United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANCHESTER VETERANS HOSPITAL,
Manchester, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-804
Issued: October 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2008 appellant filed a timely appeal of the January 9, 2008 decision of the
Office of Workers’ Compensation Programs which found an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$3,879.43 overpayment of compensation for the period March 14 to May 15, 2005; (2) whether
the Office properly determined that appellant was at fault in creating the overpayment of
compensation; and (3) whether the Office properly recovered the overpayment by withholding
$100.00 from continuing compensation payments.

FACTUAL HISTORY
On September 30, 2002 appellant, then a 55-year-old sewing machine operator, filed a
claim alleging that she developed a right shoulder injury while performing her work duties which
included pulling linen carts. The Office accepted her claim for right rotator cuff strain,
impingement syndrome and authorized a distal clavicle excision which was performed on
August 25, 2003. Appellant stopped work on August 25, 2003 and was placed on the periodic
rolls.
By letter dated June 30, 2003, the Office advised appellant of her eligibility for benefits.
In an attached Form CA-1008, the Office advised her of certain information concerning payment
of bills and compensation and dual benefits. The Office noted:
“Once you return to work, or obtain new employment, notify this office
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
In a letter dated November 17, 2003, the Office outlined appellant’s entitlement to
compensation benefits and her responsibility to return to work in connection with the accepted
injury. An attached EN1049 form provided:
“OVERPAYMENTS. To minimize the possibility of an overpayment of
compensation NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. Each payment shows the period for which payment is made.
If you have worked for any portion of this period, return the payment to this
office, even if you have already advised the [Office] that you are working….”
***
“CERTIFICATION. I have read the information contained in the EN1049 and
understand the conditions under which I may receive compensation and the items
I must report to the Department of Labor, Office of Workers’ Compensation
Programs, in connection with my claim. I agree to be bound by these conditions.
“I understand that willful failure on my part to comply with these conditions can
result in termination or forfeiture of benefits and liability for the resulting
overpayments….”
On February 7, 2005 the employing establishment offered appellant a job as a permanent
sewing machine operator. On March 8, 2005 appellant accepted the position and returned to
work on March 14, 2005. On June 15, 2005 she telephoned the Office to advise that she stopped
work in April 2005 and had not received compensation benefits. The Office instructed appellant
to submit a Form CA-7, claim for compensation, with supporting medical documentation.

2

In a letter dated June 27, 2005, the Office advised appellant that the offered position was
suitable, advised her of the sanctions for refusal of suitable work and allowed her 30 days to
reply. On July 27, 2007 it advised her that the position of a sewing machine operator was
suitable work. The Office afforded appellant 15 additional days to accept the job offer. In a
letter dated August 9, 2005, she disagreed with the proposed termination of benefits.
In a decision dated August 11, 2005, the Office terminated appellant’s compensation
under section 8106(c) on the grounds that she abandoned suitable work. On August 23, 2005
appellant requested an oral hearing.1
In correspondence dated August 30, 2005, the employing establishment noted that
appellant returned to limited duty on March 14, 2005. Prior to that time, she was on the periodic
rolls receiving compensation for her work-related injury. The employer noted that appellant’s
case history revealed that she continued to receive compensation through May 14, 2005 and that
an overpayment of benefits was created.
In a November 23, 2005 overpayment discovery notification form, the Office noted that
appellant returned to work on March 14, 2005 and compensation benefits continued to be paid
through May 14, 2005. In a February 1, 2006 case history inquiry report, for the period
October 17, 2003 to May 14, 2005, the Office noted that from February 20 to March 19, 2005
appellant was paid net benefits of $1,389.96 on March 19, 2005, from March 1 to 19, 2005 she
was paid net benefits of $39.30 on April 8, 2005, from March 20 to April 16, 2005 she was paid
net benefits of $1,447.88 on April 16, 2005 and from April 17 to May 14, 2005 she was paid net
benefits of $1,447.88 on May 14, 2005. All checks were directly deposited into appellant’s
account.2
In a supplemental roll payment worksheet dated May 26, 2006, the Office calculated that
appellant was overpaid gross benefits of $3,879.43 for the period March 14 to May 14, 2005.
The Office noted that appellant returned to work full-time limited duty on March 14, 2005 and
was paid wage-loss compensation for the period March 14 to May 14, 2005, a total of 62 days.
The Office calculated the overpayment to be $3,879.43.
In a June 6, 2006 letter, the Office made a preliminary determination that appellant had
received a $3,879.43 overpayment of compensation from March 14 to May 14, 2005 because she
received wage-loss benefits for temporary total disability after she had returned to full-time
limited-duty work on March 14, 2005. Although appellant stopped working in April 2005 she
1

The Office did not acknowledge the hearing request and, on November 16, 2005, appellant requested
reconsideration. After the Office denied the reconsideration request on January 31, 2006, she appealed the
termination and reconsideration decisions to the Board. On November 28, 2006 the Board remanded the case
finding that the Office should have acted on appellant’s timely hearing request prior to issuing a decision on her
reconsideration request. The Board directed the Office to take appropriate action on the hearing request. Docket
06-809 (issued November 28, 2006).
2

In a separate decision, the Office determined that appellant received an overpayment of compensation of
$250.92 for the period September 24, 2004 to January 22, 2005 because postretirement life insurance proceeds were
not deducted from appellant’s compensation. In a memorandum dated June 29, 2006, the Office terminated the
collection action and wrote off the overpayment.

