2000 FECA Circulars Archive

2000 FECA Circulars which have previously been issued by the DFEC but have since been superseded by another Circular or inclusion in the FECA Procedure Manual.

Fiscal Year 2000
Circular	Subject
FECA Circular No. 00-01	Folio VIEWS Job Aid
FECA Circular No. 00-02	Representative Fee Petitions (12/99A)
FECA Circular No. 00-03	Dual Benefits – FERS COLA (11/99B)
FECA Circular No. 00-04	Selected ECAB Decisions for April - June, 1999 (11/99B)
FECA Circular No. 00-06	Current Interest Rates for Prompt Payment Bills and Debt Collection (02/00A)
FECA Circular No. 00-07	Code changes for the Departments of the Army, Defense, Labor, State, Transportation, and Veterans Affairs, and the U.S. Postal Service and Other Establishments, Case Management Users' Manual, Appendix 4-7 (03/00A)
FECA Circular No. 00-09	Compensation Payments--2000 Census (04/00A)
FECA Circular No. 00-10	Selected ECAB desisions for July - September 1999
FECA Circular No. 00-11	Selected ECAB desisions for October - December, 1999
FECA Circular No. 00-12	Current Interest Rates for Prompt Payment Bills and Debt Collection (08/00B)
FECA Circular No. 00-13	Dual Benefits – Authorization and Earnings Information from Social Security Administration (09/00A)

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-01

October 5, 1999

SUBJECT: FolioVIEWS Job Aid

Recently we have received several questions about the use of FolioVIEWS. Since the Job Aid currently in use has not been updated in some time, we have decided to revise and reissue it.

NANCY L. RICKER
Acting Director for
Federal Employees' Compensation

Distribution: List No. 3--Folioviews Groups A, B, C, and D
(All FECA Employees)

Folio VIEWS 3.11 Quick Start Job Aid

Folio VIEWS 3.11 operates under Windows 95 and uses many Windows conventions for file access, editing, viewing, formatting, etc. And, like other Windows applications, Folio VIEWS gives you multiple ways of doing the same thing. For example, to display the Query window, you may 1) Click on the Query button on the Toolbelt, or 2) Press the F2 key, or 3) you may press Alt+S, followed by Q, or 4) use the Menu Bar by clicking on Search, then on Query. It is advisable, when first using Folio VIEWS, to walk through each of the functions below.

To OPEN an infobase ~ Double-click on the desired infobase name in the Infobase Directory listing. You may open more than one infobase, and search on one or all open infobases. (See To SEARCH, below.) You may also click on the Open button on the Toolbelt, scroll through the filenames, and double-click on the infobase you want to open.

To CLOSE an infobase ~ Click on the Close button on the Toolbelt.

To EXIT Folio VIEWS ~ Click on the x in the upper right corner of the application window, or press Alt+F4.

To use HELP ~ Position the cursor on Help option on the Menu Bar at the top of the screen and click once. Click on Contents to get fast access to Tutorials, the Menu Bar, Quick Keys, Using the Help system, and a Glossary.

To SEARCH ~ Click on the Query button on the Toolbelt (or you may press F2; or press Alt+S followed by Q; or use the Search menu on the Menu Bar). When the Query window is displayed, enter the query text and click on OK to search the infobase. If you have more than one infobase open and wish to search against all of them, click on Apply to All.

LINK TO IMAGE ~ to see the image, double-click on the link. This will display the image in a viewer window. To return to the infobase text, click once on the x in the upper right corner of the viewer window (the lower set of window-sizing boxes).

To BLOCK & COPY TEXT to a Word document ~

Open a Word document and toggle back to Folio VIEWS.
Position the cursor at the beginning of the infobase text you wish to copy.
Hold down the left mouse button and move the mouse (or use Shift +arrow keys) to highlight all text to be copied.
Click on the Copy button on the Folio VIEWS Toolbelt.
Toggle back to the Word document. Place the cursor where you want to paste the text.
Click on Edit on the Menu Bar at the top of the Word document window.
Click on Paste.

To BLOCK & PRINT text ~

Position the cursor at the beginning of the text you wish to print.
Hold down the left mouse button and move the mouse (or use Shift +arrow keys) to highlight all text to be printed.
Click on File on the Menu Bar at the top of the window.
Click on Print.
Click on OK.

To PRINT image objects (Link to Image) ~

Double-click on an object labeled Link to Image to display it.
Click on File on the Menu Bar.
Click on Print. The Print Object window will appear.
In the Options box you may adjust the number of copies.
Click on OK.

If you get a message that says the object is too large to fit, click on Yes, and the size of the image will be decreased so that it will fit on a page. You may need to go to Print Setup to select legal sized paper in order to get a legible printout.

Standard Toolbelt Buttons

OPEN ~ Displays an Open dialog box. Double-click on an infobase name to open it. You may also double-click on an infobase name in the Infobase Directory to open an infobase.

CLOSE ~ Closes the infobase.

COPY ~ Copies highlighted text or selected in-line images to the clipboard, ready to be pasted into MS Word or another Windows application.

QUERY ~ Opens the Query dialog to search the infobase. Click on the Query button on the Toolbelt. Enter your query in the Query window and click on OK. (See To SEARCH, on p. 1.)

CLEAR QUERY ~ Clears the current query (highlighted words).

NEXT ~ While viewing results of a query, click on Next to advance the cursor to the next occurrence of the query text.

PREVIOUS ~ While viewing results of a query, click on Previous to return the cursor to the last prior occurrence of the query text.

BACKTRACK ~ Takes you back, in reverse order, through the links you have followed and the searches you have performed.

TRAIL ~ Click once on the Trail button to get a map of those links you have followed within the infobase. Double-click on any line in the trail to return to that location.

CONTENTS ~ Displays the infobase internal Table of Contents from the current position in the text. The TOC is a navigational tool designed to help you easily browse through the infobase.

GO TO ~ Permits you to jump from the current record (paragraph) in an infobase to another record in the file (by record number).

INFO ~ Shows you the last time the infobase was modified and a history of modifications.

Selected Quick Key Keystrokes
Keystroke	Description
File Options
Ctrl+O	Open
Alt+F4	Exit Folio VIEWS
Ctrl+F4	Close current infobase

Navigating
Ctrl+Home	Top of Infobase
Ctrl+End	End of Infobase
Ctrl+Enter	Activate Link
Ctrl+Tab	Next Window (i.e., move between open infobases)
Ctrl+Shift+Tab	Previous Window
Ctrl+G	Go To
F1	Help
F2	Search
F3	Find Next
F4	Find Previous
F5	Backtrack
Alt+S+Q	Search
Ctrl+F6	Next Window (i.e., move between open infobases)
Ctrl+Shift+F6	Previous Window
Ctrl+T	Table of Contents Window/Document Window toggle

Table of Contents Window
+	Expand Branch One Level
-	Contract Branch One Level
*	Expand Entire Branch
1-9	Expand All Branches to a specific level
Alt+S+C	Contract Branch One Level
Alt+S+R	Clear Query
Ctrl+T	Return to the Document Window

Other
Alt+S+Q	Search
Alt+S+R	Clear Query
Ctrl+C	Copy
Ctrl+Insert	Copy
F1	Help
F6	Tag Record/Clear Tag

Back to Table of Contents

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-02

December 20, 1999

SUBJECT: Representative Fee Petitions

The FECA Regulations at 20 CFR 10.703(a)(1) discuss the requirement that representatives submit their fee applications "to the district office and/or the Branch of Hearings and Review, according to where the work for which the fee is charged was performed." This provision has caused some confusion, as it is sometimes the case that services have been provided both before the custodial district office and the Branch of Hearings and Review during the life of the claim. Often representatives will present one application for fee approval containing services performed before both the district office and the Branch. It is not uncommon that the application will be presented to either or both of these offices.

In light of this, the location of the case file at the time the fee petition is received will determine who should consider the request and issue the decision. There is no need to split fee charges based upon where services were provided. There is also no need to request the case file from the custodial office to consider a portion of services performed before another office. If, however, questions arise regarding the propriety of any contested charge for services performed before another office, that office should be consulted.

Therefore, it is necessary that any fee petition presented to an office for a case over which that office does not have jurisdiction be routed promptly to the custodial office so that it may be considered.

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

Distribution: List No.1—Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-03

November 5, 1999

SUBJECT: DUAL BENEFITS – FERS COLA

Effective December 1, 1999, Social Security Benefits will increase by 2.4%. That requires the amount of the FERS Dual Benefits Deduction to be increased by the same amount.

This adjustment will be made from the National Office and will affect all cases that are correctly entered into the ACPS Program. The adjustment will be made effective with the periodic roll cycle beginning December 5, 1999. No adjustment will be made for the period December 1, 1999 through December 4, 1999.

If there are any cases currently being adjusted for FERS Dual Benefits that have not been entered correctly, please ensure that the correction is made by December 1, 1999.

The National Office will provide a notice to each beneficiary affected. A copy will be provided for each case file.

SSA COLA's are as follows:

Effective December 1, 1999: 2.4%

Effective December 1, 1998: 1.3%

Effective December 1, 1997: 2.1%

Effective December 1, 1996: 2.9%

Effective December 1, 1995: 2.6%

Effective December 1, 1994: 2.8%

NANCY L. RICKER
Acting Director for
Federal Employees' Compensation

Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-04

November 23, 1999

SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 1999

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.

Several decisions involving termination under 5 U.S.C. 8106(c) for failure to accept suitable employment are included. There have been a large number of reversals in this area for a variety of reasons. Other subjects include performance of duty, pay rate for a court reporter, grandchildren as dependents for purposes of augmented compensation, consequential injury, schedule awards, loss of wage-earning capacity, forfeiture for failure to report earnings, weight of an impartial examination when there is no conflict, and notification of impartial case reviews in death claims.

NANCY L. RICKER
Acting Director for
Federal Employees' Compensation

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

CONSEQUENTIAL INJURY

Billy T. McNatt, Docket No. 97-804, Issued April 14, 1999

This decision provides an interesting discussion of the basis for determining when an injury can be considered consequential.

In this case, the claimant sustained a traumatic injury on November 6, 1990 that was accepted as resulting in an acute back strain. The Office subsequently accepted a herniated nucleus pulposus (HNP) at C5-6, with a C5-6 and C6-7 diskectomy/fusion, and pain in the right shoulder.

The Office additionally authorized a June 8, 1994 surgery to repair a torn rotator cuff of the right shoulder.

A subsequent recurrence was claimed commencing July 3, 1995. This period of disability occurred when the claimant was attempting to lift an empty propane tank out of the back seat of his truck while away from work. The Office denied this recurrence claim noting that this constituted a new, non-work-related injury.

The Board stated, "It is an accepted principle of workers' compensation law, and the Board has so recognized, 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."

The Board then cites Larson:

When the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of 'direct and natural results' and of claimant's own conduct as an independent intervening cause.

The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.

The Board goes on to opine, "Thus it is accepted that once the work-connected character of any condition is established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. If a member weakened by an employment injury contributes to a later fall or other injury, the subsequent injury will be compensable as a consequential injury. If further complication flows from the compensable injury, i.e. so long as it is clear that the real operative factor is the progression of the compensable injury, with an exertion that in itself would not be unreasonable under the circumstances, the condition is compensable."

