United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.T., Appellant

and

U.S. POSTAL SERVICE, BALTIMORE POST 

OFFICE, Baltimore, MD, Employer

__________________________________________

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Docket No. 22-1038

Issued: June 22, 2023

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 2, 2022 appellant, through her representative, filed a timely appeal from a 

March 28, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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

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. 3

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective February 24, 2021, as she no longer had disability causally 

related to her accepted June 24, 2020 employment injury; (2) whether appellant has met her burden 

of proof to establish continuing disability on or after February 24, 2021, causally related to her 

accepted June 24, 2020employment injury;(3) whether OWCP properly determined that appellant 

received an overpayment of compensation in the amount of $7,575.28 for the period February 24 

through May 7, 2021, for which she was without fault, because she continued to receive FECA 

wage-loss compensation to which she was not entitled; and (4) whether OWCP properly denied 

waiver of recovery of the overpayment.

FACTUAL HISTORY

On June 24, 2020 appellant, then a 51-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she sustained an abdominal injury when she was pinned 

between two wire cages while in the performance of duty. The record indicates that she stopped 

work.

Appellant was treated initially by Toni E. Rosal, a certified registered nurse practitioner 

(CRNP), who diagnosed an abdominal injury in reports dated from June 24 through 26, 2020.

Ms. Rosal returned appellant to modified duty with restrictions, effective June 25, 2020.

In reports dated from June 30 through August 7, 2020, Dr. Christine L. Commerford, a 

Board-certified family practitioner, diagnosed a crush injury.4 She held appellant off work. 

On August 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period August 9 through 14, 2020. She subsequently filed additional Form 

CA-7 claims for compensation through September 11, 2020.

In a September 8, 2020 report, Dr. Commerford described a six-month history of a right 

upper extremity condition. 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the March 28, 2022 decision, appellant submitted additional evidenceto OWCP. 

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.

4 A July 10, 2020 abdominal computerized tomography (CT) scan demonstrated a right pelvic kidney with an 

indeterminate mass warranting an ultrasound evaluation, and no acute post-traumatic anomaly. A July 14, 2020 

retroperitoneal transabdominal ultrasound study demonstrated a right renal cyst.
3

In a report dated September 11, 2020, Dr. Commerford diagnosed “abdominal pain caused 

by a crush injury on June 24, 2020.” She noted that appellant had undergone an abdominal surgery 

in January 2020 but that there was no documentation of any preexisting abdominal conditions.

OWCP accepted the claim for crushing injury of the abdomen. It paid appellant wage-loss 

compensation on the supplemental rolls from August 9 through September 11, 2020. 

On January 26, 2021 OWCP obtained a second opinion evaluation by Dr. Ross S. 

Myerson, Board-certified in occupational medicine, to determine the nature and extent of 

appellant’s employment-related conditions and her work capacity. In a February 9, 2021 report,

Dr. Myerson reviewed the medical record and a statement of accepted facts (SOAF). He noted 

that appellant ambulated with a cane. On examination, Dr. Myerson observed mild tenderness to 

palpation in the right lower abdominal quadrant, limited range of forward lumbar flexion, and 

diffuse tenderness to palpation in the lumbar area. He noted that a lumbar magnetic resonance 

imaging (MRI) scan had been performed but that the results had not been made available to him. 

Dr. Myerson opined that as there was no orthopedic diagnosis related to the work injury, 

appellant’slow back pain was not an exacerbation or aggravation ofthe June 24, 2020 employment 

injury. He found that appellant’s “lower abdominal tenderness is a work-related condition and has 

not yet resolved; however, there are no objective findings with respect to her abdominal 

symptoms.” Dr. Myerson noted that further treatment would not likely result in any improvement. 

On February 10, 2021 Dr. Myerson completed a Form OWCP-5c indicating that appellant 

could perform full-time work at the medium physical demand level, with no restriction on standing

and lifting up to 20 pounds due to a nonoccupational lumbar spine condition. 

In a February 12, 2021 report, Dr. Ruth noted performing an intra-articular injection. 

In a February 15, 2021 report, Dr. Commerford noted that appellant continued to have 

abdominal, back, and lower extremity pain. She held appellant off work. 

By decision dated February 24, 2021, OWCP terminated appellant’s wage-loss 

compensation effective that date. It found that the weight of the medical evidence rested with

Dr. Myerson’s February 9, 2021 second opinion report. OWCP noted that appellant’s claim 

remained open for medical benefits.

On March 30, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

Appellant subsequently submitted Dr. Ruth’s March 31, 2021 report of an intra-articular 

injection. 

OWCP paid appellant wage-loss compensation on the supplemental rolls for the period 

September 12, 2020 through February 12, 2021.

