United States Department of Labor

Employees’ Compensation Appeals Board

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L.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

EDUCATION CALL CENTER, Muskogee, OK, 

Employer

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Docket No. 21-0293

Issued: May 4, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 23, 2020 appellant, through counsel, filed a timely appeal from a 

November 18, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP has met its burden of proof to rescind its acceptance of 

appellant’s claim for neck sprain and displacement of cervical intervertebral disc without 

myelopathy.

FACTUAL HISTORY

On February 28, 2011 appellant, then a 41-year-old veterans’ claims examiner, filed a 

traumatic injury claim (Form CA-1) alleging that at approximately 9:15 a.m. on February 11, 2011 

she injured her back, left knee, wrists, and right shoulder when she fell while walking from the 

employing establishment building to a neighboring privately-owned store during a break. She 

explained that, after she fell, a coworker helped her up and she noticed a rock on the ground. On 

the reverse side of the claim form, the employing establishment acknowledged that appellant was 

in the performance of duty when injured. It noted her duty hours as 6:30 a.m. to 3:00 p.m., Monday 

through Friday. Appellant stopped work on February 14, 2011 and returned to work on 

February 16, 2011.

In a February 16, 2011 witness statement, S.N., appellant’s coworker, noted that on 

February 11, 2011 she and appellant were walking to the store when appellant fell in front of the 

employing establishment’s building, rolling to her side and hitting her knees. She asserted that 

appellant had stepped on or tripped over a rock. S.N. further contended that the rock “obviously 

came from the front structure of the building that is made of small rocks.”

In an undated statement, J.R., an employing establishment manager, noted that on 

February 11, 2011 she was walking between the store and the west entrance of the employing 

establishment when she witnessed appellant fall almost directly in front of her. She noted that 

appellant’s foot or ankle twisted and she fell. J.R. related that the security officer on duty came 

out of the employing establishment’s building to check on appellant. She further noted that she 

saw a piece of rock on the ground where appellant fell and pushed the rock out of the walking area 

toward the building.

By decision dated June 20, 2011, OWCP accepted the claim for neck sprain. 

On March 1, 2013 Dr. Richard L. Drake, a Board-certified orthopedic surgeon, requested 

authorization to perform a C4-5 and C5-6 anterior cervical discectomy and fusion due to 

complaints of ongoing pain and worsening findings demonstrated in a January 22, 2013 magnetic 

resonance imaging (MRI) scan. On March 7, 2013 OWCP denied authorization for the requested 

procedure.

Thereafter, on March 7, 2013, OWCP referred appellant and the case record, along with a 

statement of accepted facts (SOAF), to Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as an OWCP district medical adviser (DMA), to review additional diagnoses and 

determine whether the requested surgery was medically necessary. In a March 14, 2013 report, 

the DMA found that the proposed surgery was medically necessary and related to the accepted 

work injury. He also recommended that appellant’s claim should be expanded to include 

displacement of cervical intervertebral disc without myelopathy. 
3

On April 8, 2013 OWCP expanded the acceptance of appellant’s claim to include 

displacement of cervical intervertebral disc without myelopathy. 

On May 29, 2013 appellant underwent an OWCP-authorized anterior cervical discectomy 

and fusion.

OWCP paid appellant wage-loss compensation on the supplemental rolls beginning 

May 29, 2013, and on the periodic rolls beginning June 30, 2013. It also paid wage-loss 

compensation for temporary total disability for the period July 29 through August 12, 2013.

In an August 14, 2013 memorandum of telephone call (Form CA-110), appellant notified 

OWCP that she had returned to work on August 13, 2013.

In a December 11, 2017 letter, OWCP notified counsel that appellant’s case was

administratively closed with all benefits paid and recommended that she file a notice of recurrence 

(Form CA-2a) if she believed that she needed additional medical treatment related to the accepted 

February 11, 2011 employment injury.

On February 26, 2019 appellant filed a Form CA-2a, alleging that she sustained a 

recurrence of disability on March 15, 2012 due to her accepted February 11, 2011 employment 

injury. 

In a March 6, 2019 development letter, OWCP provided a definition of a recurrence of 

disability. It advised appellant of the type of factual and medical evidence necessary to establish 

her recurrence claim, provided a questionnaire for her completion, and afforded her 30 days to 

submit additional evidence. 