The Board remanded the case, directing the Office to discuss whether the claimant's activity in reaching behind the seat of his car to lift a propane can was reasonable in light of his preexisting condition. The Office was further directed to provide reasons for the finding of an independent intervening cause for the July 3, 1995 disability.

DEPENDENT GRANDCHILDREN - AUGMENTED COMPENSATION

Barbara J. Hill, Docket No. 97-871, Issued April 20, 1999
Lill Rollins, Docket No. 97-2780, Issued June 16, 1999

The decisions in these cases contrast with the decision in Clyde Stevenson (Docket No. 95-3016, issued February 4, 1998), which was summarized in FECA Circular 99-9. The Stevenson decision dealt with dependent grandchildren in a death claim. In the Hill and Rollins decisions, the appellants claimed augmented compensation on the basis that they had legal custody of their minor grandchildren.

Section 8110 of the FECA provides that a "dependent" for purposes of augmented compensation includes an unmarried child "while living with the employee or receiving regular contributions from the employee towards his support." In section 8101(9), a "child" is defined as one "who is under 18 years of age or over that age and incapable of self-support, and includes stepchildren, adopted children, and posthumous children, but does not include married children."

The Board found that a "grandchild" was not a "child" as defined in the Act, and therefore did not qualify a claimant for augmented compensation. These decisions serve to illustrate the differences in dependent status between disability and death cases.

FORFEITURE FOR FAILURE TO REPORT EARNINGS

Daniel A. Mashe, Docket No. 97-2115, Issued June 11, 1999

A forfeiture of compensation was declared for the period September 10, 1990 through June 27, 1992 on the grounds that the claimant concealed his employment at a liquor store during that time and did not report the employment as required under 5 U.S.C. 8106(b). The Office found that the claimant had failed to report his employment on Form CA-1032.

The claimant contended that he had performed no work, had no duties, and was not employed. A postal inspection report for the period in question reported that the claimant was observed many times working behind the counter, waiting on customers, working the register, and at times, minding the store by himself. The store had no records for the claimant, and the owner stated that he was not an employee, but that he did serve a security function, and would sometimes be in the store alone, waiting on customers. The claimant himself stated that he was at the store to pass time, and that he had known the owner for many years. He stated that he was at the store six days per week, four hours per day. He admitted that he did help out when needed. However, he also stated that he was not employed in the store, and received no remuneration, and that if he stopped going to the store, the owner would not hire anyone to replace him.

The Board found that the Office improperly declared a forfeiture for failure to report employment. They found that the claimant received no wages, tips, or other advantage in exchange for his activities at the store. They found that the evidence clearly established that the claimant was engaged in work activities for which he was not paid, and that his failure to report what it would have cost the store owner to hire someone to perform the work he performed might make him liable for criminal prosecution, and his compensation could be reduced to reflect his wage-earning capacity. However, without evidence of earnings or other remuneration, invoking the penalty provisions of section 8106(b)(2) was improper. The Board also noted that this situation was different from invoking the forfeiture penalty in cases where the claimant has been self-employed in a family-owned business. In this claim, the employee had no financial interest in the store.

IMPARTIAL EXAMINATION - NOTIFICATION REQUIRED IN DEATH CLAIMS

Rosita Mahana, claiming as widow of Wayne Mahana, Docket No. 97-92, Issued April 13, 1999

A claim for death benefits was filed, contending that the death of the employee by suicide was related to employment factors. The widow submitted medical evidence that supported the claim. The Office referred to case record to a specialist for a second opinion review. The second opinion reviewer did not support a causal relationship between the employee's work and his death, and the Office determined that there was a conflict of medical opinion, necessitating review by an impartial specialist. The case record was referred to an impartial psychiatrist, but a copy of the referral letter was not sent to the widow or to her representative. Following the review, the Office advised the widow that the claim had been reviewed by an impartial specialist, who stated that the employee's death was not due to his employment.

The widow's attorney objected to the referral of the case record for impartial review without notification to either the widow or himself. The Office responded that since only a review of the record was required, they did not notify the widow or her representative. The claim for survivor's benefits was rejected on the basis that the employee's death was not related to employment factors.

The Board found that the case was not in posture for a decision. They noted that the Office properly determined that there was a conflict of medical opinion. They cited the Federal (FECA) Procedure Manual, Chapter 3.500.4d, which states, "Notification that the examination is being arranged under the provisions of 5 U.S.C. 8123 will give the claimant an opportunity to raise any objections to the selected physician prior to the examination." The Board found that this provision applies equally to death and disability claims, and that by failing to notify the widow in the instant claim, she was deprived of the opportunity to present reasons for participating in the selection of the impartial examiner. The Board remanded the claim for a new impartial review, with proper notification to the interested parties.

IMPARTIAL OPINIONS - NO SPECIAL WEIGHT IF NO CONFLICT OF MEDICAL OPINION

Rochelle Wenkowsky, Docket No. 97-2253, Issued May 19, 1999

In this case, the claimant returned to work in a light-duty capacity for four hours per day. By decision dated May 18, 1995, the Office determined that the claimant's earnings in this light-duty position fairly and reasonably represented her wage earning capacity.

The Office subsequently terminated all compensation on the grounds that the weight of the evidence established that the claimant did not have a continuing employment-related disability.

The Board noted that, although the Office based their decision to terminate compensation on the medical opinion of an impartial medical specialist, Dr. Mulle, no unresolved conflict existed on the issue of whether the claimant's employment-related condition had resolved.

A second opinion referral physician, Dr. Infranca, had stated that the claimant was capable of initially returning to work for four hours per day with restrictions. The claimant's treating physician, Dr. Goldberg, also released the claimant to return to work initially four hours per day with restrictions.

The Board further noted "While there may have been minor differences between Drs. Goldberg and Infranca as to the specific restrictions in a light-duty job, both of the physicians appear to agree that appellant continued to have an employment-related disability. Dr. Infranca's suggestion that appellant could return to full-time light duty after one week does not provide a reasoned opinion that appellant's employment-related disability or condition had ceased, and therefore his report cannot create a conflict on these issues under section 8123(a). Dr. Mulle is therefore not considered an impartial medical specialist whose opinion may be entitled to special weight, but rather a second opinion physician."

The Office's decision, with respect to the issue of continuing employment-related disability, was reversed.

LOSS OF WAGE-EARNING CAPACITY BASED UPON CONCURRENT EMPLOYMENT

Dim Njaka, Docket No. 96-1950, Issued June 18, 1999

The claimant, a mailhandler for the Postal Service, injured his upper back in September 1988, in the performance of duty. His claim was accepted for left shoulder and neck strain, and several herniated discs. He worked light duty until stopping work on December 19, 1988, and returned to work on January 21, 1989. Prior to the date of his injury, and until September 5, 1990, the claimant was also employed as a programmer analyst in a bank, with earnings of $20,000 per year. Beginning in January 1989, he was also self-employed as a computer consultant, with no reported earnings. Between an unknown date in 1990 and November of 1992, he worked for General Mills, with an annual salary of $37,000. He apparently continued his concurrent employment after November 1992, but the nature of that employment is not detailed in the decision.

The claimant stopped working for the Postal Service altogether on February 2, 1990, due to partial disability. A temporary job offer was made, and the Office terminated wage loss benefits after February 16, 1990, based on failure to demonstrate total disability. A hearings representative found that the job offered was only available for a short time, the claimant was still partially disabled, and he was entitled to compensation for a loss of wage-earning capacity based on actual earnings as of February 5, 1990, pending a formal LWEC decision. After confirming partial disability through a second opinion evaluation, the National Office modified the hearing representative's decision, and directed the District Office to pay compensation beginning February 5, 1990, using a constructed LWEC, considering the earnings in private industry.

After referral to the rehabilitation specialist, the District Office issued a decision finding no loss of wage-earning capacity as of February 5, 1990, based upon potential earnings for the selected position of programmer/analyst being higher than the contemporaneous salary for the Postal job held on date of injury. The claimant requested a hearing, and cited the Board's decision in Irwin E. Goldman (23 ECAB 6[1971]) as support for his argument that his concurrent employment could not be used as the basis for an LWEC. The hearing representative affirmed the Office's determination that the claimant had no loss of wage-earning capacity based on the constructed position of programmer/analyst, but that the Office should have reinstated compensation for total disability pending its determination, and provided due process through a prereduction notice. The hearing representative stated that the hearing decision would represent the prereduction notice. The District Office subsequently issued the final decision to reduce compensation to zero as of March 14, 1995. The claimant again requested a hearing, and the hearing representative affirmed the decision.

The claimant then requested an appeal, and the Board also affirmed the decision. They noted that the Goldman decision established the principle that earnings from dissimilar concurrent employment could not be included in the pay rate for compensation purposes, and consequently for establishing a wage-earning capacity. In this instance, the Office did not rely upon the actual earnings, but pursuant to section 8115 of the Act, chose a general position that represented his wage-earning capacity. Although the selected position was basically similar to the work he performed in private industry, it was selected in accordance with the factors outlined in section 8115, namely, the degree of impairment, usual employment, age, qualifications, and availability.

LOSS OF WAGE-EARNING CAPACITY BASED ON POTENTIAL COMMISSIONS

Barbara Pargament, Docket No. 97-1144, Issued June 7, 1999

The Office accepted the claimant's case, and she was placed in a six-month on-the-job training program for work as a real estate agent, property manager, and leasing agent. At the end of the training program, she started working full-time on a commissions-only basis. The rehabilitation counselor stated that expected earnings from commission for a real estate agent were $25,000 to $32,000 per year.

Using the $25,000 per year figure, the Office determined that the position of real estate salesperson fairly and reasonably represented her wage-earning capacity, and reduced compensation accordingly. In addition, they computed an overpayment based on that same amount for the period between when she started working and when the reduction in benefits was made. The claimant did not respond to the initial overpayment notification, and so the finding that claimant was with fault was made final, and the overpayment was withheld from continuing compensation at the rate of $300 each 28 days.

The Board found that basing the claimant's wage-earning capacity on the $25,000 figure was improper, as was the overpayment. They found that the Office did not follow the procedures outlined in FECA Program Memorandum No. 128 and the case of Donald R. Shively (22 ECAB 34 [1970]) for determining wage-earning capacity based solely on commission. In Shively, the Board stated:

Where a wage-earning capacity rating is to be made on the basis of commissions only, the claims examiner should obtain information as to the average number of weeks, or months it takes for a starting person to reach the level of commissions used as the basis of wage-earning capacity rating. Compensation should then be paid on the basis of the claimant's actual wage loss for that period of time. Thereafter, compensation should be paid on the wage-earning capacity rating which is predicated on the commission.

LOSS OF WAGE-EARNING CAPACITY - RETROACTIVE

Bridgett T. Davis, Docket No. 96-1951, Issued June 23, 1999

The claimant's injury occurred in 1983, and a recurrence beginning in May 1985 was accepted as related to the original injury. Although medical expenses were paid, no claim for compensation due to the recurrence was made until 1990. The claimant had several jobs as teacher and instructor on an intermittent basis beginning in August 1985. Her yearly earnings ranged from a low of $598.66 in 1989 to a high of $11,212.20 in 1991.