3

was not entitled to compensation benefits because she abandoned her limited-duty job. The
Office found that appellant was at fault in creating the overpayment because she accepted
payment that she knew or reasonably should have know to be incorrect. It informed appellant
that she had the right to submit evidence or argument if she disagreed with the Office’s finding.
The Office also informed appellant that she had a right to a prerecoupment hearing before an
Office hearing representative. It instructed appellant to complete an enclosed overpayment
recovery form and submit supporting documentation.
In a decision dated July 31, 2007, an Office hearing representative reversed the Office’s
August 11, 2005 decision terminating her monetary compensation. The hearing representative
found that suitable light duty was not offered to appellant. She noted that the February 7, 2005
job offer was deficient as it failed to provide a complete and accurate job description or the
physical requirements of the offered position. The hearing representative instructed the Office to
reinstate compensation effective the date of appellant’s work stoppage in April 2005.
By decision dated January 9, 2008, the Office found that appellant received a $3,879.43
overpayment of compensation from March 14 to May 15, 2005 for which she was at fault in
creating. It advised that the overpayment occurred because appellant returned to work on
March 14, 2005 and continued to receive compensation for total disability until May 15, 2005.
The Office found that appellant was at fault in creating the overpayment because she reasonably
should have been aware that she was not entitled to compensation benefits while working. It
stated that the overpayment of compensation would be recovered by withholding $100.00 from
each of appellant’s continuing compensation payments beginning February 16, 2008.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Act3 states:
“(a) While an employee is receiving compensation under this subchapter, or if he
has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have
continued, he may not receive salary, pay, or remuneration of any type from the
United States, except-(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the Department of Veterans Affairs unless
such benefits are payable for the same injury or the same death; and
(4) retired, retirement pay, retainer pay or equivalent pay for service in the
Armed Forces or other uniformed services....4
3

5 U.S.C. § 8116(a).

4

Id.

4

ANALYSIS -- ISSUE 1
The record indicates that appellant returned to full-time work at the employing
establishment on March 14, 2005. Appellant continued to receive compensation for temporary
total disability through May 15, 2005. As noted above, she is not entitled to receive
compensation for total disability after she has returned to work. Accordingly an overpayment of
compensation has been created.
Since the evidence indicated that appellant returned to full-time work at wages equal to or
exceeding his date-of-injury wages on March 14, 2005, she would not be entitled to any
compensation for wage loss after that date. The Office reported that appellant abandoned her
limited-duty position in April 2005 and was therefore not entitled to compensation benefits. The
Office determined that there was an overpayment of compensation in the amount of $3,879.43
for the period March 14 to May 15, 2005. The overpayment worksheet dated May 26, 2005 sets
forth the inclusive dates where appellant returned to work and also received compensation
benefits and determined that the debt owed was $3,879.43.
However, the hearing
representative’s July 31, 2007 decision reversed the Office’s August 11, 2005 decision
terminating appellant’s compensation under section 8106(c) and instructed the Office to reinstate
her compensation as of April 2005.
The Board finds that the period of the overpayment, March 14 to May 15, 2005, is
incorrect based on the hearing representatives July 31, 2007 decision that appellant was entitled
to compensation benefits retroactive to her work stoppage in April 2005. Consequently, the
period of the overpayment would be from March 14, 2005 to an unspecified date in April 2005.5
The Board finds that the Office properly found that appellant received an overpayment of
compensation. However, the Office did not properly determine the period of the overpayment.
Consequently, the amount of overpayment found by the Office, $3,879.43, is also incorrect. The
case will be remanded to the Office to determine the date that appellant stopped work in
April 2005 and a new determination of the amount of the overpayment of compensation. The
Office should provide a detailed memorandum explaining its calculation and any other relevant
information.
As the Board has set aside the Office’s finding on the amount of the overpayment, the
case is not in posture for a decision regarding fault or recovery of the overpayment from
continuing compensation benefits.
CONCLUSION
The Board finds that appellant received an overpayment of compensation beginning
March 14, 2005. The Board finds that the Office incorrectly determined the period of the
overpayment and the amount of the overpayment and that the Office must further develop the

5

The hearing representative did not specify and the record does not indicate the exact date of appellant’s work
stoppage in April 2005.

