RR v. USPS (ECAB 11-919 12/19/2011) Appellant allegedly injured her neck during the April 29, 2010 work incident, but according to her supervisors she did not provide notification to the employing establishment for four days, after initially advising that she had injured her back during the incident. In addition, while not relevant to the issue of whether appellant injured her neck on April 29, 2010, appellant’s credibility is further diminished because she denied running in several long distance races in March and April 2010, despite the fact that the employing establishment produced documentary evidence and a Facebook entry which indicated that she participated in several races during this period.
TW v. USPS (ECAB 11-732 11/29/2011) The regulations clearly specify that “[t]he hearing request must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of the decision for which a hearing is sought.” The applicable regulation does not measure timeliness based on the date of receipt, but instead based on the postmark.
AS v. Peace Corp (ECAB 11-1677 10/26/2011) OWCP appears to vacillate between the standard for an untimely request for reconsideration under 20 C.F.R. § 10.607(b) -- clear evidence of error -- and the standard for a timely request for reconsideration under 20 C.F.R. §§ 10.606(b). It repeatedly noted the lack of evidence of “error” with respect to the May 5, 2008 schedule award decision. If appellant timely requested reconsideration as OWCP’s June 27, 2011 decision implied, then clear evidence of error is not the appropriate standard. Accordingly, the case shall be remanded for proper adjudication of appellant’s request for reconsideration. The Board further notes that the June 27, 2011 decision is deficient because OWCP failed to comply with 20 C.F.R. § 10.126, which provides that the “decision shall contain findings of fact and a statement of reasons.” The mere recitation of the dates of various medical reports and statements will not suffice for purposes of determining whether appellant is entitled to further merit review of his claim for a schedule award.
JD v. Department of Interior (ECAB 1-1308 09/15/2011) The Federal (FECA) Procedure Manual (the procedure manual) provided that the selection of referee physicians (impartial medical specialists) be made through a strict rotational system using appropriate medical directories. As OWCP has not provided the necessary documentation to establish that Dr. Entin was appropriately selected, he cannot serve as the impartial medical examiner.
AP v. Department of VA (ECAB 10-584 10/26/2010) ECAB reinforces position that under the current 6th Edition of the AMA Guides, the lumbar spine is not recognized as a vital organ for federal employees and thus not entitled to compensation.
A.D. v. Department of Navy (ECAB 09-2030 05/20/2010)The issue is whether appellant has established that he sustained a chronic pain condition as a consequence of his accepted injuries. The Office denied the claim, stating that pain is not an acceptable diagnosis; however, the Board has held that chronic pain and limitations resulting from an employment injury are compensable under the Federal Employees’ Compensation Act. Dr. Farrukh found that appellant remained disabled due to his accepted lumbar disc disorders and had chronic pain syndrome resulting from these injuries. The reports from Dr. Beck diagnosed a pain condition and mood disorder which he attributed to appellant’s back injuries.While the reports are not sufficient to meet appellant’s burden of proof, they raise an uncontroverted inference of causal relationship between his accepted back conditions sufficient to require further development of the medical evidence.
L.T. v USPS (ECAB 09-1798 08/05/2010) When a claimant advances a new legal argument on appeal to OWCP that the OWCP did not previously consider, then she is entitled to another review of her claim. The OWCP erred in refusing to open the case for further consideration once the claimant submitted a new legal argument that she was performing a required saftey check of her vehicle at home when injured.
A.J. v. USPS (ECAB 10-619 06/29/2010) Once the wage-earning capacity of an injured employee is determined, a modification of such determination is not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous. Appellant does not contend that modification of the September 26, 2003 LWEC determination was warranted prior to her termination on January 6, 2006 due to a material change in the nature and extent of the injury-related condition, nor does the evidence establish that she has been retrained or otherwise vocationally rehabilitated. Appellant contends, rather, that the original determination was, in fact, erroneous. She contends that her actual earnings in the position upon which the original LWEC was based did not fairly and reasonably represent her wage-earning capacity, as the assignment itself was make-shift in nature. The Board agrees.
FW v. Dept of Navy(ECAB 09-1193 05/06/2010) The claimant's doctors' medical reports stating that it was "more likely than not" and "possible" his illness was due to work conditions were fatal to establishing proof of on the job injury; benefits denied.
LD v USPS (ECAB 09-1503 04/15/2010) The OWCP accepted the claim of CTS but denied compensation on ground that there was no medical proof of disability due to the CTS. On appeal to ECAB, the Board overruled the OWCP. The Board found that the claimant's treating doctor's reports provided an unequivocal opinion that the claimant's work duties caused the diagnosed condition of bilateral carpal tunnel syndrome and resulted in disability from employment during the time in question.
