Digest and Decisions of the Employee Compensation Appeals Board, V. 56, October 1, 2004 to September 30, 2005 and Index Digest 32

Digest and Decisions of the Employee Compensation Appeals Board, V. 56, October 1, 2004 to September 30, 2005 and Index Digest 32
Digest and Decisions of the Employee Compensation Appeals Board, V. 56, October 1, 2004 to September 30, 2005 and Index Digest 32
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Cited as: 50 ECAB. Includes "Digest and Decisions of the Employees' Compensation Appeals Board" and "Decisions of the Employees' Compensation Appeals Board." Item 749-B. The Employee’s Compensation Appeals Board was established in 1946 as a three-member, quasi-judicial body within the Federal Security Agency in accordance with the provisions of Reorganization Plan No. 19 of 1946, effective July 16, 1946.  Reorganization Plan No. 19 of 1950, effective May 24, 1950, provided for the transfer of the Board and its functions to the Department of Labor, and the transfer to the Secretary of Labor of the functions of the Federal Security Administrator with respect to the Board.  The Board has authority to hear and, subject to applicable law, make final decisions on appeals taken from determinations and awards with respect to claims of employees of the Federal Government arising out of the Federal Employees’ Compensation Act of 1916, as amended and extended.  The Board’s jurisdiction is strictly appellate in nature and extends to questions of law and fact and to questions concerning the exercise of discretion.  The review is made upon the case record.  New evidence is neither received nor considered by the Board.  The administration of the Federal Employees’ Compensation Act is the responsibility of the Office of Worker’s Compensation Programs which, prior to July 2, 1974, was known as the Bureau of Federal Employees’ Compensation.

The decisions reported in this volume were issued during the period from October 1, 1998 to September 30, 1999.  This volume contains only those cases having precedential value.  Routine cases which follow earlier established precedents have not been included.  Likewise, most of the Board’s orders (decisions issued without opinions) have been excluded.  The majority of these orders set aside the decision of the Office of Workers’ Compensation Programs in the particular case and remanded it, either on the Board’s own initiative or on motion of the Office, to correct legal or procedural error or for further development from an evidentiary standpoint. 

Table of Contents

Table of Contents:

Abuse of Discretion p. 7
Attendant’s Allowance p. 7
Attorneys and Representatives p. 8
Attorney’s/Representative’s Fee p. 8
Board (see Procedure on Appeal to or Review by the Board) p. 8
Burden of Proof p. 8
Claimant p. 8
  Disability (see also Disability) p. 8
  Essential Elements of Claim p. 8
  Evidence Required p. 9
  Fact of Injury p. 9
   Occupational Disease p. 10
   Traumatic Injury p. 10
  Inferences and presumptions p. 10
  Recurrence of Disability p. 11
Return to Light Duty (see also Wage-Earning Capacity, Actual Earnings)
p. 12
   Earnings p. 12
Office of Workers’ Compensation Programs p. 13
Modification of Award (see also Termination of Compensation; Wage-Earning Capacity) p. 13
   Rescission of Acceptance of Benefit or Right p. 14
Causal Relationship p. 16
  Aggravation of Preexisting Condition p. 16
  Consequential Injury p. 17
  Evidence Required p. 18
Chiropractors p. 19
  Competency and Weight p. 19
  Physician Defined p. 19
  Reimbursable Services (see also Medical expenses, Authorization/Reimbursement) p. 19
Compensation p. 20
  Basic/Augmented Compensation p. 20
   Dependents p. 21
  Deductions from p. 22
   Federal Employees’ Health Benefits Program p. 22
  Dual Benefits (see Schedule Awards, Concurrent Payments) p. 22
  Rate of Pay (see also Job Corps Enrollees) p. 22
Concurrent Employment (see also Wage-Earning Capacity, Actual Earnings, Concurrent Employment p. 24
  Learner’s Capacity p. 25
Continuation of Pay p. 25
Disability p. 26
Emotional Conditions p. 26
  Burden of Proof p. 26
  Factual Findings p. 26
   Evidence Required p. 26
   Necessity to Make Factual Findings p. 27
  Performance of Duty p. 27
   Administrative/Personnel Actions p. 28
    Error or Abuse p. 28
   Employment Factors Alleged p. 29
    Altercations and Disputes, Verbal or Physical p. 29
    Discrimination, Harassment, Retaliation p. 29
    Investigations/Discipline p. 30
    Job Transfers, Training, Change in Duty Shift/Assignment p. 31
    Leave Matters p. 31
    Promotions/Demotions/Termination/Fear of Job Loss p. 31
    Regular or Specially Assigned Duties p. 32
    Work Environment p. 32
Employee p. 33
Statutory/Regulatory Provision p. 34
Employees’ Compensation Appeals Board (see Procedure on Appeal to or Review by the Board) p. 34
Federal Employees’ Compensation Act p. 34
Findings of Other Government Agencies p. 34
Statutory Construction p. 35
Forfeiture/Suspension of Compensation (section 8106(b)) p. 35
Forfeiture p. 35
  Concurrent Dissimilar Employment p. 37
  Criminal Conviction/Plea Agreement p. 37
  Earnings or Wages p. 37
  Partial or Total Disability p. 38
  Standard of Review p. 38
   Knowingly p. 39
Statutory/Regulatory Provision p. 39
Hearings (see Office of Workers’ Compensation Programs, hearings, Right to) p. 40
Injury p. 40
Fact of Injury (see Burden of Proof, Claimant) p. 40
Job Corps p. 40
Mailbox Rule p. 40
Medical Expenses and Treatment p. 41
Authorization/Reimbursement (see also Chiropractors, Reimbursable Services) p. 41
Choice of Physician p. 41
Lost Wages Incident to p. 41
Services, Appliances, and Supplies p. 42
Statutory Provision p. 42
Medical Opinions p. 42
Impartial medical Examination p. 42
  Conflict in Medical Evidence p. 42
  Selection of Impartial Medical Specialist p. 43
   Notice to claimant p. 44
  Weight of Impartial Report p. 44
Second Opinion Examinations p. 45
Statement of Accepted Facts p. 45
Weight of Medical Opinions p. 45
  Competency (see also Chiropractors, Competency and Weight) p. 46
Office of Workers’ Compensation Programs p. 46
Hearings, Right to p. 46
  Discretionary Hearings, p. 46
  Matter of Right p. 46
  Statutory/Regulatory Provision p. 47
Jurisdiction p. 47
Necessity to Find Facts/Disclose Basis for Determination p. 47
Overpayments p. 47
Fact and amount p. 47
Fault p. 48
Hearing or Reconsideration, Right to p. 50
Recovery p. 50
Statutory Provision p. 52
Waiver p. 53
  Against Equity and good conscience p. 53
  Defeat the Purpose of the Act p. 54
Performance of Duty p. 55
Altercations or Misconduct p. 55
  Willful Misconduct p. 55
Deviation from Duty p. 55
Elements p. 56
Military Reserves p. 58
Personal Comfort, Incidental Activities p. 58
Premises Doctrine p. 59
  Off-Premises Workers p. 62
  Parking lots p. 63
  Proximity Rule p. 63
  Special Errand Exception p. 63
Travel, Special Mission, or Temporary Duty p. 64
Procedure on Appeal to or Review by the Board p. 65
Jurisdiction p. 65
Reconsideration p. 65
Merit Review, Basis for p. 65
  New Evidence/Legal contention p. 66
Nature of Request p. 66
Office Delay in Processing p. 67
One-Year Time Limitation p. 67
  Clear Evidence of Error Standard p. 68
Review of Office’s Motion p. 69
Statutory Provision p. 69
Schedule Awards p. 70
AMA Guides p. 70
Arm p. 70
Concurrent Payments p. 71
Factors in Calculating Impairment p. 71
Hand p. 72
Hearing Loss p. 72
Leg p. 73
Lungs p. 73
Nonschedule Impairment p. 74
Statutory/Regulatory Provision p. 75
  Amendments p. 75
Subrogation/Third-Party Recovery (section 8132) p. 75
Statutory Provision p. 75
Termination of Compensation p. 76
Fraud Conviction (section 8148) p. 78
Suitable Work, Refusal or Neglect of p. 78
  Abandonment p. 80
  Notice of Termination p. 81
  Reasons for Refusal p. 81
  Statutory/Regulatory Provision p. 82
Vocational Rehabilitation p. 83
Prospective Reduction p. 83
Statutory/Regulatory Provision p. 83
Wage-Earning Capacity p. 83
Actual Earnings p. 83
  Concurrent Employment p. 86
  Retroactive Determination p. 86
Elements p. 86
Modification p. 88
Selected Position p. 89
  Reasonable Availability p. 90
Vocational Rehabilitation p. 91


Employees seeking compensation for various reasons, including injury, will find this publication useful to see the legal precedent that has been set for the variety of case types listed in the Table of Contents.  Law students researching cases, and lawyers who work for employee compensation, will also find this helpful in preparing cases and citing legal precedent.

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  • Employee Compensation Appeals Board Decisions, V. 56
  • Workers Compensation
  • Employee Benefits
  • Labor Management Relations
  • ECAB 56
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