The Office issued a decision finding no loss of wages based on the selected position of secondary school teacher, for which the claimant was certified in the state of Florida. The salary for a secondary school teacher in the claimant's area of residence exceeded the concurrent wages for the job she held on date of injury.

The Board found that the case was not in posture for a decision, and remanded the case for further development and a de novo decision. When making a retroactive loss of wage-earning capacity determination, the Office must first determine whether there are actual earnings, and if so, must follow the procedures for determining loss of wage-earning capacity based on actual earnings, found in the Federal (FECA) Procedure Manual, Chapter 2-0814. In this case, the claimant had actual earnings, but these earnings were not discussed, nor was there a finding made that the earnings did not represent the claimant's wage-earning capacity, prior to proceeding with a rating based on a selected position.

MERIT REVIEW - ABUSE OF DISCRETION

Ronald H. Lunsford, Docket No. 97-1178, Issued April 26, 1999

In this case, a claim was filed for work-related aggravation of a preexisting emotional condition. After development, the office denied the claim on the basis that causal relationship was not established. Reconsideration was requested on the basis that the Office failed to clearly delineate whether fact of injury was accepted, and which elements of the employment were accepted as compensable. The request for modification was denied on the basis that the arguments submitted were not sufficient to warrant modification of the prior decision. The Office did state that it was accepted that the claimant experienced stress due to the volume of work.

The claimant again requested reconsideration, and described his fear and anxiety regarding his ability to carry out his duties, overwork, understaffing, overtime, and deadlines. The reconsideration was denied on the basis that the submitted evidence was cumulative in nature and insufficient to warrant a merit review. The claimant appealed the decision.

The Director filed a motion recommending that the case be remanded to the District Office for further development, because the claimant had established fact of injury and submitted medical evidence in support of causal relationship sufficient to require the Office to undertake further development. The Board remanded the case for further development, to be followed by a de novo decision.

The Office referred the case out for a second opinion evaluation. The statement of accepted facts listed understaffing (with no staff counselor) and a heavy caseload as compensable work factors. The second opinion physician examined the claimant and the records, and submitted a report to the Office in which he stated that the claimant's underlying condition had been aggravated "a little bit by his work-related condition," and that the aggravation had ceased.

The Office wrote to the second opinion physician regarding the duration of the temporary aggravation. They pointed out that there were a number of work-related incidents which were not considered to be compensable factors of employment, and asked the physician to clarify "whether the condition was aggravated solely by the two compensable factors of employment that were set forth in the statement of accepted facts." They also asked that if "the condition was aggravated solely by the two compensable factors of employment," he should state when the aggravation ceased.

The physician responded that the condition was not due to the two compensable employment factors, but that the death of a coworker seemed to be a much greater stress than overwork or understaffing. The Office affirmed their prior decision, denying the claim for lack of causal relationship.

The claimant requested reconsideration, asserting that the statement of accepted facts was incomplete, misleading, and contained improper and irrelevant material, and that the Office used an incorrect legal standard when they asked whether the claimed condition was based solely on the two accepted work factors. The claimant also stated that there was an unresolved conflict of medical opinion, and submitted another medical report from his attending physician. The Office denied reconsideration on the basis that the evidence submitted was immaterial, and that the new medical evidence was "vague" and "speculative" and therefore insufficient to create a conflict of opinion.

An appeal was filed, and the case was remanded to the Office for reconstruction and issuance of an appropriate decision. The Office subsequently again denied the request for merit review on the basis that the evidence submitted was repetitious and insufficient to warrant a merit review.

The Board found that the Office abused its discretion in denying the request for a merit review, and remanded the case for merit review. The Board found that the claimant had submitted new legal arguments with respect to the second opinion physician's report, and had also submitted new, relevant medical evidence. The Board noted also that the Office used an incorrect legal standard when they requested the supplemental report from the second opinion physician, because a claimant is not required to prove that work factors are the sole cause of a claimed condition. The Office had incorrectly asked the second opinion physician to state whether the condition was aggravated solely by the two accepted work factors.

PAY RATE FOR COMPENSATION PURPOSES - INCLUSION OF TRANSCRIPTION FEES

Daniel Shaw, Docket No. 97-1680, Issued April 14, 1999

The claimant in this decision was a court reporter whose claim was accepted, and who was entitled to compensation for loss of wages. The reported annual salary was $46,518 per year, but as much as an additional $60,000 per year was paid to the claimant for court transcriptions. He was required to provide transcripts in certain categories of cases, for which he was paid at rates set by the administrative body for the employing agency. The employee claimed that these additional amounts for transcripts should be included in his rate of pay for compensation purposes. The Office rejected the claim for inclusion of the transcription fees in his pay rate for compensation purposes on the basis that Office procedures did not provide for inclusion of such services.

The Board reversed the Office's decision. The claimant received payment for transcripts from both the Federal government and private individuals, and was permitted to receive such payment as part of his duties, in addition to his salary. Payments for the transcripts were for the product of duties he performed while in his salaried position.

The Board pointed out that even if one tried to argue that the claimant received payment for the transcripts though self-employment, not his regular duties, the "concurrent" earnings should be included in the rate of pay for compensation purposes because producing transcripts for private parties was similar to his regular duties of producing transcripts for the court (see Irwin E. Goldman, 23 ECAB 6 [1971]). The earnings from producing transcripts during the year prior to when his disability began should be included in his pay for compensation purposes.

PERFORMANCE OF DUTY - DEVIATION FROM ANTICIPATED ROUTE

Samuel Clay, Docket No. 97-2181, Issued May 11, 1999

In this case, the claimant was employed in a limited-duty assignment delivering mail to certain outlying employing establishment branches. He was involved in a motor vehicle accident on January 16, 1997, as he was returning to the main post office after delivering mail to a branch office.

The claimant initially explained that, due to traffic, he was not able to move into the appropriate lane to take the closest exit to the employing establishment so he continued on to the next exit. The claimant later alleged that he was hungry and had intentionally taken the second exit. He was in the wrong lane after he exited due to traffic.

On appeal, the claimant's attorney argued that he was never given a specific route to travel and had the discretion to use whatever route was most familiar to him and the most economical. The claimant's representative argued that the route taken by the claimant was the most familiar to him and he was, consequently, in the performance of his duties at the time of the motor vehicle accident.

The Board affirmed the Office's decision, stating, "The record in this case is clear that appellant had deviated from his anticipated route between Montgomery and Alexandria as he did not take the most direct route and did not take the appropriate exit for the route he chose. His reasons for being where he was, were inconsistent and unsupported by the facts of record. Because appellant deviated from the course of his employment for personal reasons and failed to regain his anticipated work route before sustaining his injury on January 16, 1997, his injury did not arise in the course of employment."

PERFORMANCE OF DUTY - "SPECIAL ERRAND" EXCEPTION

Asia Lynn Doster, Docket No. 96-688, Issued April 20, 1999

In this case, the claimant was involved in an motor vehicle accident which occurred on June 7, 1995, while she was driving to another "government building" to investigate a personal threat made against her.

Prior to adjudicating the claim, the district office conducted conferences with both the claimant and an employing agency supervisor. The supervisor indicated the claimant had received an anonymous threatening letter that was considered sufficiently serious to have the FBI and the employing agency investigate. The claimant was in leave status at the time of the motor vehicle accident and, to the best of the supervisor's knowledge, was not conducting any official business. The claim was denied on the grounds that the evidence of record failed to establish that the claimant had sustained an injury while in the performance of duty.

On appeal, the claimant's attorney argued that the claimant did not go directly to work on the date of the motor vehicle accident. Instead, she had contacted a colleague who was working as a law enforcement employee in a government building a short distance from her home. She met the employee, drove around the parking lot, and discussed the letter. She did not exit the vehicle due to her fear. After this conversation, the claimant proceeded to drive toward her home. However, she was hit broadside by a driver prior to her reaching her home. She assumed this incident was related to the threat made against her. The colleague from whom she sought guidance was the husband of the person scheduled to assume the position of manager of the facility where the claimant worked. The attorney contended that the claimant's actions could reasonably be interpreted as in furtherance of her employer's business.

The Board affirmed the Office's decision, finding, "The evidence of record does not establish that appellant was engaged on any special errand when she left her home. There is no evidence which would establish that appellant's journey on the date of injury was an integral part of any errand or special task either expressly or impliedly agreed to by her employer."

PERFORMANCE OF DUTY - WILLFUL MISCONDUCT

MaryAnn Battista, Docket No. 96-2501, Issued April 16, 1999

In this case, the claimant alleged that she injured herself on January 30, 1996, when she fell down a step and landed on both knees in the secured area of the mini-commissary. The employing agency controverted the claim, stating the claimant departed from her designated duty site without supervisory approval, and had entered an unauthorized office while conducting personal business at the time of the injury.

The evidence of record indicated that the claimant had been verbally advised on January 18, 1996, that she was not authorized to go in the mini-commissary. The record further indicated that the claimant was dropping off her daughter for work and looking for cigarettes in the mini-commissary. The claim was denied for the reason that the evidence of record failed to establish that the injury was sustained in the performance of duty.

The claimant requested reconsideration and submitted statements from herself and three witnesses which supported that on the date of injury, when she mentioned that she was going to the mini-commissary for a few minutes, she was asked to deliver several work-related items. She also stated that she was going to check on the availability of an item in response to a customer's telephone inquiry. After additional inquiry into the facts, the Office denied modification of the prior decision.

The Board found that the claimant was injured while in the performance of duty. The Board noted that the claimant had presented credible evidence in the form of witness statements that showed, at the time of the injury, she was engaged in activities which could be characterized as reasonably incidental to the conditions of her employment.

In addition, the Board held that the fact that the claimant entered an area where she was not authorized to go does not remove her from the performance of duty. "The mere act of disobedience of a rule or order does not necessarily place an employee outside the sphere of his employment so that he loses the benefits of the Act...the defense of willful misconduct has been used successfully in a narrow field of intentional violation of safety regulations. There is no evidence of record that the appellant's entry into the 'secured area' of the mini-commissary violated a specific safety rule of the employing establishment."

SCHEDULE AWARD - INCLUDING PREEXISTING IMPAIRMENT

Phillip R. Brueck, Docket No. 97-2487, Issued June 14, 1999

This claimant has an accepted partial meniscus tear. A prior schedule award decision for nine percent impairment of the left leg was remanded by the Board for further development. As part of that prior decision, the Board stated that Office should take into account the preexisting impairment of the left ankle when redetermining the award, even though the claim was not accepted for an ankle injury.

Upon receipt of the case from the Board, the office obtained a report from a Board-certified orthopedic surgeon. The report was referred to the Office medical advisor for review. The medical advisor found that the claimant had nine percent impairment of the leg, and that the orthopedic surgeon's calculation of 34 percent impairment incorrectly included 21 impairment for the non-work-related ankle condition, and a collateral ligament injury, which did not exist. The office denied the claim for an award above the nine percent that had already been awarded.

