United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Wimberely, TX, Employer 

__________________________________________ 

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Docket No. 15-554 

Issued: May 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 12, 2015 appellant filed a timely appeal from an October 31, 2014 merit 

decision and a November 24, 2014 nonmerit decision of the Office of Workers’ Compensation 

Programs’ (OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case. 

ISSUES 

The issues are: (1) whether appellant has established a recurrence of disability from 

January 25 to 29, 2014 causally related to her November 6, 2001 employment injury; and 

(2) whether OWCP properly denied her request for a prerecoupment hearing as untimely. 

On appeal, appellant contends that she was entitled to 30 days from October 4, 2014, in 

which to respond. The postmark date of OWCP’s September 25, 2014 letter regarding its 

preliminary overpayment determination was October 4, 2014. Appellant further contends that 

OWCP delayed in mailing the letter which she did not receive it until October 6, 2014. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on November 6, 2001 appellant, then a 37-year-old rural carrier 

associate, sustained a lumbar sprain/strain while reaching for a package at work. On 

February 25, 2003 appellant underwent authorized lumbar surgery to treat her herniated nucleus 

pulposus at L4-5. 

Appellant returned to part-time modified duty four hours a day, six days a week on 

August 19, 2003 and stopped work again on August 20, 2003. On August 26, 2003 she 

underwent a lumbar myelogram. 

On October 16, 2003 appellant returned to part-time modified duty for four hours a day, 

six days a week. She stopped work again on March 19, 2011 because the employing 

establishment could no longer accommodate her medical restrictions under the National 

Reassessment Program. OWCP paid total disability compensation. On December 13, 2013 

appellant returned to a modified rural carrier position, four hours a day, six days a week. 

On February 21, 2014 appellant filed claims for compensation (Form CA-7) for leavewithout-pay (LWOP) compensation from January 11 to February 7, 2014. Time analysis forms 

(Form CA-7a) dated February 21, 2014 indicated that she used 8 hours of LWOP on January 11 

and 13, 2014 due to the flu based on a doctor’s note, 12 hours of LWOP from January 22 to 24, 

2014, and 16 hours of LWOP from January 25 to 29, 2014 per her physician regarding her back 

condition. Appellant worked at least four hours each day from January 14 to 18, 2014 and on 

January 21, 2014 she was off for a federal holiday. The employing establishment contended that 

she was not entitled to LWOP compensation for temporary total disability during the claimed 

period because she did not submit any supportive medicals. 

In a January 22, 2014 duty status report (Form CA-17), Dr. Anthony M. Hicks, an 

attending Board-certified internist, placed appellant off work until her follow-up evaluation on 

January 28, 2014. In a referral form dated January 29, 2014, he ordered pain management and 

acute physical medicine modalities for her diagnosed conditions which included 

fusion/derangement of the spine, neuropathy of the lower extremity, muscle spasm disorders and 

fascia, lumbar/lumbosacral dysfunction, lumbar pain with radiculopathy, lumbar sprain/strain, 

sprain/strain of the sacroiliac region, sacroiliac dysfunction, myofascial pain, numbness, burning, 

hyper/hypo paresthesia, neuropathic pain (radiculitis and nerve root neuritis), sacroilitis inflamed 

joint tissue, and reactive depression. In a duty status report and treatment note dated January 29, 

2014, Dr. Hicks listed findings on examination and reviewed appellant’s medical records. He 

advised that she had been unable to work due to severe physical dysfunction and lack of pain 

control by medications. Dr. Hicks released appellant to return to modified work with 

restrictions, eight hours a day on January 29, 2014. He determined that she had not reached 

maximum medical improvement. Dr. Hicks advised that her complaints were likely related to 

her work-related physical activities. On February 13, 2014 he reported that appellant had 

moderate pain. Dr. Hicks diagnosed lumbar intervertebral disc without myelopathy, lumbar or 

lumbosacral intervertebral disc, and anxiety disorder in conditions. 

In a January 29, 2014 report, Dr. J. Lowell Haro, an attending Board-certified 

anesthesiologist, provided a history of the November 6, 2001 employment injury and appellant’s 
3

medical treatment and findings on examination. He assessed appellant as having 

postlaminectomy syndrome of the lumbar region, displacement of a lumbar intervertebral disc 

without myelopathy, obesity, chronic pain syndrome, and long-term drug use. By letter dated 

January 29, 2014, Dr. Haro stated that appellant was under his care on that day. He requested 

that she be excused from work. 

Laboratory reports dated January 24 and 31, 2014 provided drug test results. 

By letter dated March 4, 2014, OWCP advised appellant that her request for 

compensation for the period January 11 to 24, 2014 was not payable as the employing 

establishment had not certified any hours of wage loss for the claimed period. It further advised 

her that the evidence submitted was insufficient to establish her claim for compensation for the 

period January 25 to February 7, 2014. OWCP requested that appellant to submit rationalized 

medical evidence in support of her disability claim. 