By decision dated May 21, 2019, OWCP denied appellant’s recurrence claim, finding that 

she had not submitted sufficient medical evidence to demonstrate that she was totally disabled due 

to a material change/worsening of the accepted work-related conditions. 

On May 29, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

Following a preliminary review, by decision dated July 19, 2019, OWCP’s hearing 

representative found that the case was not in posture. The hearing representative set aside the 

May 21, 2019 decision and remanded the case for further development on the issue of performance 

of duty. 

In a September 17, 2019 development letter, OWCP requested that the employing 

establishment address whether appellant was on premises that it owned, operated, or controlled at 

the time of the accepted February 11, 2011 employment incident and, if so, to provide a diagram 

showing the boundaries of its premises and the location of the alleged incident. It further requested 

information regarding whether she was performing work duties or activities reasonably incidental 

to her employment at the time of the incident. OWCP afforded 30 days to respond.

In a November 7, 2019 development letter, OWCP again requested that the employing 

establishment provide the requested information. It afforded 15 days to respond.
4

In a November 22, 2019 response to OWCP’s development questionnaire, the employing 

establishment indicated that appellant was on the front sidewalk of the employing establishment 

at the time of her injury. It noted that she was on a break at the time of her injury and was not 

engaged in official duties that required her to be off premises or performing assigned duties. The 

employing establishment also attached a diagram of its building, including where the neighboring 

store was located in relation to the employing establishment’s facility. 

In a December 17, 2019 e-mail, OWCP notified the employing establishment that the 

November 22, 2019 response failed to address whether it owned, operated, or controlled any part 

of the area in front of its building. It also noted that the employing establishment’s diagram failed 

to show the boundaries of the buildings.

In a January 3, 2020 e-mail, the employing establishment notified OWCP that it was 

attaching a diagram with the boundary line drawn between the store and the employing 

establishment. It indicated that it did not own the property at the time and that the area was not 

part of their premises. The employing establishment contended that the location the accident 

occurred was on the leased property side of the store. It attached a new diagram, which showed

the boundaries between the store and the employing establishment. 

In an April 22, 2020 letter, OWCP advised appellant that it proposed to rescind its prior 

acceptance of her claim for neck sprain and displacement of cervical intervertebral disc without 

myelopathy because the claim was accepted in error. It noted that the employing establishment 

had established that she was not in the performance of duty when she fell on February 11, 2011. 

In an August 8, 2019 statement, appellant recalled that the employment incident occurred 

when she fell in the entrance/exit of the employing establishment while on her way to the store. 

She contended that her fall occurred on the premises and/or property of the employing 

establishment, not on the side of the store. Appellant noted that two witnesses saw that her fall 

occurred while still on the premises/property of the employing establishment. She explained that 

the store and the employing establishment shared the same building. 

In a May 4, 2020 letter, counsel asserted that the employing establishment was falsely 

contending that appellant was not in the course of her employment. He noted that she fell while 

she was on her mandatory break. Counsel argued that OWCP’s attempt to rescind its acceptance 

was without any legal merit.

By decision dated June 15, 2020, OWCP finalized the proposed rescission of the 

acceptance of appellant’s claim for neck sprain and displacement of cervical intervertebral disc 

without myelopathy. It found that, at the time of her injury, she was not in the performance of 

duty or assigned duties, and that the property where the injury occurred was not owned, operated, 

or leased by the employing establishment. 

On June 19, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In a June 22, 2020 statement, appellant recalled that she had been under indiscernible 

stress. She again asserted that she had two witnesses, including a manager, to the employment 
5

incident. Appellant reiterated that she fell in front of the employing establishment’s building while 

on her mandatory break.

During the hearing, held on September 3, 2020, counsel argued that appellant’s injury 

occurred during her mandatory paid break in the same area that she was assigned to work, noting 

that the store was another way to describe the same office park or facility. He also argued that 

walking to the store was within the custom of the employing establishment. Appellant testified 

that, on February 11, 2011, while taking her 15-minute mandatory break, she and her coworker 

exited through the door of the employing establishment, turned right, and were on the sidewalk in 

front of the employing establishment’s building when a rock caused her to fall. She explained that 

her injury occurred in the smoke break area immediately outside the employing establishment’s

building. Appellant noted that while there was a breakroom atthe employing establishment, which 

contained vending machines, employees were not required to take a break inside that room. She 

further indicated that it was the common practice among her coworkers and supervisors to leave 

the employing establishment during their breaks. Appellant explained that the employing 

establishment’s facility and the store were connected under one building with different entries. 

