United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

White Plains, NY, Employer 

__________________________________________ 

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Docket No. 14-669 

Issued: October 21, 2014 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 3, 2014 appellant, through his representative, filed a timely appeal of a 

November 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $5,437.45 for the period February 6 to 

April 6, 2013 based on the termination of his compensation benefits; (2) whether appellant was 

at fault in the creation of the overpayment; (3) whether the overpayment was subject to waiver; 

and (4) whether OWCP properly determined the rate of recovery of the overpayment. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 14, 2011 appellant, then a 31-year-old city carrier, sustained injuries to his 

right shoulder, elbow and knee when he slipped and fell on icy stairs in the performance of duty. 

OWCP accepted his claim for sprain of the lateral collateral ligament of the right knee, sprain of 

the right shoulder, arm and acromioclavicular (AC) joint and sprain of the right elbow and 

forearm on March 7, 2011. It paid compensation by direct deposit commencing on 

April 8, 2011. 

Appellant underwent a magnetic resonance imaging (MRI) scan of his right knee on 

March 21, 2011 which demonstrated a small horizontal tear of the posterior horn of the lateral 

meniscus. On June 22, 2011 OWCP accepted a sprain of the medial collateral ligament of the 

right knee and tear of the lateral meniscus of the right knee. It entered appellant on the periodic 

rolls on July 15, 2011. Dr. Richard Weinstein, a Board-certified orthopedic surgeon, performed 

a right knee partial lateral and medial meniscectomy on January 5, 2012. OWCP also accepted 

that appellant sustained a tear of his medial meniscus of his right knee. 

Appellant sought treatment from Dr. David Brcka, a Board-certified orthopedic surgeon, 

on January 13, 2012 and Dr. Brian Patterson, a Board-certified orthopedic surgeon, on 

March 26, 2012. The physicians found that appellant had work restrictions and had not reached 

maximum medical improvement following his surgery. Dr. Patterson found a limited range of 

motion in appellant’s right knee from 45 to 90 degrees of flexion and 0 degrees of extension as 

well as normal muscle testing and positive McMurray test both medial and lateral. He diagnosed 

knee pain and recommended a right shoulder arthrogram for a possible rotator cuff tear. 

On May 15, 2012 OWCP referred appellant, a statement of accepted facts and a list of 

questions to Dr. Jonathan Black, a Board-certified orthopedic surgeon, for a second opinion 

examination. Appellant underwent a right shoulder arthrogram on May 21, 2012 which did not 

demonstrate evidence of rotator cuff tear. 

In a report dated June 5, 2012, Dr. Black noted appellant’s history of injury and his 

continued right knee, right shoulder and right elbow pain. He found that appellant had no 

swelling or effusion in his right knee. Appellant demonstrated 120 degrees of extension in his 

right knee as well as normal muscle strength and gait. Dr. Black stated that all tests of the right 

knee including McMurray’s, Anterior Drawer, Posterior Drawer, Lachman’s, Patellar 

Apprehension and Valgus stress tests were negative. He reviewed appellant’s March 21, 2011 

MRI scan and stated that the tear in the lateral meniscus was repaired in the January 5, 2012 

surgery. Dr. Black examined appellant’s upper extremities and found full range of motion and 

normal strength in appellant’s right shoulder and elbow. He diagnosed right knee sprain, right 

shoulder sprain, right AC injury, right elbow and forearm sprain and tear of the right lateral or 

medial meniscus. Dr. Black stated that appellant had no objective findings on physical 

examination to support ongoing problems with his right knee, elbow or shoulder. He concluded 

that appellant’s subjective complaints outweighed his objective findings as he had full range of 

motion. Dr. Black noted that appellant’s right knee had healed with no ongoing evidence of 

clinical synovitis and that his right shoulder examination was benign. He diagnosed mild lateral 

epicondylitis of the right elbow. Dr. Black found that appellant had no work restrictions due to 
3

his January 14, 2011 employment injury and that he had reached maximum medical 

improvement. 