NW v Department of Navy (ECAB 09-1008 03/24/2010) The issue is whether appellant met his burden of proof to establish that a modification of the Office's July 18, 2006 loss of wage-earning capacity determination was warranted.Appellant argued that he was not qualified for the quality assurance analyst position because he did not receive typing or keyboard training. The DOT job description for quality assurance analyst rates wrist-finger speed and handling and moving objects as important skills. The evidence establishes that the Office's July 18, 2006 wage-earning capacity decision was erroneous in finding that appellant was capable of earning wages in the position of quality assurance analyst.
JM v Department of VA (ECAB 09-1563. 02/26/2010) Claims that are timely under section 8122 are not necessarily timely under section 8118(a). "Section 8118(a) makes continuation of pay contingent on the filing of a written claim within 30 days of the injury. When an injured employee makes no written claim for a period of wage loss within 30 days, she is not entitled to continuation of pay, notwithstanding prompt notice of injury. The record shows that appellant provided notice of injury to her supervisor on October 21, 2005 but this oral notice is not determinative to whether she is entitled to continuation of pay under section 8118(a)."
KL v. Department of Navy (ECAB 09-1865. 03/22/2010) OWCP and OWCP's doctors approve claimant's hearing loss and pay her a scheduled award. OWCP ECAB, one year later, on its own, takes back the scheduled award ruling claimant did not timely file her claim.
DF v. US Marines (ECAB 09-1674. 03/11/2010) Claimant cut his hand while on the job repairing government issued Balckberry. Compensation benefits denied when claimant failed to submit requested evidence supporting on the job injury.
CS v. Department of Homeland Security (ECAB 09-1597) Under the Federal Employees’ Compensation Act at 5 U.S.C. § 8123(d), “If an employee refuses to submit to or obstructs an examination, [her] right to compensation under this subchapter is suspended until the refusal or obstruction stops.”
DH v. USPS (ECAB 09-0381, 11/03/2009) In determining the suitability of a position, the Office must consider preexisting and subsequently acquired conditions in the evaluation of suitability of an offered position. As the weight of the medical evidence is insufficient to establish that appellant is capable of performing the offered position, in view of both her work-related and nonwork-related conditions, the Office did not meet its burden of proof in establishing that appellant refused suitable work.
SB v. USPS (ECAB 09-1012) If OWCP refers a case to a referee physician to resolve a conflict in the medical evidence, the OWCP CE may not pose leading questions to the physician, but must keep the questions neutral. When leading questions are posed, the resulting medical report must be excluded from the record, and another referee must be selected
RA v. Department of Agriculture (ECAB 09-552) Impartial medical specialist report may not be entitled to special weight where the physician who submitted it has been disciplined by a state medical board for failing to perform a proper examination and assessment of the claimant..
BC v. USPS (ECAB 09-653) Federal employee who is injured while on travel status, a temporary-duty assignment, or a special mission for the employing agency is entitled to coverage under the Federal Employees' Compensation Act unless she voluntarily deviates from activities essential or incidental to her special duties.
MT v. Department of Army (ECAB 09-208) Federal employee alleges that e-mails exchanged with a coworker and written partly in Spanish were argumentative and contributed to the elevation of her blood pressure and eventual stroke, the OWCP must obtain an accurate translation of the e-mails. It cannot rely on the employing agency's characterization of the e-mail exchange as "professional" in nature
P.G. vs. Department of Navy (ECAB 08-2183) While the Office’s delay in adjudicating the hearing loss claim is regrettable, there is no entitlement to a posthumous schedule award if the schedule award claim is not filed during the lifetime of the injured employee.
K.H. v. USPS (ECAB 08-2392) When an employee seeks to modify a loss of wage-earning capacity determination, he must establish that: 1) a material change in the nature and extent of the injury-related condition has occurred; 2) he has been retrained or otherwise vocationally rehabilitated; or 3) the original LWEC determination was erroneous. The fact that the employing agency withdrew a light-duty assignment after a formal LWEC decision was issued does not mean the employee is entitled to compensation for a recurrence of disability. He must still demonstrate that one of these three criteria is present.
Nelson v. IRS (ECAB 04-2123) Under this section of the Act, an employee’s failure to willingly cooperate with vocational rehabilitation may form the basis for termination of the rehabilitation program and the reduction of monetary compensation.
Vivens V. USPS (42 ECAB 303) The Board finds that the Office properly determined that appellant may not concurrently receive compensation pursuant to a schedule award and compensation for partial disability for loss of wage-earning capacity.
Hawkins v. VA (ECAB 03-1232) The Board has held that a claimant cannot concurrently receive compensation under a schedule award and compensation for total disability for work. Therefore, the Board finds that appellant is not entitled to receive payments pursuant to his schedule award concurrently with his disability compensation.