The Board set aside the decision and remanded the case for further action. They noted that there was a discrepancy between the examining orthopedist and the Office medical advisor regarding whether the ligament laxity was mild or moderate, and what role, if any, the collateral ligament played in this determination. The Board also noted that the Office had failed to heed their previous instruction to include the preexisting impairment of the ankle in the rating. The FECA does not provide for a schedule award of the knee alone, but of the leg. All impairments of the leg must be considered in determining a schedule award.

SUITABLE EMPLOYMENT - TERMINATION OF BENEFITS

Robert J. Cook, Jr., Docket No. 97-2171, Issued May 13, 1999
Nathaniel Davis, Docket Nos. 97-1565 & 97-2368, Issued May 13, 1999
Alicia A. Diaz, Docket No. 96-2414, Issued May 17, 1999
Regina F. Holt-Anderson, Docket No. 97-2084, Issued May 25, 1999
Kewel S. Khalsa, Docket No. 97-2404, Issued June 15, 1999
Laura Penzo, Docket No. 97-1842, Issued May 11, 1999
Onnie Pickens, Docket No. 97-1637, Issued May 14, 1999
Deborah E. Scott, Docket No. 97-2236, Issued May 12, 1999

In all of these decisions, the Board reversed the Office's decisions to terminate benefits due to refusal of suitable employment, and in most instances, benefits for total disability were reinstated retroactively.

Section 8106(c) of the FECA provides:

A partially disabled employee who-

(1) refuses to seek suitable work; or
(2) refuses or neglects to work after suitable work is offered to, procured by, or secured for him;

is not entitled to compensation.

Section 8106(c) permits the Office to terminate compensation benefits when a suitable job offer is refused. The process of determining a job's suitability is complex, and involves coordination with the employing agency and the treating or examining physicians. Because termination of compensation is such a severe penalty, application of sanctions under section 8106(c) must be performed with utmost care and consideration for the employee's rights.

The Office's errors in the decisions noted above fall into two broad categories. In the first group, which includes the decisions in Cook, Holt-Anderson, Khalsa, and Pickens, the Office notified the claimant that the job was suitable, and allowed 30 days for acceptance of the job or explanation of reasons for refusing the job. When the claimants responded within 30 days of the initial notification, giving reasons for refusing the job, the Office proceeded to find the reasons unacceptable and erroneously terminated benefits without notifying the claimant that the reasons for refusal were not accepted, and giving them an additional period of time within which to accept the job without penalty. Once the Office has made a final decision on the suitability of the job (i.e. after the claimant's reasons for refusing the job have been received and considered), the claimant must be so notified, and afforded a final chance to accept the job.

The other grouping of errors involved deficiencies in the medical evidence. In both Davis and Penzo, there were conflicts in the medical evidence concerning the claimant's ability to perform the offered job. These conflicts should have been resolved prior to finding the job suitable and terminating benefits. Additionally in Davis, the description of the physical requirements of the offered job were not sufficiently detailed to make a suitability determination. In Scott, medical evidence from several physicians supported that the claimant was able to work, but not with her previous employer, the Postal Service, and yet the offered job was with the Postal Service. In Holt-Anderson, the medical evidence that was alleged to support the suitability of the job was either speculative, or recommended further evaluation prior to a return to work. In Diaz, the claim was accepted for both orthopedic and psychiatric conditions, but the job suitability determination was made based upon orthopedic limitations only. The medical evidence of record contained a second opinion psychiatric report outlining work-related job restrictions that were more severe than those contained in the offered job, and no psychiatric specialist had found the offered job suitable.

Please note that during the period in which the Board reversed so many section 8106(c) terminations, there were also many decisions that were affirmed on the same issue.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-06

January 14, 2000

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 6.75 percent for the period January 1, 2000 through June 30, 2000.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 2000.

Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

Attachments

Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

ATTACHMENT 1 - Prompt Payment Interest Rates

PROMPT PAYMENT INTEREST RATES
Dates	Rate
1/1/00 - 6/30/00	6.75%
7/1/99 - 12/31/99	6.5%
1/1/99 - 6/30/99	5.0%
7/1/98 - 12/31/98	6.0%
1/1/98 - 6/30/98	6 1/4%
7/1/97 - 12/31/97	6 3/4%
1/1/97 - 6/30/97	6 3/8%
7/1/96 - 12/31/96	7.0%
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%

ATTACHMENT 2 - DMS Interest Rates

DMS INTEREST RATES
Dates	Rate
1/1/00 - 12/31/00	5%
1/1/99 - 12/31/99	5%
1/1/98 - 12/31/98	5%
1/1/97 - 12/31/97	5%
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-07

Feburary 25, 2000

SUBJECT: Code changes for the Departments of the Army, Defense, Labor, State, Transportation, and Veterans Affairs, and the U.S. Postal Service and Other Establishments, Case Management Users' Manual, Appendix 4-7

The Case Management Users' Manual is being updated and revised to reflect multiple changes, including the addition of several new codes. For the Department of the Army, new code 3335 has been added to reflect the creation of a newly separate Army Test and Evaluation Command, formerly part of an existing command. For the Department of Defense, two agencies have been renamed, and a different name has also been given to a Department of Labor agency. For the Department of State, chargeback codes 1335 and 1336 have been added to reflect injuries reported by employees of two newly created Bureaus of the Department of State. For the Department of Transportation, chargeback code 2538 has been added to reflect injuries sustained by employees of the newly created Federal Motor Carrier Safety Administration. For the Department of Veterans Affairs, chargeback code 4281 have been added to reflect injuries reported by employees of the Charleston, South Carolina Consolidated Mail Order Pharmacy (CMOP). For the U.S. Postal Service, chargeback code 5109 has been added to reflect injuries reported by employees of the Mid-Atlantic Area office. Finally, in the Other Establishments, chargeback code 1409 has been added to reflect the establishment of the Presidio Trust in San Francisco, California, chargeback code 1492 has been added to reflect a request that U.S. Capitol Police Senate cases be listed separately from U.S. Capitol Police House cases, the listing for the U.S. Information Agency (USIA) has been replaced by a listing for the International Broadcasting Bureau (IBB) to reflect the abolition of USIA in October, 1999, and a reference to the Arms Control and Disarmament Agency has been deleted to reflect the recent abolition of that agency.

Because the procedures for adding new chargeback codes to the Case Management File have changed, ADP Systems Managers no longer need to add the chargeback codes listed below; they have been added by National Office staff. Changes in the titles for employing agencies which already exist in the agency address field will have to be added to an individual agency address.

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

_________________________________________________________________

Chargeback codes
Trans- action type	Code	Dept.	Agency
Add	3335	Army	Test and Evaluation Command
Add " "	1335 1336	State " "	Bureau of Arms Control & Intl Security Bureau for Public Diplomacy & Public Affairs
Add	2538	DOT	Federal Motor Carrier Safety Administration
Add	4281	VA	Charleston (SC) CMOP
Add	5109	USPS	Mid-Atlantic Area Office
Add " "	1409 1492	Other Est " "	Presidio Trust U.S. Capitol Police - Senate
Change	3015	Defense	from: Defense Investigative Service to: Defense Security Service
" "	3016	" "	from: Defense Security Assistance Agency to: Defense Security Cooperation Agency
Change	1122	Labor	from: Office of the American Workplace to: Office of Labor-Management Standards
Change	1449	Other Est	from: U.S. Information Agency to: International Broadcasting Bureau
Change	1488	" "	from: U.S. Capitol Police To: U.S. Capitol Police - House
Delete	1483	Other Est	Arms Control and Disarmament Agency

Distribution: List No. 5 - Folioviews Groups C and D
(All Supervisors, Index and Files Personnel, Systems Managers and Technical Assistants)

Note: Immediate distribution to chargeback coding personnel is essential.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-09

April 15, 2000

SUBJECT: Compensation Payments--2000 Census

For the 2000 Census, the Bureau of the Census is employing approximately 650,000 individuals in 476 Local Census Offices (LCOs) throughout the U.S. Most of the employees in the LCOs are enumerators and crew leaders on temporary not-to-exceed 180-day appointments.

All employees are paid on an hourly basis. Wages in the Regional Census Centers and the LCOs vary by geographical area. Information about computing compensation for these employees may be found in FECA PM 2-0901.9a.

Claims staff are reminded that special procedures apply to third party injuries sustained by certain Census workers, as described in FECA Bulletin 99-30.

Any questions about pay rates may be referred to the Department of Commerce, Workers' Compensation Center, at (202) 273-3325, ext. 141 or 151.

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-10

May 30, 2000

SUBJECT: Selected ECAB Decisions for July - September 1999

The attached is a group of summaries of selected ECAB decisions for the above quarter. The decision summaries are provided to point out novel issues not frequently addressed by the Board, or commonly occurring errors by the Office which need to be emphasized.

Included in this FECA Circular are summaries of a decision terminating benefits under § 8148(a); three decisions on performance of duty (one in which the issue was the application of "the personal comfort doctrine" to flexiplace working arrangements); three decisions on loss of wage-earning capacity; several decisions addressing refusal of suitable work; and others. Should you find, upon reviewing a decision summary, that it affords guidance in a topic that you are addressing, do not fail to obtain the ECAB decision in its entirety for your thorough review.

DEBORAH B. SANFORD
Acting Director for
Federal Employees' Compensation

Distribution: List No. 1 - Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

IMPARTIAL OPINIONS - OPINION BASED ON AN INCORRECT STANDARD

George Ralston, Docket No. 97-1939, Issued July 21, 1999

The Board's decision in this claim is unusual in that they remanded the case for a fifth impartial medical opinion.

The claimed condition was a myocardial infarction. The Office denied the claim, based on the opinion of the first impartial medical examiner (IME), Dr. Turkel. The claimant appealed the decision, and the Board remanded the case for a second IME, finding that the Dr. Turkel's report was insufficiently rationalized to represent the weight of the medical opinion in the case.

The Office referred the claimant and case to a second IME, Dr. Beaver. Dr. Beaver stated that the claimant's myocardial infarction "was not caused by, precipitated by, or aggravated by his employment." He attributed the development of claimant's cardiac problems to his hypertension, gender, high cholesterol, family history, diabetes and use of tobacco. He stated that the claimant had trouble understanding the internal versus external nature of stress, and that his job demands were not unusual or excessive, but that his ability to cope with the job demands was an issue.

The Office again denied the claim, based on Dr. Beaver's report. The claimant requested an oral hearing, and stated that Dr. Beaver's report was based on an incorrect legal standard and could not represent the weight of the medical evidence. The hearing representative agreed that Dr. Beaver applied an incorrect legal standard by requiring unusual job stresses, and remanded the case for a third IME.

The Office obtained a third IME from Dr. Abovich. Dr. Abovich concluded that the claimant's risk factors of smoking, hypertension and hyperlipidemia were "overwhelmingly...more important than the stress suffered at his work although there is a possibility that work-related stress aggravated or exacerbated cardiovascular problems." The Office denied the claim based on Dr. Abovich's report.