In an April 26, 2021 report, Dr. Commerford noted the recent onset of swelling in 

appellant’s hands and feet, hand tremors and jerking, forgetfulness, and occasional confusion. 

Appellant’s abdominal pain had improved, but her lumbar pain continued. Dr. Commerford 
4

diagnosed intention tremor, hypertension, pedal edema, and lumbar radiculopathy. She returned 

appellant to work effective May 26, 2021 with no heavy lifting. 

OWCP thereafter received reports by Dr. Commerford dated October 29, 2020 and 

March 30, 2021 noting abdominal and lumbar symptoms. 

On May 18, 2021 OWCP paid appellant wage-loss compensation on the supplemental rolls 

for the period February 13 through May 7, 2021.

On May 26, 2021 Dr. Ruth administered an intra-articular injection at L3-4. 

In a June 4, 2021 report, Dr. Ruth found appellant’s abdominal pain unchanged. He noted 

an impression of “[b]ilateral inguinal neuropathy after work injury -- likely secondary to acute 

exacerbation of her chronic lumbar radicular pain improved with epidural steroid injection,” and 

lumbosacral radiculopathy, greater in the right L4, L5, and S1 distributions. Dr. Ruth held 

appellant off work.

In a June 8, 2021 report, Dr. Commerford returned appellant to work effective 

June 23, 2021. 

A telephonic hearing was held before a representative of OWCP’s Branch of Hearings and 

Review on July 6, 2021 regarding the February 24, 2021 termination decision. Appellant stated 

that she had returned to work in a full-time light-duty position on June 23, 2021, but that her 

schedule had been reduced to four hours effective July 6, 2021.

Thereafter, appellant submitted a July 2, 2021 report by Dr. Ruth findingher disabled from 

work due to ongoing bilateral inguinal neuropathy and right-sided L4, L5, and S1 radiculopathy. 

He opined that appellant required continued treatment directly related to the accepted employment 

injury.

In an August 13, 2021 duty status report (Form CA-17), Dr. Commerford noted appellant’s 

symptoms of low back pain radiating to the left knee. She returned appellant to full-time work 

with restrictions. 

By decision dated September 7, 2021, an OWCP hearing representative affirmed OWCP’s

February 24, 2021 termination decision.

In a September 10, 2021 Form CA-17, Dr. Commerford maintained appellant on restricted 

duty. 

In a letter dated September 20, 2021, OWCP advised appellant that it had, inadvertently, 

paid her wage-loss compensation through May 7, 2021, beyond the date of the February 24, 2021 

termination decision. Therefore, it would not pay any additional claims for wage-loss 

compensation.

In a preliminary overpayment determination dated September 21, 2021, OWCP notified 

appellant of its preliminary finding that she received an overpayment of compensation in the 

amount of $7,575.28 for the period February 24 through May 7, 2021 because appellant had been 
5

paid wage-loss compensation for total disability following the termination of her wage-loss 

compensation on February 24, 2021. It indicated that she was without fault in the creation of the 

overpayment. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a reasonable repayment method and advised her that 

she could request a waiver of recovery of the overpayment. It further requested that she provide 

financial documentation, including copies of income tax returns, bank account statements, bills, 

pay slips, and any other records to support her reported income and expenses. Additionally, 

OWCP further provided an overpayment action request form and notified appellant that, within 30 

days of the date of the letter, she could request a final decision based on the written evidence or a 

prerecoupment hearing.

In response, appellant submitted an October 7, 2021 statement noting continued back and 

abdominal symptoms. 

In a November 24, 2021 report, Dr. Ruth diagnosed lumbar post-laminectomy syndrome. 

He performed surgical percutaneous implantation of neurostimulator electrodes as part of a spinal 

cord neuromodulation trial. In a follow-up report dated November 30, 2021, Dr. Ruth noted that 

the leads had migrated and would be reprogrammed.

By decision dated March 28, 2022, OWCP finalized the preliminary overpayment 

determination, finding that appellant had received an overpayment of compensation in the amount 

of $7,575.28 during February 24 through May 5, 2021 as she received wage-loss compensation 

following its termination. It found that she was without fault in the creation of the overpayment 

but denied waiver of recovery of the overpayment. OWCP required recovery of the overpayment 

by payment in full.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s benefits.5 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.6 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

5 M.M., Docket No. 17-1264 (issued December 3, 2018); Kelly Y. Simpson, 57 ECAB 197 (2005); PaulL. 

Stewart, 54 ECAB 824 (2003).

6 T.N., Docket No. 22-0721 (issued September 14, 2022); A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., 

Docket No. 18-1060 (issued November 1, 2018).