Rose v. USPS (905 F.2d 1257, 9th Cir. 1989) Whether or not the USPS's failure to provide forms and in delay in filing Rose's OWCP Claims forms is a question of intent: Rose must show that the USPS's actions or inactions were willful or intentional.
D.L. v. USPS(01/29/09) The record raises an uncontroverted inference of causal relationship: there is no opinion to the contrary from an Office medical adviser or other physician. The Board finds that, while the treating physician report does not discharge appellant’s burden of proof to establish the essential element of causal relationship, it is sufficiently supportive of her claim that further development of the medical evidence is warranted.
D.M. v. Dept. of Army (01/16/09) The issue on appeal is whether the Office properly denied appellant’s request for an oral hearing as untimely.
R.C. v. USPS(01/12/09) The issue is whether the Office properly terminated appellant’s wage-loss compensation and medical benefits effective April 9, 2008 on the grounds that he no longer had any residuals or disability due to his accepted employment injury..
Delatat v. Dept. of Air Force Although a reemployed annuitant’s at-will employment status may make the annuitant vulnerable to termination upon restoration, the statutory right to restoration nonetheless protects the reemployed annuitant from termination predicated on a compensable injury
Mitchell v. Dept. of Army The Board has consistently held that electing to receive retirement benefits is not an acceptable reason for refusing suitable work.
WS v. Dept. of State The issue is whether the Office met its burden of proof to modify appellant’s wage-earning capacity determination and reduce his compensation benefits to zero on the grounds that he has been vocationally rehabilitated.
I.H. v. USPS It is well established that when a referee examination is arranged to resolve a conflict in medical opinion, the medical adviser is not to attempt clarification of expansion of the impartial medical specialist’s opinion.
Kramm v. DOA, Saigon Republic of Vietnam The Board finds that the employee’s bladder cancer was causally related to his exposure to Agent Orange and pesticides in Vietnam.
Pygman v. DOI The Board finds that the nonexamining Office medical adviser’s decision is arbitrary and without any rationale for arriving at six percent impairment using the same identical table as the examining physician and thus reverses the Office’s decision awarding appellant’s a six percent impairment.
J.B. v. USPS A schedule award is payable consecutively but not concurrently with an award for wage loss for the same injury.A schedule award for one injury may be paid concurrently with compensation for wage loss paid for another injury, as long as the two injuries do not involve the same part of the body.
F.H. v. Dept. of Air Force Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee who “fails to make an affidavit or report when required or knowingly omits or understates any part of his earnings, forfeits his right to compensation with respect to any period for which the affidavit or report was required.”
M.C. v. DOI An award of compensation may not be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition became apparent during a period of employment, nor the belief that his or her condition was caused, precipitated or aggravated by his or her employment, is sufficient to establish causal relationship.
J.S. v. DOL The issue is whether the employee sustained colon cancer or a respiratory condition causally related to his federal employment.
E.K. v DOA The Board will not require the Office to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow an employee to self-certify his disability and entitlement to compensation.
Tiller v. Dept. of Air Force The issue is whether the Office of Workers’ Compensation Programs met its burden of proof to terminate appellant’s compensation benefits on the grounds that she abandoned suitable work.
R.M. v. USPS The issue is whether the Office met its burden of proof to suspend appellant’s compensation benefits under section 8113(b) of the Federal Employees’ Compensation Act on the grounds that he refused to cooperate with his assigned field nurse.
Sligh v. USPS When the fall at work is unexplained, and therefore attributable neither to the employment nor to the claimant personally, the risk is neutral, and an injury arising in the course of employment from a neutral risk is compensable.
Collins v. USPS The Board holds that the opinion of an examining physician in the appropriate field of medicine takes precedence over the opinion of an Office medical adviser when considering subjective factors.
M.M. v VAMC As the Office failed to review all evidence submitted by appellant prior to issuance of its final decision, the Board finds that the Office improperly terminated appellant’s compensation benefits on the grounds that she refused an offer of suitable work.
K.H. v. USPS The Board finds that the Office improperly terminated appellant’s compensation and medical benefits as it did not meet its burden of proof to establish that appellant’s accepted condition had ceased.
E.M. v. DOD The issues are: (1) whether appellant met her burden of proof to establish that she sustained an emotional condition in the performance of duty; and (2) whether the Office properly refused to reopen appellant’s case for reconsideration of her claim under 5 U.S.C. § 8128.
J.M. v. USPS The issues are: (1) whether appellant received an overpayment of compensation in the amount of $43,846.23 for the period April 20, 2002 to October 4, 2003 because he received dual benefits from the Office and the Department of Veterans Affairs; and (2) whether he is entitled to wavier of the overpayment.
|