5

record regarding the period and the amount of the overpayment. The Board further finds that the
case is not in posture for a decision regarding fault or recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded in part for
further action consistent with this decision.
Issued: October 9, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1277
Issued: October 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 1, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 5, 2008 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $17,964.13 overpayment of
compensation; (2) whether the Office abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether the Office properly required repayment of the overpayment by
deducting $325.00 from appellant’s compensation payments every four weeks.
FACTUAL HISTORY
The Office accepted that on June 21, 2004 appellant, then a 51-year-old maintenance
mechanic supervisor, sustained a left bicep tendon rupture, left shoulder strain, left wrist sprain,

left hand sprain, left carpal tunnel syndrome and articular cartilage disorder of his left hand when
he grabbed a door jamb while falling. He underwent a left bicep tendon repair on July 9, 2004
and left wrist arthroscopic surgery on February 23, 2005. In early 2005 he was receiving total
disability compensation from the Office.
Appellant took early retirement from the employing establishment effective
March 19, 2005. A March 19, 2005 notification of personnel action form (Form 50-B) shows
that for taking early retirement he received a $25,000.00 buyout payment on March 19, 2005
known as a voluntary separation incentive payment (VSIP).1 Appellant continued to receive
total disability compensation.
In an October 19, 2007 notice, the Office advised appellant of its preliminary
determination that he received a $17,964.13 overpayment of compensation because he received
$25,000.00 in VSIP while receiving total disability compensation. It also determined that
appellant was not at fault in the creation of the overpayment and provided him with an
opportunity to request waiver of the overpayment and submit financial information.2
In an accompanying October 19, 2007 memorandum, the Office detailed how the
overpayment was calculated:
“Calculation of period of overpayment -- The [Form 50-B] dated March 19, 2005
indicates that the claimant’s hourly salary on that date was $35.14. $35.14 x
2,087 hours in a work year/52 weeks = $1,410.33 weekly salary. $25,000 total
VSIP payout/$1,410.33 [weekly salary] = 17.726 weeks of salary for the period
during which the payout ran.
“17.726 weeks x 7 days in a week = 124.08 days. March 19, 2005 (the start date
of the VSIP) + 124 days (rounded down) = an ending date of July 20, 2005 for the
payout. The total period of time during which the separation incentive pay ran
was therefore March 19, 2005 to July 20, 2005.
“The Office should have suspended the claimant’s entitlement to all compensation
payments for this entire period by a 100 percent offset for the number of weeks
that the separation pay represented. This was not done, as the Office was not
made aware that the claimant had received the separation incentive until
February 2006, well after the period to be offset had ended.”3

1

The form shows that appellant was making $35.14 per hour on March 19, 2005. Appellant did not advise the
Office about this buyout until he sent it a letter dated February 22, 2006
2

The Office requested that appellant complete an overpayment questionnaire Form OWCP-20 even if he did not
request waiver of the overpayment.
3

The Office submitted payment records showing that appellant received $17,964.13 in Office compensation
between March 19 and July 20, 2005.

2

In an October 26, 2007 letter, appellant requested waiver of the $17,964.13 overpayment.
He asserted that he was not aware that he could not receive Office payments and VSIP monies at
the same time. Appellant submitted a Form OWCP-20 completed on October 27, 2007 in which
he listed monthly household income totaling $7,960.00 and monthly expenses totaling
$8,533.00. He indicated that he had about $35,000.00 in assets including a mountain cabin
worth about $20,000.00, three motorcycles and a trailer worth about $7,800.00, a checking
account balance of $6,200.00 and a savings account balance of $1,841.00.4
In a March 5, 2008 decision, the Office made a final determination that appellant
received a $17,964.13 overpayment of compensation and that the overpayment was not subject
to waiver. It determined that he was not entitled to waiver because appellant’s monthly income
exceeded his monthly expenses by more than $50.00. The Office was also found that the
overpayment would be recovered by deducting $325.00 from appellant’s compensation
payments every four weeks. It indicated that a telephone conference was held with him on
February 27, 2008 and the decision contains a detailed summary indicating that appellant and his
wife had $7,780.00 in monthly income and $7,353.00 in monthly expenses.5 The Office
determined that several claimed expenses, including $235.00 for a cell phone, $100.00 for
storage and $273.00 for medical expenses for appellant’s 22-year-old son, could not be included
in the monthly expenses tally because they were not ordinary and necessary expenses.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act 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.7 Section 8116, however, limits the right of an
employee to receive compensation. While an employee is receiving compensation he may not
receive salary, pay, or remuneration of any type from the United States.8 More specifically,
section 10.421 of the implementing regulation provides that an employee may not receive
compensation for total disability concurrently with separation pay.9 When the Office discovers
concurrent receipt, it must declare an overpayment of compensation and give the usual due
4

Appellant indicated that he used the saving account monies to pay taxes, insurance and “budgeted yearly
expenses.” He noted that he had a wife as well as a 16-year-old son and a 22-year-old son who lived at home.
Appellant submitted numerous financial documents including bill statements showing amounts due.
5

The listing of monthly expenses was far more detailed than that provided in the Form OWCP-20 completed on
October 27, 2007.
6

The Office indicated that, although appellant asserted that his 22-year-son had attention deficit disorder and was
unable to hold a job for more that six months at a time, there was no evidence that he was a full-time college student
or was incapable of supporting himself. For these reasons, the expenses relating to the son could not be included in
his monthly expenses.
7

5 U.S.C. § 8102(a).
8

Id. at § 8116(a) (with specified exceptions).

