination. For example, a July 10, 2003 report from Dr. Shevin Pollydore, an orthopedic
surgeon, reported a normal upper extremity examination and Dr. Branch reported a normal left
shoulder examination on October 31, 2005.
The Board finds that the medical evidence submitted is insufficient to meet appellant’s
burden of proof. In the absence of a rationalized medical report, based on a complete and
accurate background, on the issue of causal relationship with the May 31, 2003 employment
injury, appellant did not establish a left shoulder condition as employment related.
CONCLUSION
The medical evidence does not establish a left shoulder condition causally related to a
May 31, 2003 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2007 is affirmed.
Issued: June 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ILLIANA HEALTH CARE SYSTEM,
Mattoon, IL, Employer
__________________________________________

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

Docket No. 11-905
Issued: October 19, 2011

Case Submitted on the Record

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

JURISDICTION
On February 22, 2011 appellant filed a timely appeal from a February 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s injury of March 2, 2010 was sustained while in the
performance of duty.
FACTUAL HISTORY
On March 2, 2010 appellant, then a 48-year-old nurse, filed a traumatic injury claim
alleging that, at 7:30 a.m. that day, he slipped and fell on ice while exiting his jeep in the parking
1

5 U.S.C. § 8101 et seq.

lot of the Illiana Health Care System. He sustained back and neck pain, a headache, and
abrasions to his left elbow and right fourth finger. Appellant’s regular tour of duty was 7:45 a.m.
to 4:15 p.m. Monday through Friday. He submitted physical therapy records, x-ray reports and
magnetic resonance imaging (MRI) scan reports. The employing establishment authorized
continuation of pay (COP) effective March 3, 2010 pending OWCP’s decision.2
On December 29, 2010 OWCP requested additional information from the employing
establishment about the location of the alleged injury. It asked whether the parking facility was
owned, maintained, or controlled by the employer; whether the lot in which appellant parked his
vehicle was available to the general public; whether other parking was available to employees;
whether parking was provided without cost to the agency’s employees; whether the parking
facility was contracted for the exclusive use of its employees; whether parking spaces were
assigned by the employing establishment to its employees; and whether the parking facility was
monitored to see that no unauthorized cars were parked in that lot. OWCP also requested that
appellant provide additional details to substantiate the factual element of his claim and a
physician’s report with a diagnosis and opinion as to the cause of any diagnosed conditions.
On January 20, 2011 Tisha Harvey, an employee relations specialist, responded to
OWCP’s request. She stated that the parking facility where the alleged injury occurred was not
owned, controlled, or managed by the employing establishment, but was leased from Gardner,
Whitworth, and Associates, a private company. The employing establishment did not contract
for the exclusive use of the parking lot for its employees, assign parking spaces to employees,
charge employees for using the lot, or check to see that unauthorized vehicles did not park in the
lot. Instead, the parking facility was shared by other retail establishments and the public was
also permitted to use the lot. Ms. Harvey explained that the lot was spacious with more than 100
spots available and that the approximate distance between where the accident occurred and
where appellant’s duties were performed was approximately 60 feet.
By decision dated February 10, 2011, OWCP denied appellant’s claim finding that his
March 2, 2010 injury did not occur in the performance of duty. It determined that, because the
employing establishment did not own, lease, or manage the parking garage where the alleged
injury occurred, his injury was sustained off-premises and did not arise during the course of his
employment.
LEGAL PRECEDENT
Under FECA, off-premises injuries sustained by employees having fixed hours and place
of work, while going to or coming home from work or during lunch period, are not compensable
as they do not arise out of or in the course of employment but are merely the ordinary,
nonemployment hazards of the journey itself, which are shared by all travelers.3 This is in
2

On November 24, 2010 appellant filed a recurrence claim alleging that on November 6, 2010 he sustained a
recurrence of the alleged March 4, 2010 injury. On December 29, 2010 OWCP advised her that it was unable to
make a determination regarding his recurrence claim because his initial claim had not been fully processed,
specifically whether he sustained a work-related injury on March 2, 2010.
3

Randi H. Goldin, 47 ECAB 708 (1996); Conrad F. Vogel, 47 ECAB 358 (1996).