Appellant underwent an MRI scan of the right knee on June 27, 2012 which 

demonstrated anterior cruciate ligament sprain, patellar contusion, surface tear of the posterior 

horn of the lateral meniscus and potential patellar maltracking disorder. Dr. James M. Ray, a 

Board-certified orthopedic surgeon, examined appellant on October 11, 2012. He found that 

appellant reported a gradual onset of knee pain and moderate pain in the right shoulder. Dr. Ray 

submitted a form report on October 30, 2012 noting appellant’s history of injury. He found that 

appellant was totally disabled and recommended additional diagnostic testing. 

In a letter dated December 4, 2012, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Black’s report. It allowed 30 days for him to 

respond. 

Appellant underwent a right knee MRI scan on December 19, 2012 which demonstrated a 

tear of the posterior horn of the lateral meniscus extending to the inferior articular surface. On 

the same date Dr. Ray obtained an MRI scan of his right shoulder, which demonstrated 

degenerative changes of the AC joint with inferior AC joint spur exerting mass effect upon the 

supraspinatus. He completed a form report on December 27, 2012 and listed that appellant was 

totally disabled. Dr. Ray diagnosed right knee and right shoulder conditions. 

By decision dated February 6, 2013, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that date. 

Appellant requested a review of the written record by an OWCP hearing representative 

on February 11, 2013. 

In a report dated February 26, 2013, Dr. Samy F. Bishai, a Board-certified orthopedic 

surgeon, noted appellant’s history of injury. He listed appellant’s symptoms of pain in his knee, 

right shoulder, lower back and right elbow. Dr. Bishai stated that appellant was totally disabled. 

On April 23, 2013 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $5,437.45 from February 6 through April 6, 2013 

following the termination of benefits. It found that he was at fault in the creation of the 

overpayment as he accepted a payment, which he knew or reasonably should have known was 

incorrect. Appellant received a compensation check on February 9, 2013 in the amount of 

$358.18, two additional checks on March 9, 2013 for a total of $2,523.01 and a final check on 

April 6, 2013 in the amount of $2,556.26 for a total overpayment of $5,437.45. 

Appellant requested a prerecoupment hearing on May 10, 2013. He requested waiver of 

recovery of the overpayment on the grounds that the overpayment was not his fault and would be 

a financial hardship to repay. Appellant completed an overpayment recovery questionnaire and 

advised that he had no monthly income and that he provided support for his two minor children. 

He listed monthly expenses of rent $1,331.30; food $500.00; clothing $50.00; utilities $675.00; 

and miscellaneous expenses of $300.00. Appellant also had a monthly car payment of $488.00 

and monthly credit card debt of $280.00 for total monthly expenses of $3,724.30. He indicated 

that his only asset was a checking account balance of $6.23. At the oral hearing on May 13, 
4

2013, appellant testified that he returned to work on March 16, 2013 and reinjured his right knee, 

shoulder, elbow and lower back. 

By decision dated June 20, 2013, OWCP’s hearing representative affirmed the 

termination decision finding that there was little objective medical evidence from appellant’s 

treating physicians to support ongoing injury-related disability and that Dr. Black’s report was 

sufficiently well reasoned to meet OWCP’s burden of proof to terminate wage-loss and medical 

benefits. 

Appellant’s representative appeared at the prerecoupment hearing on September 3, 2013. 

He stated that appellant had no income as he had stopped work and filed an additional claim for 

injury with OWCP, case file number xxxxxx552, which was accepted for injury on 

March 16, 2013. Appellant’s representative stated that appellant received compensation under 

this claim. 

Appellant received a third-party recovery of $125,000.00 resulting in refund to OWCP of 

$43.859.80, attorney’s fees of $41,662.50 and court costs of $1,104.49. He recovered 

$16,446.60 and $21,926.61 for attorney’s fees or $38,373.21. 