9

20 C.F.R. § 10.421(c) (1999).

3

process rights.10 The Board has held that where separation pay is based an amount of money, the
Office should suspend compensation payments for the period in question, effective the date of
separation, by a 100 percent offset for the number of weeks (not the amount of money) that the
separation pay represents.11
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $17,964.13 overpayment of compensation. The
evidence establishes that he received $25,000.00 for electing early retirement effective
March 19, 2005 under the VSIP program while receiving total disability compensation from the
Office.12 It properly calculated that this dual payment meant that appellant received a
$17,964.13 overpayment. Applying the relevant standards, the Office first correctly calculated
his weekly pay based on the pay he was receiving on March 19, 2005.13 It then calculated the
number of weeks (based on this weekly pay rate) that the $25,000.00 separation pay represented.
The Office found that the separation pay represented the period March 19 to July 20, 2005 and
presented documents showing that appellant received $17,964.13 in disability compensation
during this period. Therefore, it properly determined that he received a $17,964.13 overpayment.
The fact and amount of the overpayment are affirmed.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within its discretion pursuant to statutory guidelines.14 These statutory guidelines are
found in section 8129(b) of the Act which states: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”15 Since the Office found appellant
to be without fault in the matter of the overpayment, then, in accordance with section 8129(b), it

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

11

See Lynee M. Schaak, Docket No. 05-695 (issued November 9, 2005). Similarly, where separation pay is
based on weeks of pay, the Office should suspend compensation payments for the period in question, effective the
date of separation, by a 100 percent offset for the designated number of weeks of pay. The Board has noted that the
duel payment calculation method detailed in the Office procedure manual, which uses different calculations
depending on whether separation pay is based on weeks of pay or on amount of pay, would lead to unfairly disparate
results. Id.
12

See supra notes 9 and 10 and accompanying text.

13

See supra note 11 and accompanying text.

14

See Robert Atchison, 41 ECAB 83, 87 (1989).

15

5 U.S.C. § 8129(b).

4

may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of the Act nor be against equity and good conscience.16
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of the Act or would be against equity and good conscience are set forth in sections
10.322 and 10.323, respectively, of the Code of Federal Regulations. Section 10.322(a)
provides, generally, that recovery of an overpayment would defeat the purpose of the Act if
recovery would cause hardship by depriving the overpaid individual of income and resources
needed for ordinary and necessary living expenses and, also, if the individual’s assets, those
which are not exempt from recovery, do not exceed a resource base of $3,000.00 (or $5,000.00 if
the individual has a spouse or one dependent, plus $600.00 for each additional dependent).17
Section 10.323 provides, generally, that recovery of an overpayment would be against equity and
good conscience if: (1) the overpaid individual would experience severe financial hardship in
attempting to repay the debt, with “severe financial hardship” determined by using the same
criteria set forth in section 10.322; or (2) the individual, in reliance on the payment which created
the overpayment, relinquished a valuable right or changed his position for the worse.18
ANALYSIS -- ISSUE 2
The Board finds that the Office did not abuse its discretion by refusing to waive recovery
of the overpayment. Appellant has not established that recovery of the overpayment would
defeat the purpose of the Act because he has not shown both that he needs substantially all of his
current income to meet ordinary and necessary living expenses and that his assets do not exceed
the allowable resource base. The record reveals that his assets exceed the allowable resource
base. Appellant’s asset base would be $6,200.00 in that he has a wife as a dependent as well as a
16-year-old son as a dependent. However, the record reveals that he has substantial assets of
about $35,000.00.19 Because appellant has not met the second prong of the two-prong test of
16

Appellant argued that the overpayment should be waived because he was not found to be at fault in its creation
but he would only be entitled to such waiver if it were shown, under the standards described below, that recovery of
the overpayment would defeat the purpose of the Act or be against equity and good conscience.
17
20 C.F.R. § 10.322(a). Section 10.322 defines the terms “income,” “expenses” and “assets.” 20 C.F.R.
§ 10.322(b), (c) and (d). For waiver under the “defeat the purpose of the Act” standard, a claimant must show both
that he needs substantially all of his current income to meet ordinary and necessary living expenses and that his
assets do not exceed the applicable resource base. See George E. Dabdoub, 39 ECAB 929, 935-36 (1988);
Robert E. Wenholz, 38 ECAB 311, 314 (1986). An individual is deemed to need substantially all of his current
income to meet ordinary and necessary living expenses if his monthly income does not exceed monthly expenses by
more than $50.00. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6a(1) (September 1994); Connie L. Potratz-Hasson, 42 ECAB 359, 363 (1991); 20 C.F.R.
§ 10.323.
18