She also noted that a manager witnessed her fall and provided a witness statement. Appellant 

indicated that she initially missed time from work after her injury but eventually returned to her 

preinjury duties. She noted that she sustained no new accident or injury that caused worsening of 

her condition since her February 11, 2011 employment injury. Appellant related that she 

underwent neck surgery in May 2013 and returned to work after making some recovery. She 

testified that when she filed the Form CA-2a in February 2019,she was still suffering from the 

same pain in her neck despite performing the same duties as before. Appellant acknowledged that 

she sustained a minor motor vehicle accident in 2018 but noted that she did not seek any medical 

care. She indicated that she medically retired in March 2019. Counsel argued that there were 

witnesses and that the map diagram showed how closely the facilities were located to each other. 

By decision dated November 18, 2020, OWCP’s hearing representative affirmed the 

June 15, 2020 decision.

LEGAL PRECEDENT

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 3 The Board 

has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 8128 

of FECA and, where supported by the evidence, set aside or modify a prior decision and issue a 

new decision.4 The Board has noted, however, that the power to annul an award is not an arbitrary 

one and that an award for compensation can only be set aside in the manner provided by the 

compensation statute.5

3

5 U.S.C. § 8128.

4

See L.M., Docket No. 19-0705 (issued September 11, 2019); John W. Graves, 52 ECAB 160, 161 (2000). See 

also 20 C.F.R. § 10.610.

5 D.W., Docket No. 17-1535 (issued February 12, 2018).
6

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory provision, 

where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it 

has the burden of proof to justify termination or modification of compensation benefits. This also 

holds true where OWCP later decides that it erroneously accepted a claim. 6

OWCP bears the burden of proof to justify rescission of acceptance on the basis of new 

evidence, legal argument and/or rationale.7 Probative and substantial positive evidence or 

sufficient legal argument must establish that the original determination was erroneous. OWCP 

must also provide a clear explanation of the rationale for rescission.8

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to rescind its acceptance of 

appellant’s claim for neck sprain and displacement of cervical intervertebral disc without 

myelopathy.

In support of its rescission of the acceptance of appellant’s claim, OWCP relied upon the 

employing establishment’s November 22, 2019 and January 3, 2020 responses to OWCP’s 

development questionnaire. In its November 22, 2019 response, the employing establishment 

acknowledged that appellant was on the front sidewalk of its facility at the time of her injury, 

noting that she was on her break at the time of her injury and was not engaged in official duties 

that required her to be off the premises or performing assigned duties. It also attached a diagram 

of its building, which showed where the store was located in relation to the employing 

establishment’s facility. In a follow-up statement dated January 3, 2020, the employing 

establishment contended that appellant’s injury occurred on the leased property side of the store, 

which was not part of its work area. It clarified that it did not own the property and attached a new 

diagram showing the boundary line drawn between the store and the employment establishment. 

The Board, however, finds that the employing establishment’s responses to OWCP’s 

development questionnaire were insufficient to establish a basis for the rescission of appellant’s 

claim as its responses do not establish that an error had been made in OWCP’s acceptance of 

appellant’s claim. The employing establishment did not establish that appellant was not in the 

performance of duty at the time of the February 11, 2011 injury. The Board has held that in order 

to rescind acceptance of a given condition, OWCP must show that the weight of the reliable 

evidence establishes that the acceptance of the claim was erroneous. 9 

As the evidence of record does not establish that OWCP erred in its acceptance of 

appellant’s claim, the Board finds that OWCP failed to meet its burden of proof. 

6 V.R., Docket No. 18-1179 (issued June 11, 2019).

7

See L.G., Docket No. 17-0124 (issued May 1, 2018).

8

See W.H., Docket No. 17-1390 (issued April 23, 2018).

9

See D.P., Docket No. 18-1213 (issued July 30, 2020); L.G., supra note 7.
7

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to rescind its acceptance of 

appellant’s claim for neck sprain and displacement of cervical intervertebral disc without 

myelopathy.

ORDER

IT IS HEREBY ORDERED THAT the November 18, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 4, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board