In reports dated February 13 to August 27, 2014, Dr. Hicks addressed appellant’s lumbar 

conditions and advised that she could work with restrictions. In a March 27, 2014 report, he 

advised that appellant had been unable to work from January 25 through February 7, 2014 due to 

an unstable lumbar medical condition (she recently experienced several episodes of complete 

dysfunction and her lumbar spine necessitated strict bed rest), severe pain (she was minimally 

able to physically function due to severe pain), therapeutic rest trial, and ongoing oral pain 

medications that affected her capacity to mentally function with certitude and completion of 

other invasive therapeutic option(s). Dr. Hicks stated that his long-term, short-term, and overall 

goal(s) were for appellant to work with restriction(s). In light of the above, he removed her from 

work to stabilize her multiple ongoing severe chronic complaints and improve her physical 

function, and reduce her complaints. Dr. Hicks related that appellant’s removal from work had 

helped her conditions stabilize and that she had been returned to productive work with 

restrictions. 

In reports dated February 28 to August 27, 2014, Dr. Haro addressed appellant’s back 

conditions, long-term drug use, and ability to work full time at the employing establishment. 

By preliminary determination dated September 25, 2014, OWCP advised appellant that 

she received an overpayment of compensation in the amount of $18,436.11 because she was paid 

compensation at an incorrect pay rate for the period October 16, 2003 through March 9, 2013. It 

explained the calculation of the overpayment and found her not at fault in its creation as she was 

not aware or could not have been reasonably expected to know that it had incorrectly paid 

compensation. OWCP afforded appellant 30 days to submit financial information and to request 

either a telephone conference, decision on the written evidence, or a prerecoupment hearing. 

In an overpayment action request form dated October 22, 2014, postmarked October 28, 

2014, and received on October 30, 2014 by OWCP, appellant disagreed with the amount of the 

overpayment, and requested waiver of recovery of the overpayment and a prerecoupment hearing 

with an OWCP hearing representative. She submitted an overpayment recovery questionnaire 

and additional financial documents. Appellant provided arguments in a narrative statement dated 

October 22, 2014. 
4

In an October 31, 2014 decision, OWCP denied appellant’s claim for compensation from 

January 25 to 29, 2014, finding that the medical evidence did not establish that she was totally 

disabled during the claimed period due to her accepted November 6, 2001 employment injury. 

By decision dated November 24, 2014, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a prerecoupment hearing as untimely. 

LEGAL PRECEDENT -- ISSUE 1 

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.2

 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his 

or her work-related injury or illness is withdrawn (except when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the 

physical requirements of such an assignment are altered so that they exceed his or her established 

physical limitations.3

 

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that she can perform the limited-duty position, the employee has the burden to 

establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and to show that he or she cannot perform such limited-duty work. As part of this 

burden, the employee must show a change in the nature and extent of the injury-related condition 

or a change in the nature and extent of the limited-duty job requirements.4

To show a change in the degree of the work-related injury or condition, the claimant must 

submit rationalized medical evidence documenting such change and explaining how and why the 

accepted injury or condition disabled the claimant for work on and after the date of the alleged 

recurrence of disability.5

 

ANALYSIS -- ISSUE 1 

OWCP accepted that on November 6, 2001 appellant sustained a lumbosacral 

sprain/strain while in the performance of duty and underwent authorized back surgery on 

November 26, 2002. Thereafter, appellant worked intermittently and underwent additional 

lumbar surgeries. On December 13, 2013 appellant returned to a modified rural carrier position, 

four hours a day, six days a week. She claimed a recurrence of disability from January 25 to 29, 

 2

 20 C.F.R. § 10.5(x). 

3 Id. 

4 Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 

38 ECAB 222, 227 (1986). 

5 James H. Botts, 50 ECAB 265 (1999). 
5

2014 due to her accepted injury. Appellant does not allege that this disability was a result of a 

change in the nature and extent of her limited-duty job requirements. Therefore, she must show 

a change in the nature and extent of her injury-related condition. 

The Board finds that appellant has not submitted sufficient medical opinion evidence to 

support her claimed period of disability. Dr. Hicks’ reports do not contain a rationalized opinion 

explaining how she had become disabled from January 25 to 29, 2014 due to a worsening of her 

accepted work-related condition. He opined in his March 27, 2014 report that appellant was 

unable to work from January 25 through February 7, 2014. Dr. Hicks diagnosed an unstable 

lumbar medical condition and noted that she recently experienced several episodes of complete 

dysfunction and her lumbar spine necessitated strict bed rest. He also identified severe pain 

because she was barely able to function. Dr. Hicks prescribed therapeutic rest trial. He 

determined that ongoing oral pain medications affected her capacity to mentally function. 

Dr. Hicks identified various conditions, but did not explain how they were caused by the 

accepted November 6, 2001 employment injury. 