20 C.F.R. § 10.323.

19

Appellant listed assets including a mountain cabin worth about $20,000.00, three motorcycles and a trailer
worth about $7,800.00, a checking account balance of $6,200.00 and a savings account balance of $1,841.00. He
indicated that he used the savings account monies to pay taxes, insurance and “budgeted yearly expenses,” but even
if the savings account monies were not considered to be assets appellant would still have assets which well exceeded
his resource base.

5

whether recovery of the overpayment would defeat the purpose of the Act, it is not necessary for
the Office to consider the first prong of the test, i.e., whether his current income exceeds his
current ordinary and necessary living expenses by more than $50.00.20
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.21
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of the Act or be against equity and good conscience, he has failed to show that the
Office abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.321 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“Whenever an overpayment has been made to an individual who is entitled to
further payments, proper adjustment shall be made by decreasing subsequent
payments of compensation, having due regard to the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual,
and any other relevant factors, so as to minimize any resulting hardship upon such
individual.”22
ANALYSIS -- ISSUE 3
The Board further finds that the Office properly required repayment of the overpayment
by deducting $325.00 from appellant’s compensation payments every four weeks. The record
supports that, in requiring repayment of the overpayment by deducting $325.00 from his
compensation payments every four weeks, it took into consideration the financial information
submitted by appellant as well as the factors set forth in section 10.321 and found that this
method of recovery would minimize any resulting hardship on appellant. Therefore, the Office
properly required repayment of the overpayment by deducting $325.00 from appellant’s
compensation payments every four weeks.

20

The Board notes that the Office chose to evaluate whether appellant met the first prong of 20 C.F.R.
§ 10.322(a) but this would not preclude the Board from evaluating whether appellant meet the second prong of 20
C.F.R. § 10.322(a).
21

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

22

20 C.F.R. § 10.321(a). See Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

6

CONCLUSION
The Board finds that appellant received a $17,964.13 overpayment of compensation and
that the Office did not abuse its discretion by refusing to waive recovery of the overpayment.
The Board further finds that the Office properly required repayment of the overpayment by
deducting $325.00 from appellant’s compensation payments every four weeks.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 5, 2008 decision is affirmed.
Issued: October 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Sheila F. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1641
Issued: August 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 19, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 7, 2008 merit decision denying his claim and a May 27, 2009
nonmerit decision denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2 and
501.3, the Board has jurisdiction over the merits of the claim.1
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his
cervical condition is causally related to factors of his federal employment; (2) whether the Office
properly denied his request for a subpoena; and (3) whether the Office properly refused to reopen
his case for merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 9, 2007 appellant, then a 53-year-old rehabilitation passport clerk, filed an
occupational disease claim for a neck condition due to continued and repeated stress of his work
1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days. 20 C.F.R. § 501.3(e) (2008).

environment. He was first aware of his condition and its relationship to his job on
March 9, 2007. Appellant indicated that his physician believed that his neck problem was an
expansion of a previous condition. The employer advised that he worked intermittently as a
rehabilitation clerk processing passport applications from August 21, 2006 to April 9, 2007,
when he stopped work. The file reflects appellant has several accepted claims relating to a right
shoulder condition for which he had arthroscopic surgery on August 18, 1993. He worked with
restrictions on lifting and reaching above the shoulder.
Appellant claimed that he was required to work outside of his restrictions using both
shoulders. He had to look up and down and from side to side while looking down to scratch bar
codes, box mail, stamp scan mail, assist customers with applications, lift a camera, exchange
information, pull express labels, staple and make copies. Appellant submitted, a July 10, 2006
rehabilitation position offer, which noted passport duties, signed by him on August 21, 2006. In
a November 3, 2006 report, Dr. Harold B. Betton, a Board-certified family physician, noted that
he did not have an opportunity to review appellant’s current job offer prior to appellant accepting
it. He advised that appellant’s shoulder pain might be related to his work, particularly if he
worked outside of the restrictions of the current job offer.
In an April 25, 2007 statement, Karen Collier, appellant’s supervisor, delineated his
passport job duties. She noted that he did not perform any task that required physical exertion
such as lifting, pushing, pulling, bending or stooping and that other passport clerks were
available for assistance. Appellant was relieved of the two button process of taking passport
pictures and was given an electric stapler. He also scratched out bar codes and his workstation
was at the same level as that in passports.
In an April 27, 2007 letter, Nancy Campbell, an injury compensation specialist,
controverted the claim. She stated that appellant’s current job did not involve stress on his right
shoulder or strenuous activity. It consisted of processing about 18 passports a day. Appellant
did not fill out the passport application for the customer but only reviewed the application for
completeness. He filled out the customer’s driver’s license number, passport agent information
and the transmittal log. Appellant processed an average of 12 passports a day within an eighthour tour of duty between February 28 and April 6, 2007. Ms. Campbell noted that he was
placed on total disability by his treating physician on April 9, 2007 under another claim.
In a November 23, 2007 letter, Nancy Carmichael, an injury compensation specialist,
stated that there were no continued stress situations involving appellant’s neck. She noted that a
second opinion specialist had found appellant capable of returning to work without restrictions.
Ms. Carmichael reiterated that appellant only reviewed passport applications for completeness
and provided a copy of the application. She stated that his job did not require excessive writing
and he was allowed to work at his own speed.
In an October 16, 2007 statement, Ms. Collier noted that appellant had been on limited
duty since 1995 and was off work since April 6, 2007 under the other Office claim. She denied
that he was forced to work outside his restrictions or that he was required to box mail.
Ms. Collier submitted copies of appellant’s box rings to support that he did not work in that
section from December 26, 2006 to April 6, 2007. She stated that 5 to 10 percent of his duties
consisted of processing passport applications, which did not require using either shoulder or