The claimant requested a review of the written record. The hearing represented directed the Office to obtain a supplemental report from Dr. Abovich, because his opinion on causal relationship was speculative. If the supplemental report was not sufficiently clear, the Office was to obtain another IME. The Office obtained a supplemental report from Dr. Abovich, which still not clear on the issue of causal relationship, and so a fourth IME from Dr. Alagona was obtained. Dr. Alagona attributed the claimant's myocardial infarction to nonoccupational factors because his "employment status did not appear to be excessive with regard to either physical or emotional demands or concerns." The Office again denied the claim.

The claimant requested another hearing, and again asserted that the IME (this time, Dr. Alagona) based his opinion on an incorrect legal standard that his job demands be physically or emotionally excessive. The hearing representative affirmed the Office's decision, and found that Dr. Alagona did not base his opinion on an incorrect legal standard.

The Board disagreed, and remanded the case for a fifth IME. They reiterated the principle that there is no requirement for work conditions to be unusual or excessive in order to establish compensability. If ordinary and normal working conditions cause or aggravate a condition, they are sufficient to satisfy the causal relationship test. Dr. Alagona's report suffered from the same defect as those of Drs. Beaver and Abovich.

Obtaining impartial medical opinions is a time-consuming process. When it is necessary to obtain more than one such examination, every effort should be made to ensure that subsequent IMEs do not repeat the errors of the first, and if the errors are repeated, they should not be overlooked or discounted.

LOSS OF WAGE-EARNING CAPACITY - MODIFICATION

Mildred Alder-Johnson, Docket No. 97-1972, Issued July 19, 1999

In this claim, the Office accepted low back injury and surgery as work-related. The claimant, a former distribution clerk, underwent vocational rehabilitation, earned a master's degree in social work, and obtained work as a counselor for a county agency. On July 27, 1979, the Office found that her actual earnings fairly and reasonably represented her wage-earning capacity and reduced her compensation accordingly.

The claimant received MSWR certification after a period of six years, and also obtained further training in public speaking. She opened her own private practice in 1991. On January 11, 1996, the Office modified the loss of wage-earning capacity determination to reflect no additional loss of wage-earning capacity. This decision was based on the claimant's having undergone additional rehabilitation, and her demonstrated ability to work full-time as a social worker/therapist. Because she was self-employed, the Office based the calculation of her wage-earning capacity on a labor market survey of social worker/therapists in her area, rather than her earnings.

The Board found that the case was not in posture for a decision. The Board agreed with the Office that the claimant was further vocationally rehabilitated after 1979. They also noted that she was employed in a different job, and the Office was required by its own procedures (FECA PM 2.814.11) to determine whether the new job paid at least 25 percent more than the concurrent pay of the job in which she was rated. In this case, the Office did make such a comparison, but found that the earnings in the new position did not exceed the earnings of the previous position by more than 25 percent. They then proceeded to use earnings derived from a labor market survey of similar positions. This approach is not in accordance with existing procedures. In addition, where a loss of wage-earning capacity is based on earnings from self-employment, deductions should be made from the gross earnings for direct expenses, such as cost of equipment and maintenance, insurance, taxes, wages of other employees, and other office expenses. The case was remanded for a recalculation of the claimant's adjusted actual earnings, and a determination of whether those adjusted earnings represented more than a 25 percent increase over her previous earning capacity.

LOSS OF WAGE-EARNING CAPACITY - SELF-EMPLOYMENT

Louis F. Bertoncini, Docket No. 97-2165, Issued July 12, 1999

The Board's decision in this case illustrates another instance in which a loss of wage-earning capacity based on self-employment was calculated incorrectly.

The claimant received an overpayment of compensation because he worked as a real-estate agent while continuing to receive compensation for total disability. When the Office calculated the amount of the overpayment, they used an incorrect rate of pay, and also computed the loss of wage-earning capacity based on the claimant's gross earnings from self-employment. The Board quoted from their prior decision in Thomas F. Jordan, 47 ECAB 382 (1996), stating, "A self-employed claimant has expenses associated with conducting business which must be paid from the receipts of the business. It, therefore, would be inequitable to calculate a loss of wage-earning capacity on the basis of a claimant's gross earnings from self-employment as that would not allow for the costs of conducting the business."

The case was remanded for recalculation of the overpayment.

LOSS OF WAGE-EARNING CAPACITY – MODIFICATION

Penny L. Baggett, Docket No. 97-2190, issued September 28, 1999

In the above case, the Board found that the Office's reduction of the claimant's benefits based on a Loss of Wage-earning Capacity (LWEC) was properly computed in June 1996. However, it held that modification of the LWEC in February 1997 was erroneous, as the Office had not discharged its burden of proof to take such action.

The claimant was a part-time relief rural carrier who was in a vehicle collision that resulted in an aggravation of her degenerative disc disease. Three and a half years later, the claimant returned to work as a part-time limited duty casual clerk. Five years later the claimant accepted a temporary rehabilitation position of modified casual clerk, working approximately 25 hours a week for $11.83 per hour. The Office compared the new job with her date of injury position in which she had worked 33.88 hours per week and was paid $9.36 per hour and thus obtained the claimant's loss of wage-earning capacity using the Shadrick formula (method adopted from Albert C. Shadrick, 5 ECAB 376 [1953]). The Office determined that the position fairly and reasonably represented her wage-earning capacity and reduced her benefits accordingly.

However, six months thereafter, the employing agency retroactively raised the claimant's pay rate to $16.07 per hour based upon a special exception, and asked the Office to modify its LWEC determination based on the corrected salary. On recomputation of the WEC determination, the claimant was found to have no loss of wage-earning capacity. The Board found that Office failed to discharge its burden of proof to modify the claimant's wage-earning capacity. The Board referred to a similar decision, Ronald M. Yakota,1 in which it reiterated the established conditions for modifying an LWEC:

"Once the wage-earning capacity of an injured employee is properly determined, it remains undisturbed regardless of actual earnings or lack of earnings. 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. The burden is on the Office to establish that there has been a change so as to affect the employee's capacity to earn wages in the job (previously) determined to represent his earning capacity..." The Board explained that an increase in pay by itself, is not sufficient to support that there has been a change in the employee's capacity to earn wages. It stressed that, absent a showing of additional qualifications obtained by the employee through training, it is improper to make a new LWEC determination based on increased earnings. Furthermore, the Board pointed to the Office's own procedures which specifically provide guidelines for the Office meeting its burden for modification of a loss of wage-earning capacity.2 The Board pointed out that the Office noted that the claimant's pay rate had increased but failed to determine whether she had undergone training or vocational rehabilitation to warrant the current salary. The decision by the Office which modified the LWEC resulting in a loss of entitlement to monetary benefits was reversed by the Board.

RECONSIDERATION - TIMELINESS FOR SUSPENSIONS UNDER SECTION 8123(D)

Frank W. Manning, Docket No. 97-1505, Issued August 4, 1999

In this claim, after unsuccessful attempts to obtain updated medical information, the claimant was scheduled for a second opinion evaluation on July 1, 1994. The claimant was notified that refusal to submit to or obstruction of the examination would result in suspension of compensation until the obstruction stopped. The claimant did not go for examination, and did not respond to the notification, and the Office suspended compensation by a decision dated August 9, 1994 on the basis of the provisions of 5 U.S.C. 8123(d).

The claimant requested reconsideration by letter dated July 20, 1996, stating that he had no knowledge of the August 9, 1994 decision until July 5, 1996, when his wife notified him that they were in financial difficulty because he had not received compensation since August 1994. The claimant submitted a medical report from his physician dated July 22, 1996, and indicated that he would be willing to comply with any OWCP requests necessary to remove the obstruction. The Office denied reconsideration on the basis that the request was not timely filed, and the evidence submitted did not present clear evidence of error.

The Board found that the Office's suspension of benefits was proper, but that the Office improperly neglected to act on the claimant's willingness to comply with the direction to undergo a second opinion evaluation. Pursuant to the regulations at 20 C.F.R. 10.323, there is no time limitation on a claimant's willingness to comply with the provisions of 5 U.S.C. 8123(d). The Board vacated the Office's reconsideration decision and remanded the case so the Office could address whether compensation should be reinstated.

SUITABLE EMPLOYMENT - REFUSAL FOR RELIGIOUS REASONS

Marvin L. Wyatt, Docket No. 97-2118, Issued August 19, 1999

The claimant, who had an accepted knee condition, was receiving compensation benefits for total disability. The employer offered a job as a modified carrier, which was approved by his attending physician. The Office notified the claimant that the offered job had been found to be suitable, and was given 30 days to accept the job or provide reasons for refusing it. The claimant did not respond, and the Office subsequently terminated compensation on the basis that he refused an offer of suitable work.

The claimant's representative requested reconsideration of the termination, stating that the work hours of the offered job (9:30 p.m. to 6:00 a.m. with Wednesday and Thursday nights off) would "interfere with the practice of his religion." The claimant was a minister in his church. The Office denied the request for reconsideration on the basis that that the evidence submitted in support of the application for review was irrelevant, and therefore insufficient to warrant merit review of the prior decision.

In affirming the Office's decision, the Board reiterated the three acceptable reasons for refusing an offer of work: (1) withdrawal of the offered position; (2) medical evidence establishes that the claimant's condition has worsened to the point where he or she can no longer perform the duties of the offered job; and (3) the claimant has accepted other work that fairly and reasonably represents his or her wage-earning capacity. The Board cited two previous decisions in which religious beliefs were discounted as the basis for overturning Office decisions. In Frank Braxton McElroy, 29 ECAB 806, 812 (1978), the claimant's failure to file a timely claim was not excused by his religious belief that prayer would cure his hearing loss. In Robert Gray, 39 ECAB 1239, 1244 (1988), the claimant's inability to fulfill religious responsibilities due to a conflict with scheduled work hours was not a compensable factor of employment in a psychiatric claim.

It should also be noted that the situation in this claim differed from those in a group of decisions discussed in FECA Circular 00-4, in that the claimant did not respond to the initial notification of suitability, and so termination without providing an additional period of time for the claimant to accept the job was appropriate.

SUITABLE EMPLOYMENT - CLAIMANT ALREADY WORKING

Dorothy L. Gatson, Docket No. 99-260, Issued July 20, 1999

This claim was accepted for lumbar radiculopathy. The claimant returned to a limited-duty job for four hours per day on July 5, 1995. In November 1995, she increased her hours to five per day. In November 1996, her hours increased to six per day.

The medical evidence supported that the claimant could work six hours per day, with restrictions. On February 4, 1997, the employer offered the claimant a permanent light-duty job as a modified city carrier, six hours per day. The Office found the job suitable, and so notified the claimant, allowing 30 days for acceptance of the job or reasons for refusal.

The claimant refused the job on the basis that it would require her to continually drive and to enter and exit the vehicle. She also stated that the routes involved were not such that they allowed sitting while casing. She noted that her current position allowed her to sit with a back support while casing, and that beginning March 1, 1997, she would be able to work 8 hours per day in her current position. On February 24, 1997, her attending physician released her to work eight hours per day, with restrictions. The claimant returned to full-time work on March 8, 1997.