2

accord with the weight of authority under workers’ compensation statutes that such injuries do
not occur in the course of employment.4 In the course of employment relates to the elements of
time, place, and work activity. To arise in the course of employment, an injury must occur at a
time when the employee may reasonably be said to be engaged in his master’s business, at a
place where he may reasonably be expected to be in connection with his employment, and while
he was reasonably fulfilling the duties of his employment or engaged in doing something
incidental thereto.5
However, exceptions to this rule have been declared by courts and workers’
compensation agencies. One such exception is the premises rule, which stipulates that an
employee driving to or coming from work is covered under workers’ compensation while on the
premises of the employer. The Board has found that the term “‘premises’ as is generally used in
workmen’s compensation law, is not synonymous with ‘property.’ The former does not depend
on ownership, nor is it necessarily coextensive with the latter. In some cases ‘premises’ may
include all the property owned by the employer; in other cases, even though the employer does
not have ownership and control of the place where the injury occurred, the place is nevertheless
considered part of the premises.”6
The Board has pointed out that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employer contracted for the exclusive use by its employees of the parking area, whether
parking spaces on the lot were assigned by the employer to its employees, whether the parking
areas were checked to see that no unauthorized cars were parked in the lot, whether parking was
provided without cost to the employees, whether the public was permitted to use the lot and
whether other parking was available to the employees. Mere use of a parking facility, alone, is
not sufficient to bring the parking lot within the premises of the employer. The premises
doctrine is applied to those cases where it is affirmatively demonstrated that the employer
owned, maintained or controlled the parking facility, used the facility with the owner’s special
permission, or provided parking for its employees.7
ANALYSIS
On March 2, 2010 appellant slipped and fell on ice when exiting from his vehicle in a
parking lot located near the employing establishment. He sustained injuries to his neck, back,
and left elbow. The record establishes that appellant had fixed hours and place of work and that
his injury occurred while going to work that morning. Under the going and coming rule,
appellant’s slip and fall did not arise out of or in the course of employment and is not considered
to be sustained in the performance of duty unless he establishes that the incident occurred on the

4

William L. McKenney, 31 ECAB 861 (1980).

5

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2000); T.F., Docket No. 08-1256 (issued November 12, 2008).

6

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

7

Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman, 36
ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982).

3

actual or constructive premises of the employing establishment.8 The Board finds that appellant
was not in the performance of duty at the time of his slip and fall on March 2, 2010.
The location where appellant slipped and fell was approximately 60 feet from the
employing establishment’s building before his tour of duty began. On appeal, he explained that
he arrived at 7:30 a.m. to allow himself enough time to start his tour of duty at 7:45 a.m. and
noted that his injury occurred in the parking lot of the Veterans Affairs Mattoon Community
Based Outpatient Clinic (CBOC). Under the circumstances of this case, however, the Board
finds that the parking lot was not part of the actual premises of the employing establishment.
Rather it was being leased from a private company and was not owned controlled, or managed
by the employing establishment.9
The record establishes that the parking facility is not part of the constructive premises of
the employing establishment. The Board has held that, under special circumstances, the
employment premises may be constructively extended to hazardous conditions which are
proximately located to the premises and therefore may be considered as hazards of the
employing establishment.10 As noted, the employing establishment was not responsible for
maintaining the parking facility, did not check to see if any unauthorized cars were parked in the
lot, did not assign any parking spaces to its employees, and did not exclusively contract the
parking lot for its employees. The parking facility was shared by other retail establishments, was
free of charge to the employees, and open to the public. Under these circumstances, the Board
finds that the parking lot was not so connected with the employer as to be construed as part of
the employer’s premises. Thus, the employer’s premises should not be constructively extended
to include the parking lot in this case.11
Appellant’s March 2, 2010 slip and fall thus constitutes an off-premises injury that
occurred while appellant was going to work, which is not compensable as it did not arise out of
and in the course of employment, but out of ordinary nonemployment hazards of the journey
itself which are shared by all travelers.12
CONCLUSION
The Board finds that appellant failed to establish that his March 2, 2010 injury was
sustained while in the performance of duty.

8

Sallie B. Wynecoff, 39 ECAB 186 (1987).

9

See Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

10

See Randi H. Goldin, supra note 3 at 711.

11

See M.P., Docket No. 10-54 (issued July 27, 2010).

12

Rosa M. Thomas-Hunter, supra note 9; Jacqueline Nunnally-Dunord, 36 ECAB 217 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 19, 2011
Washington, DC

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

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

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

5