2

constantly looking up and down. Appellant was not the sole passport agent and did he perform
such duties daily for eight hours. Ms. Collier submitted supporting statements from other
passport agents. Appellant also greeted and assisted customers in finding appropriate forms.
Ms. Collier concluded that his description of his job duties was inaccurate.
In an October 15, 2007 statement, Kelly Neal, sales and distribution clerk, advised that
she processed about 10 to 20 percent of the passport applications, which involved reviewing the
applications, taking passport pictures and accepting application fees. Appellant processed a
portion of the applications but was not allowed to accept the processing fees as he was not
authorized to handle cash. In an October 15, 2007 witness statement, In-Yol Moore, sales and
distribution clerk, noted three full-time sales and distribution clerks and one clerk processed
passport applications. Since January 2007, Ms. Neal processed about 50 percent of the passport
applications, while the two other sales and distribution clerks processed about 40 percent of the
applications. She estimated that appellant processed about 10 percent of the applications without
accepting processing fees.
In a November 14, 2007 report, Dr. Bernard Crowell, an orthopedic surgeon to whom
appellant was referred by Dr. Betton, noted that appellant reported a long history of chronic right
shoulder pain that started with a 1992 job injury. Appellant had right shoulder surgery in 1995,
but had continued pain and discomfort after being placed on restrictions. On February 6, 2007
appellant filed a claim for right shoulder problems and left shoulder pain with neck pain and pain
radiating into his arms. A May 7, 2007 right shoulder magnetic resonance imaging (MRI) scan
showed moderate rotator cuff tendinopathy and peritendinitis. Cervical spine x-rays showed
normal disc spaces with ossification at C5-6 with decreased vertebral height with mild spurring.
Dr. Crowell noted that this was probably from the old 1992 injury. A June 20, 2007 cervical
spine MRI scan showed broad-based displacement with left foraminal position at C6, along with
broad-based bulge and prominent biforaminal disc protrusion at C6-7 with abutment of the C7
root. Dr. Crowell stated that appellant had surgery on September 19, 2007. He noted that there
was a possibility that appellant might have sustained a shoulder and cervical injury in the early
1990s. However, because of Dr. Crowell’s overriding shoulder pain, the cervical symptomology
and pathology may have been overlooked as it progressed over the years. He explained that this
was why appellant never fully recovered and his symptoms progressed. Dr. Crowell stated at
times it was possible for a herniated nucleus pulposus to progress to cervical spine degenerative
disc disease with stenosis and be masked by shoulder pathology unless there was a high degree
of suspicion or suboptimal results after shoulder surgery.
In a November 26, 2007 report, Dr. Betton noted treating appellant since the early
1990’s. He stated that appellant’s work as a postman, where he carried a shoulder bag for many
years, was the nexus for the initial shoulder injury. Dr. Betton advised that surgery and physical
therapy did not improve appellant’s condition and he habitually complained of being worked
outside of his restrictions. A cervical MRI scan showed disc disease and, after conservative
treatment failed, appellant had surgery that improved the shoulder pain and resolved the neck
pain. Dr. Betton opined that appellant’s cervical spine and shoulder problems “antedate to the
original injury.” He stated that factors that cause shoulder injuries, such as lifting and carrying,
frequently cause cervical spine discopathy. Appellant had no other problems that would have
otherwise caused his neck complaints.