7 T.N., id.; R.L., Docket No. 20-1611 (issued September 30, 2022); C.R., Docket No. 19-1132 (issued October 1, 

2020); Del K. Rykert, 40 ECAB 284 (1988).
6

appoint a third physician (known as a referee physician or IME) who shall make an examination.8 

For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.9

ANALYSIS -- ISSUE 1

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

wage-loss compensation, effective February 24, 2021.

OWCP terminated appellant’s wage-loss compensation, effective February 24, 2021, based 

on the medical opinion of Dr. Myerson, the second opinion physician, who had determined in a 

February 9, 2021 report and February 10, 2021 Form OWCP-5c that appellant no longer had

employment-related disability due to the June 24, 2020 employment injury. However, a conflict 

of medical opinion between Dr. Myerson, for the government, and Dr. Commerford, for appellant,

remained unresolved.

10

 

Dr. Commerford, in reports dated from January 15 through February 15, 2021, related that 

appellant had not fully recovered from her accepted employment injury, and that she remained 

disabled. She noted Dr. Ruth’s diagnosis of ilioinguinal neuropathy and held appellant off work

due to continued abdominal pain. Dr. Commerford opined that appellant had poor stamina and

was at the time unable to stand for eight hours a day. 

Dr. Myerson, in his February 9, 2021 report, opined that appellant continued to have 

subjective abdominal tenderness related to the accepted June 24, 2020 employment injury. In his 

February 10, 2021 Form OWCP-5c, he found appellant able to perform full-time, medium-duty 

work, with lifting restricted to 20 pounds due to a nonoccupational lumbar spine condition. 

Dr. Myerson indicated that appellant could stand for eight hours a day. 

It is well established that where there are opposing medical reports of virtually equal 

probative value between an attending physician and a second opinion physician, 5 U.S.C. 

§ 8123(a) requires OWCP to refer the case to a referee physician to resolve the conflict. 11 The 

Board finds that the medical reports of Drs. Commerford and Myerson are in equipoise on the 

issue of whether appellant was capable of returning to work, and are thus in conflict. The Board,

therefore, finds that OWCP should have resolved this conflict of medical evidence before 

terminating appellant’s wage-loss compensation.12

8

5 U.S.C. § 8123(a); R.H., Docket No. 20-1442 (issued February 9, 2022); Q.S., Docket No. 20-0701 (issued 

November 10, 2021).

9 R.H., id.; Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

10 See R.H., supra note 8. Q.S., supra note 8.

11 Id.

12 Id.
7

As there remains an unresolved conflict of medical opinion as to whether appellant was 

physically able to return to work, OWCP failed to meet its burden of proof to justify termination 

of her wage-loss compensation.13

LEGAL PRECEDENT -- ISSUE 3

Section 8102(a) of FECA14 provides that the United States shall pay compensation for the 

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

performance of his or her duty.15 

OWCP’s regulations provide in pertinent part: “Compensation for wage loss due to 

disability is available only for any periods during which an employee ’s work-related medical 

condition prevents him or her from earning the wages earned before the work-related injury.”

16

 A 

claimant is not entitled to receive temporary total disability benefits and actual earnings for the 

same period.17 OWCP’s procedures also provide that an overpayment of compensation is created 

when a claimant returns to work, but continues to receive wage-loss compensation.18

ANALYSIS -- ISSUE 3

In light of the Board’s disposition of Issue 1, the Board finds that OWCP improperly 

determined that appellant received an overpayment of compensation in the amount of $7,575.28 

for the period February 24 through May 7, 2021. Therefore, the March 28, 2022 overpayment 

decision must be reversed.19

CONCLUSION

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

wage-loss compensation, effective February 24, 2021. The Board further finds that OWCP 

improperly determined that he received an overpayment of compensation in the amount of 

$7,575.28 for the period February 24 through May 7, 2021. 

13 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

14 Supra note 2.

15 5 U.S.C. § 8102(a).

16 20 C.F.R. § 10.500.

17 See Q.V., Docket No. 21-1188 (issued May 26, 2022); J.L., Docket No. 18-1266 (issued February 15, 2019); 

K.E., Docket No. 18-0687 (issued October 25, 2018); L.S., 59 ECAB 350, 352-53 (2008).

18 See J.S., Docket No. 17-0260 (issued December 28, 2017); B.H., Docket No. 09-0292 (issued September 1, 

2009); Federal (FECA) Procedure Manual, Part 6 --Debt Management, Initial OverpaymentActions, Chapter 6.200.1a 

(September 2020).

19 In light of the Board’s disposition of Issue 3, Issue 4 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the March 28, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 22, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board