By decision dated November 21, 2013, OWCP’s hearing representative found that 

appellant had received an overpayment of compensation in the amount of $5,437.45. Appellant 

was at fault in the creation of the overpayment as he accepted three compensation checks after 

the February 6, 2013 termination. The hearing representative determined that because he was at 

fault in the creation of the overpayment he was not entitled to waiver of recovery. She found 

that appellant received compensation in the amount of $2,890.98 every 28 days under case file 

number xxxxxx552. The listed expenses of $3,132.30 per month including unexplained credit 

card debt of $388.00. The hearing representative reduced appellant’s expenses by this amount 

on the grounds that this expense was represented by other listed expenses. She found that his 

ongoing compensation benefits should be reduced by $200.00 per check or $216.17 per month 

(every 28 days) to recover the overpayment. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.2

 Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.3

 After it has 

determined that an employee has disability causally related to his or her federal employment, 

OWCP may not terminate compensation without establishing that the disability has ceased or 

that it is no longer related to the employment.4

 Furthermore, the right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability.5 To terminate 

 2

 5 U.S.C. § 8102. 

3 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

4 Id.

5 Furman G. Peake, 41 ECAB 361, 364 (1990). 
5

authorization for medical treatment, OWCP must establish that appellant no longer has residuals 

of an employment-related condition which require further medical treatment.6

 

ANALYSIS -- ISSUE 1 

OWCP entered appellant on the periodic rolls on July 15, 2011 due to his accepted 

employment injuries of sprain of the lateral collateral ligament of the right knee, sprain of the 

right shoulder, arm and AC joint and sprain of the right elbow and forearm with a sprain of the 

medial collateral ligament of the right knee and tears of the medial and lateral meniscus of the 

right knee. Appellant underwent corrective surgery on January 5, 2012. Following his surgery, 

he sought treatment from Drs. Brcka and Patterson in January and March 2012 respectively. 

Both physicians found that appellant continued to have residuals and disability due to his 

employment injuries and surgery. Dr. Patterson reported loss of range of motion in the right 

knee as well as positive McMurray tests both medially and laterally. 

OWCP referred appellant for a second opinion evaluation with Dr. Black. In his June 5, 

2012 report, Dr. Black reported appellant’s history of injury and noted complaint of right knee, 

right shoulder and right elbow pain. He found full range of motion and normal strength in 

appellant’s right shoulder, elbow and knee. Dr. Black stated that all special tests including 

McMurray were negative. He determined that appellant’s subjective complaints outweighed his 

objective findings. Dr. Black concluded that appellant had no work restrictions due to his 

January 14, 2011 employment injury and that he had reached maximum medical improvement 

with no residuals. 

Following Dr. Black’s report, appellant submitted additional diagnostic test results 

including an MRI scan of the right knee on June 27, 2012. The MRI scan demonstrated anterior 

cruciate ligament sprain, patellar contusion, surface tear of the posterior horn of the lateral 

meniscus and potential patellar maltracking disorder. Dr. Ray found that appellant was totally 

disabled and recommended additional diagnostic testing. 

The Board finds that Dr. Black’s report is not sufficiently well reasoned to represent the 

weight of the medical opinion evidence. Dr. Black opined that appellant’s employment-related 

conditions had resolved and noted that the objective findings did not support his subjective 

symptoms, however, he did not review contemporaneous diagnostic tests in reaching his 

conclusions. He found that appellant’s tests on examination were negative in contrast to 

Drs. Brcka and Patterson. Dr. Black based his conclusion that appellant’s knee condition had 

resolved based on range of motion of only 120 degrees. The Board finds Dr. Black’s report is 

not sufficient to meet OWCP’s burden of proof to establish that appellant had no disability or 

ongoing medical residuals related to his accepted employment injury. The Board finds that 

OWCP did not meet its burden of proof to terminate appellant’s compensation benefits effective 

February 6, 2013. OWCP failed to meet its burden of proof to terminate appellant’s 

compensation benefits. Therefore, fact of overpayment is not established in this case. The 

remaining issues are rendered moot. 

 6 Id.
6

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

compensation benefits effective February 6, 2013 and that therefore there is no overpayment 

resulting from such a termination. 

ORDER 

IT IS HEREBY ORDERED THAT the November 21, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 21, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board