3

In a December 5, 2007 decision, the Office denied appellant’s claim finding that the
evidence did not establish the employment activities as alleged and there was insufficient
medical evidence relating his cervical condition to the claimed events.
On January 2, 2008 appellant’s attorney requested an oral hearing. She contended that
the repetitive nature of appellant’s job, which resulted in the accepted right shoulder claims,
caused cervical disc disease.
In a February 6, 2008 letter, the Office acknowledged appellant’s hearing request and
advised him that if he wished to request a subpoena of witnesses or documents “you must file
your request no later than 60 days from the date of your initial request for hearing.” It noted that
any subpoena request “should also clearly explain why the testimony or evidence is directly
relevant to the issues to be addressed at the hearing and why the subpoena is the best and only
method to obtain such evidence.”
A telephonic hearing was held May 7, 2008. Appellant addressed his duties as a
rehabilitation passport clerk and described repetitive nature of passport work and
lifting/adjusting the camera. He stated that the electric stapler never worked and he used a
manual stapler. Appellant pulled labels and did return sender mail. He had to turn to get express
labels and scratching out bar codes and stamping mail were repetitive. Appellant worked
overtime on passport and was not provided any help when he asked. He contended that he was
the only person designated to do passports. Although there were passport clerks, they did not
help until after he got hurt. Appellant estimated that he received 40 to 50 passport applications
daily. He contended that Dr. Betton did not agree to the job and that his other occupational
disease claim for repetitive activity was accepted on February 6, 2007.
After the hearing, appellant submitted a further description of the passport application
process. He requested that subpoenas be issued for witnesses and for the production of books
and videotapes regarding his duties. Appellant listed individuals he wanted to subpoena. He
further stated that videotapes were made of him doing passport duties, when rules were changed
requiring everyone leaving the country to have a passport.
In a May 7, 2008 witness statement, Howard Jackson, custodian, advised that appellant
did passport work from the time he began his tour at 10:00 a.m. until about 5:00 or 5:30 p.m. He
stated that appellant sometimes worked overtime and had no help. In a May 7, 2008 statement,
Jewel Williams, window clerk, stated that she saw appellant doing passport duties.
Appellant submitted additional medical evidence from Dr. Betton and Dr. Crowell, who
stated that appellant underwent an anterior cervical fusion at C5-6 and C6-7 on
September 19, 2007. In a March 11, 2008 report, he reiterated that the cervical injury was
overlooked due to the shoulder injury that masked the cervical pathology.
In a May 29, 2008 statement, Sharon Norman, a clerk, described passport processing
duties and noted that she had processed 25 or more passports in a day. In a May 26, 2007
statement, Cynthia Lynn noted the steps involved in the passport process. She advised three
clerks were trained in the passport process (Ms. Neal, Jenny Moore and herself) and they showed
appellant the passport process when he was sent to their office.

4

By decision dated July 7, 2008, an Office hearing representative affirmed the
December 5, 2007 decision. The hearing representative found that, while appellant processed
passports, there was a discrepancy between his account of his duties and that provided by the
employing establishment. She found that his allegations concerning his work actives were not
credible as his testimony and varied written statements described his duties. The hearing
representative also denied appellant’s request for a subpoena as it was not requested until after
the hearing and did not sufficiently explain why a subpoena was the best and only method to
obtain such evidence.
Appellant requested reconsideration. In a July 26, 2008 letter, counsel argued that
appellant’s job consisted of repetitive activities since he received his first modified job and, prior
to his passport job, he had duties involving casing, lifting and boxing mail as well as working
with certified mail, store stock, completing forms and other duties as directed. In his current job,
appellant worked at least seven hours processing passports and one hour casing mail in the box
section. Counsel stated that there was a surge in passport applications due to a change in the law
that was noted in a newspaper articles that she attached. Appellant was not given additional
assistance to perform these activities and worked 9:00 a.m. to 7:00 p.m. processing passport
applications. Counsel advised that his claim was for an aggravation or worsening of a
preexisting condition. She contended that appellant’s cervical condition related back to the 1992
injury and had been masked by the shoulder pathology. Appellant submitted: an October 22,
2007 letter commemorating his 35 years of service; a motion to enforce settlement of an Equal
Employment Opportunity claim; newspaper articles concerning passport regulations; medical
records from Dr. Betton and Dr. Crowell; and a June 20, 2007 report from Dr. Thomas P.
Rooney, a Board-certified orthopedist.2
In a May 27, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds the evidence submitted was insufficient to warrant merit review of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.5

2

Dr. Rooney noted appellant’s history and examination findings. He did not address appellant’s passport duties
relative to the October 9, 2007 occupational diseased claim.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

5

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant10 and must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS -- ISSUE 1
It is not disputed that during the period August 21, 2006 to April 9, 2007 appellant
worked as a clerk processing passport applications, without accepting application fees and
performed other duties such as greeting and assisting customers in finding forms, scratching bar
codes and stamping scanned mail. The evidence reflects that appellant processed about 10
percent of the passport applications received. Consequently, the evidence from employing
establishment management and clerks, supports that appellant performed passport processing.
The evidence does not substantiate appellant’s assertions that he processed 40 to 50
passport applications for eight hours a day without help or that he worked overtime on such
duties that involved significant repetitive activity.13 While appellant submitted statements from
Mr. Jackson, Ms. Norman and Ms. Williams who noted seeing appellant perform passport duties,
6

Solomon Polen, 51 ECAB 341 (2000).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Ernest St. Pierre, 51 ECAB 623 (2000).