The Office notified the claimant that her reasons for refusing the job offer were not acceptable, and gave her an additional 15 days to accept the position. The Office subsequently terminated compensation benefits for failure to accept suitable employment. A hearing representative affirmed the Office's decision.

The Board found that the claimant had not shown that the offered job was not suitable. However, the claimant also refused the job offer on the basis that she was already working, and that she was increasing her work hours to eight per day, rather than the six noted in the job offer. The Office did not consider whether the job that the claimant was already performing represented her wage-earning capacity. Due to the Office's failure to consider this reason for refusing the job offer, termination of compensation was not justified, as the record does not establish that the claimant refused to perform suitable work. The office's decision was reversed.

REFUSAL OF SUITABLE WORK, § 8106(c) PENALTY PROVISION REVERSAL

James T. Johnson, Docket No. 99-276, issued September 24, 1999;

In this case, the Office had terminated benefits in view of the claimant's refusal to accept "suitable employment," and the decision had been affirmed by the Branch of Hearings and Review. The Board ruled that the Office had failed to discharge its burden to terminate benefits, because it had not clearly resolved the question of whether the claimant could perform the job offered in view of his work injury-related restrictions.

The case had been accepted for cervical strain, mild cerebral concussion, contusion of the scalp, and post-traumatic headache syndrome. The claimant's attending physician was not in favor of the location of the position offered due to the excessive light, noise and fumes, and the inappropriate length of the time needed to commute. A second-opinion specialist felt that the job should be tried, and that the claimant's inability to travel was subjective, and could be remedied by engaging an addiction specialist who could assist in reducing the claimant's narcotic medications. The claimant accepted the job offer in December 1993, but failed to report in January 1994 when expected to do so.

The Office reiterated its finding of suitability on May 30, 1996. Then the claimant explained that he had been hospitalized in 1994 and 1995 to accommodate the change in his medications. Since he would again be hospitalized in July 1996, his attorney proposed that the Office re-evaluate the claimant after that hospitalization. Subsequently, the Office notified the claimant that his refusal was not justified, allowed him an additional 15 days to accept the position, and then terminated compensation in October 1996. That decision was affirmed by Hearings and Review in October 1997.

The Board reversed the decisions, returning the claimant to the rolls, on the grounds that the Office had failed to meet its burden to terminate compensation. The issue was not whether the claimant had been allowed due process, but rather whether the weight of the medical evidence established that the job offered was suitable, considering the work restrictions imposed by the claimant's accepted condition.

The Board pointed out that, in view of section 8106(c) functioning as a penalty provision, barring further entitlement to compensation when an employee refuses an offer of suitable work; it should be narrowly construed. That is, the question of whether or not the claimant has refused suitable work must be clearly settled. Moreover, whether an employee has the physical ability to perform the job offered is a medical issue which must be resolved by medical evidence. Therefore, where a conflict in the medical evidence exists, the Office's burden includes resolving the conflict by referring the claimant to a qualified impartial medical specialist. On remand of the case, the Board directed that the conflict in medical opinion between the claimant's treating psychiatrist and the second opinion specialist be resolved through referral of the claimant to an appropriate impartial specialist.

TERMINATION FOR REFUSAL OF SUITABLE WORK UNDER 8106(C) AFFIRMED

Yvonne M. Gibson, Docket 99-389, issued September 27, 1999; Terry L. Edmonds, Docket 98-1970, issued September 23, 1999; Linda Musick, Docket 98-19, issued September 15, 1999; Dennis G. Merrill, Docket 97-24, issued September 16, 1999

The above cases involved situations in which the Office terminated benefits due to the claimant's refusal to accept an offer of suitable employment, and where the Board affirmed the Office's decision. In the case of Gibson, the claimant's attending physician's reports supported that she could not return to work at the Postal Service in any capacity due her inability to stand or sit for prolonged periods. The Office initially found that the second-opinion specialist's opinion outweighed that of the attending physician, and advised the claimant that the offered position was found to be suitable. When the claimant failed to accept the position within 30 days, compensation for wage loss and permanent impairment was denied. Subsequently, a hearing representative found that the second-opinion referral by the Office had resulted in a conflict in the medical evidence. The conflict was properly resolved by an examination and review of the case by a board-certified impartial specialist in Orthopedics.

The Merrill case was another in which referral to a second-opinion specialist led to a conflict in the medical evidence as to whether the claimant was capable of performing the duties of the offered position. The job offered by the employing agency was based on the restrictions outlined by the referee medical specialist that had been obtained. In both Gibson and Merrill, the Board emphasized that the question of whether an employee is physically capable of performing the job is one that must be resolved by medical evidence. In settling the question of suitability satisfactorily, the Board found that the Office had discharged its burden to terminate benefits in both of these cases.

In the Musick case, the claimant advised that she was unable to perform the duties of the modified light duty position offered due to a deterioration in her condition. The duties of the position offered were in direct correspondence to the restrictions previously outlined by the claimant's physician, and the Office advised the claimant that it was considered suitable. Also, the Office indicated that in view of the claimant having moved more than 50 miles away since her separation from her former employment, relocation expenses would be covered by OWCP. The claimant declined to accept the offer and, consequently, her benefits were terminated. When the ECAB affirmed the decision, it pointed out that the question of whether the claimant was able to perform the duties of the position was a medical one; that the claimant's statement that she could not tolerate the duties was not sufficient; and that she had failed to provide an opinion from her attending physician which supported that she could not perform the duties of the offered position. It was noted that the Office had met its burden to establish the work offered was suitable.

In Edmonds, the claimant used the medical reports of his treating osteopath to support his claims that he was neither physically nor emotionally capable of the modified postal carrier position offered to him by his former employer. The treating physician also recommended that the claimant be treated at a pain clinic and that he participate in a work hardening program. Her reports, however, failed to adequately detail the claimant's findings upon examination or diagnostic testing, or to explain the need for work hardening or for treatment at a pain clinic. Similarly, her reports failed to establish that the claimant was physically incapable of performing the modified carrier position, which was essentially sedentary with the option to stand as necessary.

The Office relied on the opinion of a board-certified specialist in physical medicine and rehabilitation to help determine whether the claimant was physically capable of performing the job offered. The opinion of a board-certified psychiatrist was used to establish that the claimant's emotional state did not prevent him from performing the duties of the position. Even the claimant's treating psychiatrist agreed that while returning the claimant to work would increase his anger and frustration, this did not mean that he was psychiatrically disabled from performing the duties of the modified carrier position.

In all of the four decisions above, the Board ruled that the Office had discharged its burden satisfactorily by clearly settling the question of suitability, and by affording the claimant due process prior to termination of compensation.

CAUSAL RELATIONSHIP - APPORTIONMENT OF CAUSAL FACTORS

James M. Taylor, Docket No. 97-2497, Issued July 22, 1999

The Board's decision in this case serves as a reminder that in claims where both work-related and non-work-related factors are contributory, there is no requirement that the degree of disability attributable to each set of factors be delineated.

The claimant, a letter carrier, claimed a right elbow and shoulder condition, for which he required surgery on December 30, 1996. He attributed his condition to repetitive movements required case mail and deliver mail. The Office denied the claim on the basis that the evidence failed to establish that his condition was causally related to employment factors. They noted that the medical evidence did not support the relationship of the diagnosed conditions to work factors, and that the claimant had noted the onset of right shoulder pain in July after painting his entire house.

The claimant requested reconsideration, and submitted a report from his physician, Dr. Curtis. In this report, Dr. Curtis stated that when surgery was performed, he found that a chronic tear of the rotator cuff. He associated this finding with frequent use of the arm at or above shoulder level. He stated that changes found on the pathology report indicated that the process has been ongoing for a long time, and he related the changes to the claimant's casing mail at work. He stated that the condition predated the house painting in July, and that "the overuse in July 1996 simply made the discomfort refractory to conservative treatment."

The Office denied modification of prior decision, stating that the claimant sought no treatment for his condition until October 1996, which was after he painted his house. They stated that even if the claimant did have a degenerative condition of the shoulder attributable to his work, it was of no clinical significance until after he painted his house, and that the need for treatment was occasioned by the non-work factors only.

The Board found that the case was not in posture for a decision, as there was an uncontroverted inference of causal relationship, and remanded the case to seek clarification from Dr. Curtis. They stated that Dr. Curtis provided two reasons for the claimant's shoulder condition: frequent use of the arm at or above shoulder level while working; and house painting in July, 1996. Dr. Curtis did not state which of the two factors contributed to the condition more. Causal relationship does not denote a single causal factor, and does not preclude aggravation of preexisting condition by employment factors. The Office stated that Dr. Curtis noted a mix of work and non-work factors, but did not apportion the degree of contribution made by the work factors. The Board has previously held that this type of apportionment is inappropriate; if work factors contribute in any way to the development of the condition, the condition would be considered employment-related.

PERFORMANCE OF DUTY - APPLICATION OF THE PERSONAL COMFORT DOCTRINE TO FLEXIPLACE WORKING ARRANGEMENTS

Julietta M. Reynolds, Docket No. 97-695, Issued August 13, 1999

This claimant in this case was injured while working at home while under a flexiplace agreement with her employer. While she was working at home, it started getting cold, and the heat failed to come on when she adjusted the thermostat. She contacted her husband, who advised her to contact the oil company. She called the oil company and received instructions on how to restart the furnace. She then went to the basement where the furnace was located. While going back up the stairs, she fell and injured her right leg and left foot.

The employer controverted the claim on the basis that she was not in the performance of duty at the time of injury. She did not notify her supervisor when her workday was interrupted by an emergency. She was not directed to repair the furnace, and the furnace repair did not relate to her official duties or the mission of the employer.

The Office denied the claim, finding that the claimant had deviated from the course of her employment for personal reasons. A hearing representative subsequently found that the claimant's injury was covered under the personal comfort doctrine, in that she was injured while trying to raise the temperature of her work environment to a comfortable level. The Office was directed to accept the claim.

The Office Assistant Branch Chief reopened the claim under 5 U.S.C. 8128(a) and vacated the decision of the hearing representative. He noted that the personal comfort doctrine pertains to injuries that occur on the employer's premises. He further stated:

In the traditional type of workplace situation where work is performed on the employer's premises, the employer can exercise complete control of the work environment and can maintain it in a safe manner so as to reduce the likelihood of workplace injuries. One of the legal consequences of providing employment under these circumstances is the "personal comfort doctrine," which has evolved to provide coverage under workers' compensation statutes for injuries that occur on the employer's premises while the employee is ministering to his or her personal comfort instead of engaging in activities that further the employer's business.

However, some modern workplace situations, such as the flexiplace agreement by which the claimant in this case performed at least some of her work at home, are so radically different from the traditional workplace situation described above that legal concepts like the "personal comfort doctrine" cannot be fairly applied to find coverage for injuries that occur under these circumstances due to the fact that it is the employee, not the employer, who is directly responsible for maintaining the work environment in a safe manner. As such, an injury sustained while the employee is maintaining the workplace environment at home instead of performing his or her actual work duties should not be considered the responsibility of the employer.

...the majority rule in the states is that only those injuries which occur while an employee is actually performing his or her work at home will be found to occur "in the course of employment." Accordingly, there is no flexiplace equivalent to the "personal comfort doctrine" that can be used to extend coverage under the FECA to the claimant's...injury sustained as a result of repairing her furnace at home.