Similarly, in his January 22, 2014 Form CA-17 report, Dr. Hicks offered no medical 

rationale explaining why appellant’s disability for work through January 28, 2014 was causally 

related to the work injury. The Board has held that a medical opinion not fortified by medical 

rationale is of diminished probative value.6

 

In his duty status report and treatment note dated January 29, 2014, Dr. Hicks released 

appellant to return to modified work with restrictions, and stated that she had been unable to 

work due to severe physical dysfunction and lack of pain control by medications. He explained 

that appellant’s complaints were “likely” related to her work required physical activities. The 

Board finds, however, that his opinion concerning causal relation is speculative and is, therefore, 

of diminished probative value.7 Dr. Hicks’ remaining reports addressed appellant’s lumbar 

conditions and work capacity, but did not offer a medical opinion on whether her diagnosed 

conditions and any resultant disability were caused by the accepted work injury. The Board has 

held that medical evidence offering no opinion regarding the cause of an employee’s condition is 

of limited probative value on the issue of causal relationship.8

 The Board finds that Dr. Hicks’ 

submissions are insufficient. 

Dr. Haro’s January 29, 2014 report and letter found lumbar postlaminectomy syndrome, 

displacement of a lumbar disc, obesity, chronic pain syndrome, and long-term drug use. He 

 6 F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005); 

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports without 

containing rationale on causal relationship are entitled to little probative value). 

7 Rickey S. Storms, 52 ECAB 349, 352 (2001) (the opinion of a physician supporting causal relationship need not 

be one of absolute medical certainty but must not be speculative or equivocal. The opinion should be expressed in 

terms of a reasonable degree of medical certainty); see also D.D., 57 ECAB 734, 739 (2006). See Samuel Senkow, 

50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease was not definite and was 

unsupported by medical rationale, it was insufficient to establish causal relationship). 

8 A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002); 

Michael E. Smith, 50 ECAB 313 (1999). 
6

requested that she be excused from work that same day, but offered no opinion stating that the 

conditions or disability were caused by the employment-related injury.9 Dr. Haro’s remaining 

reports do not provide an opinion addressing a causal relationship between her conditions and 

disability for work during the claimed period.10

The January 24 and 31, 2014 laboratory reports failed to establish any causal relationship 

between appellant’s disability during the claimed period and her accepted employment injury.11

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

OWCP regulations on the recovery of overpayments provide that, before collecting the 

overpayment, it must provide the claimant with written notice of the fact and amount of the 

overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or 

finding of fault and the right to request waiver of the overpayment.12 The regulations further 

provide that a claimant may request a prerecoupment hearing with respect to an overpayment.13 

Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right 

to a hearing.14 The only right to a review of a final overpayment decision is to the Board.15 The 

hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.16

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely. OWCP notified appellant of its preliminary determination that she received 

an overpayment of compensation on September 25, 2014. It informed her that she could request 

a telephone conference, a prerecoupment hearing or a final decision based on the written 

evidence within 30 days of the date of the letter. OWCP’s implementing regulations are specific 

as to the 30-day time limitation in which to request a prerecoupment hearing. The 30-day time 

 9 Id. 

10 Id.

11 Id. 

12 20 C.F.R. § 10.431; see also J.J., Docket No. 13-1905 (issued April 8, 2014); A.G., 58 ECAB 625 (2007). 

13 Id. at § 10.432. 

14 Id., J.J., supra note 12; L.C., 59 ECAB 569 (2008). 

15 Id. at § 10.440(b). 

16 Id.; J.J., supra note 12. 
7

period is determined by the request’s postmark or other reliable date of marking.17 The 

regulation does not measure timeliness based on the date of receipt, but instead on the 

postmark.18 Appellant’s request for a prerecoupment hearing was postmarked October 28, 2014 

more than 30 days after OWCP’s notification of overpayment dated September 25, 2014. As 

provided in OWCP regulations, her hearing request was therefore untimely and she waived her 

right to a prerecoupment hearing.19

On appeal, appellant contended that she should have been given 30 days from October 4, 

2014, the postmark date of the OWCP’s September 25, 2014 letter regarding its preliminary 

overpayment determination. She contended that OWCP delayed in mailing the letter which she 

did not receive until October 6, 2014. Appellant has not submitted any evidence to substantiate 

her allegation of a delay by OWCP. Moreover, OWCP regulations are clear that the postmark 

date is used to determine the timeliness of a request for a prerecoupment hearing. As appellant’s 

request was postmarked October 28, 2014, more than 30 days after OWCP issued its 

September 25, 2014 preliminary overpayment determination, it was untimely filed. 

CONCLUSION 

The Board finds that appellant has failed to establish a recurrence of disability from 

January 25 to 29, 2014 causally related to her November 6, 2001 employment injury. The Board 

further finds that OWCP properly denied appellant’s request for a prerecoupment hearing as 

untimely. 

 17 20 C.F.R. § 10.616(a). OWCP has administratively decided that the test used in 20 C.F.R. § 10.616(a) for 

determining the timeliness of hearing requests should apply to requests for prerecoupment hearings. 20 C.F.R. 

§ 10.439. Accordingly, timeliness is determined by the postmark of the envelope, if available. 

18 Id. See also S.E., Docket No. 11-1632 (issued April 12, 2012); T.W., Docket No. 11-732 (issued 

November 29, 2011). 

19 J.J., supra note 12. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 24 and October 31, 2014 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: May 27, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board