The Board affirmed the rescission of the acceptance, and quoted extensively from FECA Bulletin No. 98-9, issued June 5, 1998. They found that the Office's exercise of discretion in this case, to exclude the personal comfort doctrine from flexiplace situations, did not conflict with the intent of the FECA.

PERFORMANCE OF DUTY

George Patrick Semonco, Docket No. 97-1760, issued September 22, 1999; Janet R. Landesberg, Docket No. 98-1812, issued September 10, 1999

In the Semonco decision, which the Board set aside stating it was not in posture for a decision, the claimant (a letter carrier) alleged that he had been intimidated by a postal patron and suffered an emotional condition. This patron had previously assaulted him with a gun, and the claimant had agreed to testify at the postal patron's sentencing hearing. The Office initially denied the case due the claimant's failure to timely submit requested evidence, and a subsequent decision rejected the claim for the appellant's failure to submit sufficient evidence to support his claim of intimidation.

However, the Board pointed out in its decision that the claimant's participation in the sentencing hearing constituted a specially assigned work duty arising out of his federal employment. The Board added that this case was distinct from Blondell Blassingame (48 ECAB__[Docket No. 95-2779, issued October 9, 1996]), and similar cases in which an employee's participation in EEOC proceedings will not generally afford coverage under the Act. It emphasized that such proceedings as EEOC hearings are generally for the benefit of the employee, while the legal hearing in which the claimant had participated actually provided a benefit to the employer in securing the safety of its employees while on their assigned postal routes. The Board ordered that upon return of the case to the district office, further medical development be pursued; specifically, that a Statement of Accepted Facts be prepared and the case referred to an appropriate specialist to consider the issue of causal relationship.

The Landesberg case involved a motor vehicle accident of an administrative law judge who had been authorized eight hours of official time to attend a seminar. The seminar was to be held in a city that was away from her place of employment and her weekday residence, but within commuting distance of her townhome that she owned with her husband. The employee was paying the cost for the seminar, and the employer was not reimbursing her for travel or any other expenses. The case was denied on the basis that the injury did not occur in the performance of duty, and modification was denied in two subsequent decisions.

The claimant argued that she was in a travel status from the time she left her duty station on the day before the seminar she had planned to attend. The location where the auto accident occurred was in a parking lot of a take-out restaurant in the same town as her townhome. Also, the accident occurred shortly after a brief stop at the townhome, and the day before the seminar was to take place. The Board ruled that the claimant's injury was not sustained while in the performance of duty.

The Board noted that:

"Under workers' compensation laws, an employee whose work entails travel away from the employer's premises is within the course of employment continuously during the trip, except when a distinct departure on a personal errand is shown.3 ...The FECA covers an employee 24 hours a day when he or she is on a travel status, or on a temporary-duty assignment or a special mission and engaged in activities essential or incidental to such duties.4

The Board further explained that the general rule with respect to attendance at conventions, seminars and professional meetings states that compensability turns on "whether the claimant's contract of employment contemplated attendance as an incident of his work."5 It quoted Larson's Workers Compensation Law wherein it states: "It is not enough that the employer would benefit indirectly through the employee's increased knowledge and experience." The Board added that in a case where the employer required the employee to attend a seminar or conference, this would be considered probative evidence that attendance was contemplated as an incident of work.

The Board affirmed the Office's decision in this case, noting that the claimant was not in the performance of duty at the time that she was involved in the motor vehicle accident at the restaurant parking lot. However, it added that the claimant still would not have been in the performance of duty if she had actually attended the seminar. The Board emphasized that the connection of the seminar to the employment was simply not sufficient to bring the claimant's attendance at the seminar within the scope of her employment.

TERMINATION OF BENEFITS UNDER 5 U.S.C. 8148(A)

Kenneth E. Fenner, Docket No. 97-2543, Issued July 27, 1999

The Office terminated benefits in this claim pursuant to the provisions of 5 U.S.C. 8128(a), which provide:

Any individual convicted of a violation of section 1920 of title 18, or any other federal or state criminal statute relating to fraud in the application for [or] receipt of any benefit under [the Act] shall forfeit (as of the date of such conviction) any entitlement to any benefits such individual would otherwise be entitled to under [the Act] for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.

The claimant pled guilty to a charge of theft of U.S. government funds, a violation of 18 U.S.C. 641. With the guilty plea, additional charges of fraud to obtain federal employees' compensation and false demands for payment were dropped. The claimant had altered 29 prescription receipts to show that he had paid a greater amount than he was actually charged, which resulted in an overpayment to him in the amount of $1,940.00.

The Board affirmed the Office's decision. They stated that while the violation for which the claimant was convicted was theft, rather than fraud, the facts clearly established that the theft occurred in an attempt to defraud the government, and termination of benefits as of the date of his conviction was appropriate.

The claimant also attempted to argue that he had made full restitution, and that he would suffer hardship as a result of the termination of benefits. The Board stated that the terms of 5 U.S.C. 8148(a) were clear and unambiguous, and that neither the Office nor the Board had the authority to enlarge the terms of the Act.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-11

June 30, 2000

SUBJECT: SELECTED ECAB DECISIONS FOR OCTOBER - DECEMBER, 1999

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject. Covered topics include suitable employment, performance of duty, reducing loss of wage-earning capacity to zero, claims for increased schedule awards, the effect of health benefits deductions on overpayment calculations, and timely filing based on the employer's actual knowledge.

DEBORAH B. SANFORD Acting Director for Federal Employees' Compensation

OVERPAYMENTS

Kenneth E. Rush, Docket No. 98-321, Issued October 6, 1999

This case involves an overpayment created due to the continuation of compensation after a return to work without wage loss. The original overpayment was calculated as the gross amount paid to the claimant during the period between the return to work and the cessation of compensation.

The Board, relying on Sandra K. Neil, 40 ECAB 924 (1989), noted that if a claimant does not derive the benefit of deductions made on his or her behalf, he or she should not be charged for those deductions. In the case at issue, the Office deducted for both health benefits and optional life insurance during the same period that the claimant's employer was doing so on his behalf. As such, the amount of the debt was found to have been calculated improperly; the debt amount should have been the net compensation received during the period in question.

This should serve as a reminder to take health benefit and optional life insurance deductions, along with the reason for the creation of the overpayment, into account when computing an overpayment.

PERFORMANCE OF DUTY

Yvonne L. McCoy, Docket No. 98-580, Issued October 14, 1999

The claimant in this case claimed to have been injured when she fell at her desk. At the time of the injury, she was suspended from her position due to conduct issues. She arrived at work despite the suspension, and was asked to leave. She left, but then returned, and the Federal Protective Service was called to escort her out. During this escort, the claimed injury occurred. The Office denied her claim as not having occurred in the performance of duty, as her presence in the workplace was in direct contravention of her suspension.

The Board affirmed this denial, finding that Ms. McCoy's presence at the workplace was "not for the fulfillment of her employment duties." The Board also found that the refusal to leave until the Federal Protective Service was called was misconduct (although not of the level of statutorily willful misconduct).

PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT

Ylanda Y. Dugay, Docket No. 97-1912, Issued December 2, 1999

The employee filed an occupational disease claim for sleep dysfunction and stress due to working at night. She had been working on the night shift (12:50 am to 9:00 am) for ten years, and found that she was increasingly tired, forgetful, unable to meet deadlines, nervous, and depressed. She did not request a change of shift. Considerable medical evidence was submitted to support that working the night shift caused her condition. The Office denied the claim, finding that she failed to establish a compensable factor of employment, and her condition was not sustained in the performance of duty.

The Board found that the case was not in posture for a decision, and remanded the case for preparation of a statement of accepted facts and further development of the medical evidence. The Board noted, "Compensability does not arise with frustration over not being able to work in a particular environment, but rather it arises from performance of regular or specially assigned duties." The employee's working the night shift constituted a compensable employment factor, because such work related to the performance of her regular duties.

PERFORMANCE OF DUTY - PERSONAL ERRAND

Amy Ureel, claiming as widow of Michael Ureel, Docket No. 97-1752, Issued December 28, 1999

The employee in this decision was killed in a motor vehicle accident. He and a co-worker had worked at one employer location, Slocum Annex, during the morning, and were instructed to return back to the main post office, located two and one-half miles away. As the two employees left Slocum Annex, Mr. Ureel stated his intent to stop at his apartment to pick up a leave slip. The apartment was located off of Grand River Avenue. Mr. Ureel stopped at his apartment and retrieved the leave slip. As his vehicle was leaving the private street where the apartment complex was located and turning on to Grand River Avenue, a westbound motorist struck his vehicle, and he was killed. There was no finding as to whether the employee was attempting to turn left or right. The Office denied the claim on the basis that the employee deviated from his main business route to attend to a personal errand, and had not regained the main business route at the time of the accident, and was therefore not in the performance of duty.

Initially, the Board considered whether the employee was on a personal errand or not at the time of injury. The employee's retrieving a leave slip did not further the employer's business, and was of benefit to the employee, not the employer, and was therefore personal in nature. The Board also considered whether the deviation in this instance would be considered insubstantial, such as momentary diversions needed to administer to one's personal comfort. The Board found that the deviation in this case did not minister to a personal comfort need.

The Board then considered whether, at the time of the accident, the employee had completed his personal errand and resumed his business route. Testimony and statements from coworkers indicated that there were several possible reasonable routes between the two work sites. The employer did not direct employees to take one specific route. A review of a map of the area revealed that there were several possible routes that involved travelling on Grand River Avenue.

The employee apparently left the Slocum Annex and traveled west on Grand River Avenue, passing Drake Road, then turning right into the private drive that led to his apartment complex. The Director argued that the point of deviation from the business route was the intersection of Grand River Avenue and Drake Road. This was based in part on an observation that the employee was attempting to turn left (east) onto Grand River Avenue at the time of the accident, and must have been returning to Drake Road to resume the business route. The Board found, however, that the location where the accident occurred on Grand Avenue was part of an accepted business route between Slocum Annex and the main post office. Whether he intended to turn right or left onto Grand River Avenue did not matter, because the personal deviation ceased as soon as he entered Grand River Avenue. The Office's decision was reversed.

PERFORMANCE OF DUTY - PREMISES

Denise A. Curry, Docket No. 97-2579, Issued November 3, 1999

The claimant in this decision was injured when she slipped and fell on a sidewalk adjacent to the employer's premises, just prior to her usual starting time. The sidewalk was snow-covered, and was a public city-owned sidewalk. Under local ordinances, the owner or person in possession of the property abutting a public sidewalk was liable for any injury caused by the presence of ice or snow. The Office denied the claim as not having occurred in the performance of duty.

An Office hearing representative found that the sidewalk on which the claimant fell was not reserved exclusively or even primarily for employees of the employing establishment, and that responsibility for snow removal did not confer ownership or control of the sidewalk to the employer, or the status of premises upon the sidewalk. In subsequent requests for reconsideration, the claimant's attorney argued that employees of the employing agency removed snow from the sidewalk, and that town code required timely removal of snow and ice. Modification of the prior decision was denied.

The Board affirmed the Office's decisions. They found that the injury took place on a public sidewalk, and was not part of the employer's premises. The proximity rule did not apply in this instance, because the ice and snow were a hazard common to anyone using the sidewalk, and not specifically related to the employment. The Board also noted that the employer's responsibility to clear the sidewalk might subject the agency to tort liability under the Federal Tort Claims Act.

REFUSAL OF SUITABLE WORK

Ronald B. Jackson, Docket No. 97-2524, Issued December 13, 1999

The employee in this decision was a postal clerk who sustained a back injury. After several periods of intermittent leave, return to light duty, and recurrences, he began to work as a part-time community service officer at $8.00 per hour, at a location within a few minutes of his home. Prior to his paid employment, he performed volunteer work for the same employer.

The Federal employing establishment offered the employee a full-time modified rehabilitation clerk position. The employee refused the job, stating that it would require a ninety-minute commute each way. The office found that the job was suitable and so informed the employee. The employee again refused the job, stating that the commute was too long, and that his current job, in which he performed similar duties, was only four and one-half minutes from his home. After giving the employee an additional 15 days within which to accept the position, the Office terminated compensation for failure to accept suitable work, finding that the job he currently held did not represent his wage-earning capacity because he would earn more from the offered position.

The Board found that the Office had improperly found that the employee refused suitable work. If an employee already has a job at the time the Federal employer offers another job, the office must first consider whether the actual earnings fairly and reasonably represent the individual's wage-earning capacity. This determination must be based on full consideration of all the factors involved in the particular case. In this instance, the only reason offered for finding that the employee's actual earnings did not represent his wage-earning capacity was that he would receive higher wages in the offered position. The mere fact that a higher-paying position is offered does not mean that an employee has a higher wage-earning capacity. Actual earnings in a job in the private sector cannot be compared with earnings from an offered federal job. The Office must consider whether the actual earnings fairly and reasonable represent what the claimant could be expected to earn in the general labor market in the commuting area. The Office did not conduct an open labor market survey prior to finding that the actual job did not represent the employee's wage-earning capacity, and the Board reversed their decision.

REFUSAL TO ACCEPT SUITABLE EMPLOYMENT - RELOCATION

Oliver E. Chambers, Docket No. 99-683, Issued November 4, 1999

The issue in this claim was whether the claimant refused an offer of suitable work. The claimant, an MSHA safety specialist who lived in Tennessee, sustained a work-related back injury in 1986. In 1996, the claimant's attending Board-certified orthopedic surgeon released him for work, with certain physical restrictions.

The employer offered him a job as a mine safety health specialist, in Birmingham, Alabama, with relocation expenses. The claimant refused the job, stating that he was not physically capable of performing the job. The Office found the job suitable, and informed him that he had 30 days to accept the job offer or explain why he refused it. When the claimant did not respond, the Office terminated monetary compensation for refusing an offer of suitable work.

The claimant requested a hearing, and submitted notes from his physician stating that the physician had left the number of hours the claimant was able to work per day blank, and that the claimant could perform the offered job at a local office, but was not able to drive a car for any length of time, or travel to other states. The hearing representative affirmed the Office's decision.

The Board also affirmed the Office's decision, finding that the physical requirements of the offered job were in accordance with the attending physician's restrictions. Although the claimant preferred not to relocate to Birmingham, Alabama, he was still being carried on the employing agency's rolls, and thus the agency was required to find him suitable work. He was not justified in refusing the job offer, which included relocation expenses.

REHABILITATION - REDUCTION TO ZERO FOR FAILURE TO COOPERATE

Jacquelyn V. Pearsall, Docket No. 98-111, Issued December 6, 1999
Kenneth A. Watson, Docket No. 98-763, Issued December 17, 1999

In both of these decisions, the Board reversed the Office's decision to reduce compensation to zero based on the employee's failure to cooperate with vocational rehabilitation efforts without good cause.

In Pearsall, the employee actively participated in the rehabilitation process from 1994 through 1996, when services were interrupted due to the need for post-surgical therapy. In 1997, the attending physician released the employee for work, with restrictions, and rehabilitation efforts were resumed. Vocational testing had been performed previously, and job categories were identified which were appropriate for the employee and available in her geographic area.

The employee refused to resume rehabilitation efforts due to back pain, even though the medical evidence supported her ability to work. After advising her that her compensation would be reduced to zero for failure to cooperate with the rehabilitation effort, the Office terminated compensation. A subsequent review of the written record resulted in an affirmation of the Office's decision.

The Board found that the Office improperly reduced the employee's compensation to zero. Section 8113(b) of the FECA provides for reduction of monetary compensation in accordance with what would have been the wage-earning capacity if an individual does not cooperate in the rehabilitation effort. The Regulations in effect at the time of the Office's decision state at 20 CFR 10.124(f), in part:

If an employee without good cause fails or refuses to apply for, undergo, participate in, or continue participation in the early but necessary stages of a vocational rehabilitation effort (i.e., interviews, testing, counseling, and work evaluations), the Office cannot determine what would have been the employee's wage-earning capacity had there not been such failure or refusal. It will be assumed, therefore, in the absence of evidence to the contrary, that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage-earning capacity and the Office will reduce the employee's monetary compensation accordingly.

The Office erred in assuming a loss of wage-earning capacity of zero, because the claimant's refusal to participate did not occur in the early stages of rehabilitation. She had participated in testing and counseling, and appropriate jobs had been identified. The Office had sufficient information to determine her wage-earning capacity, and was not justified in assuming a zero loss of wage-earning capacity.

In Watson, the employee met with his rehabilitation counselor, underwent testing, and cooperated to the extent that an appropriate job training opportunity was identified. As in Pearsall, the assumption of a zero loss of wage-earning capacity could not be made because the employee did cooperate in the early states of vocational rehabilitation. Rather, in both of these cases, a loss of wage-earning capacity should have been established based on the identified positions, which may or may not have resulted in a reduction to zero.

SCHEDULE AWARD--CLAIM FOR INCREASE

Linda T. Brown, Docket No. 98-498, Issued October 1, 1999

The claimant in this case was denied a schedule award in August of 1995 due to a lack of ratable impairment. On September 2, 1997, she requested that the office reconsider; she also submitted a new medical report from her treating physician noting both that her condition had stabilized and that she had a permanent impairment. The Office denied her request for reconsideration as untimely and without clear evidence of error.

The Board, citing Paul R. Reedy, 45 ECAB 488 (1994), found that this denial of the request for reconsideration was not correct because she was not truly requesting reconsideration of the 1995 decision. All of the new information provided noted her current (1997) condition, not her condition at the time of the decision. The Board found that the claimant was really requesting an increased schedule award, and was entitled to a decision regarding that request.

Claims staff should note this decision when considering reconsideration requests on schedule awards.

TIMELY FILING - TREATMENT AT EMPLOYEE ASSISTANCE PROGRAM

Delmont L. Thompson, Docket No. 97-988, Issued November 1, 1999

In this decision, the claimant filed a claim on March 16, 1996 for depression, panic anxiety, and memory loss that he first realized was related to his employment on November 15, 1990. He attributed his condition to harassment by his supervisor (and a coworker), who first referred him to the Civilian Employee Assistance Program (CEAP) in 1988. He retired on November 30, 1990, but continued to work as a reemployed annuitant through January 18, 1991. The Office denied the claim as not timely filed within three years of the last exposure, or when the claimant should reasonably been aware of a relationship between his employment and his condition.

The claimant made an argument that the employer had actual knowledge of his condition, because he was referred to the CEAP in 1988. In prior decisions, the Board has noted that when a claimant seeks treatment at an employing agency health unit, the supervisor is deemed to have actual knowledge of the injury as of the date of treatment. In this instance, however, the claimant sought treatment with CEAP, which is not under control of the employing agency, and does not make treatment records available to the employer, unlike a health unit. Therefore his treatment with CEAP did not confer actual knowledge of his injury upon his supervisor. The Board affirmed the Office's decision.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-12

July 20, 2000

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 7.25 percent for the period July 1, 2000 through December 31, 2000.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 2000.

Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.

DEBORAH B. SANFORD
Acting Director for
Federal Employees' Compensation

Attachments

PROMPT PAYMENT INTEREST RATES
Dates	Rates
7/1/00 - 12/31/00	7.25%
1/1/00 - 6/30/00	6.75%
7/1/99 - 12/31/99	6.5%
1/1/99 - 6/30/99	5.0%
7/1/98 - 12/31/98	6.0%
1/1/98 - 6/30/98	6 1/4%
7/1/97 - 12/31/97	6 3/4%
1/1/97 - 6/30/97	6 3/8%
7/1/96 - 12/31/96	7.0%
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%

DMS INTEREST RATES
Dates	Rates
1/1/00 - 12/31/00	5%
1/1/99 - 12/31/99	5%
1/1/98 - 12/31/98	5%
1/1/97 - 12/31/97	5%
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 00-13

August 9, 2000

SUBJECT: DUAL BENEFITS – AUTHORIZATION AND EARNINGSINFORMATION FROM SOCIAL SECURITY ADMINISTRATION

Effective immediately, Forms CA-936 and CA-1036 are obsolete. Their use is replaced by new Form SSA-581, which is now required by the Social Security Administration for use in obtaining social security detailed earnings information. Form CA-935 has been revised to accommodate the use of this form. A copy of the revised CA-935 and new SSA-581 are attached for your reference.

The system will automatically enter the claimant's name, Social Security Number, Date of Birth, Date of Death (if applicable), the claims examiner's telephone and FAX numbers, and the claimant's address, telephone number and Social Security Number. As is currently done with Form CA-936, the claims examiner then enters the period requested and forwards 2 copies of the SSA-581 to the claimant. The claimant then makes any necessary corrections and signs and dates both copies of the SSA-581. Upon receipt of the two signed forms, the claims examiner then forwards one copy to the Social Security Administration, and retains the other copy in the case file, as is currently done with Form CA-1036.

There is no change in procedures. The only change is that the SSA-581 replaces both the CA-936 and CA-1036.

This form is not used for requests for SSA FERS dual benefits. For these requests, continue to use the FERS SSA Dual Benefits Calculations FAX Transmittal.

DEBORAH B. SANFORD
Acting Director for
Federal Employees' Compensation

Dear CLAIMANT NAME:

This is a request for certain information concerning any wages you may have earned during the period <01/01/1901> to <01/01/1901>.

Therefore, please do the following:

1. Review the information that is pre-printed on the two copies of Form SSA-581 enclosed. Correct any preprinted information by drawing a line through the incorrect information and writing the correct information above it. Be sure to correct both copies of the form.

2. Add any other last name ever used by you or the deceased (if applicable) on the appropriate line on both copies of the form.

3. Sign and date both copies of the form.

4. Please return BOTH copies of the completed form to the OWCP District Office address noted at the top right side of the form within 30 days. DO NOT SEND THE FORMS TO THE SOCIAL SECURITY ADMINISTRATION.

Sincerely,

NAME OF SIGNER
TITLE

Enclosure: SSA-58
Attachment Form SSA-581

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