9

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, 54 ECAB 306 (2003).

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

See H.G., 59 ECAB ___ (Docket No. 07-2397, issued June 11, 2008) (an employee’s statements must be
consistent with the surrounding facts and circumstances as well as the employee’s subsequent course of action; an
employee has not met his burden of proof where there are inconsistencies in the record that cast serious doubt on the
validity of the claim).

6

these statements are not specific as to when he was observed or the nature or extent of the duties.
The employing establishment provided statements from individuals supporting that from
February 28 to April 6, 2007, appellant averaged processing about 12 passports a day and
processed about 10 percent of the applications. Appellant has not presented sufficient evidence
to support his assertions of performing more strenuous and repetitive duties for eight or more
hours daily. The hearing representative considered this evidence and appellant’s testimony and
did not find his testimony credible that his work activities were repetitive or outside of his
restrictions. She noted that appellant’s testimony and written evidence described a variety of
actions that did not seem strenuous, repetitive, or outside of his work restrictions. The Board
finds that the hearing representative properly weighed the circumstances of the case and
exercised sound discretion and logic in drawing conclusions based on the factual information in
the claim.14 The weight of the evidence fails to substantiate appellant’s assertions pertaining to
the extent and duration of his work activities.
Appellant also has not submitted sufficient medical evidence to establish that his passport
or other work activities caused or aggravated his claimed neck condition. He alleged that
Dr. Betton did not approve of his rehabilitation passport clerk position and referenced the
physician’s November 3, 2006 report. However, this medical report is not directly relevant to
the October 9, 2009 occupational disease claim in which appellant indicated that he first became
aware of his condition and its relation to his employment in March 2007. The issue before the
Board does to pertain to the propriety of job offers that may have been made in other claims.15
Dr. Betton’s November 3, 2006 report predates the period at issue in this claim and does not
address how processing an average of 12 passport applications a day caused or aggravated the
claimed neck condition.
The reports from Dr. Crowell and Dr. Betton provide, at best, speculative opinions that
appellant’s cervical spine problems are work related or relate to the injury in another claim not
presently before the Board. In a November 14, 2007 report, Dr. Crowell speculated that it was
possible appellant may have sustained both a shoulder and cervical injury in the early 1990s but
that the cervical symptomology may have been overlooked due to appellant’s shoulder condition.
This report does not clearly address how performing passport duties, of as noted, in 2006 and
2007 caused or aggravated the claimed neck condition. To the extent, Dr. Crowell supports
causal relationship, he does not demonstrate a familiarity with an accurate factual background
regarding the present claim and he couched his opinion in speculative terms. Thus, his opinion is
of limited probative value.16 In a November 26, 2007 report, Dr. Betton explained that factors
that cause shoulder injuries, such as lifting and carrying, frequently cause spine discopathy.
However, he did not provide any medical explanation as to whether there was any medical
connection between the accepted work duties and appellant’s cervical condition. Dr. Betton did
not discuss the evidence of record. He did not address how the lifting performed by appellant
14

Sharon J. McIntosh, 47 ECAB 754, 757 (1996) (the Board may rely on the discretion of the hearing
representative in making credibility determinations when clearly explained and based on the weight of evidence).
15

To the extent appellant contends that he has a consequential injury arising out of an injury in another claim, it is
not issue in this claim.
16

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).

7

caused the claimed condition. No other medical reports explain how appellant’s passport duties
or other established work duties either caused or aggravated the claimed neck condition.
The Board finds that appellant did not submit sufficient medical evidence based on an
accurate factual background establishing that his accepted work duties caused or aggravated the
claimed neck condition. Appellant did not meet his burden of proof.
On appeal, appellant’s attorney contends that the medical evidence of record supports
that the original injury appellant sustained in 1992 was sufficient to cause a shoulder injury and a
neck injury and that the shoulder pathology masked the neck condition. These arguments do not
pertain to the occupational claim that is before the Board concerning appellant’s work during
2006 and 2007.17
LEGAL PRECEDENT -- ISSUE 2
Section 8126 provides that the Secretary of Labor, on any matter within her jurisdiction,
may issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles.
Office regulations provide that a claimant may request a subpoena, but the decision to grant or
deny such a request is within the discretion of the hearing representative, who may issue
subpoenas for the attendance and testimony of witnesses and for the production of books,
records, correspondence, papers or other relevant documents. Subpoenas are issued for
documents only if they are relevant and cannot be obtained by other means and for witnesses
only where oral testimony is the best way to ascertain the facts.18
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.19 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearing process and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must submit the request in writing and send
it to the hearing representative as early as possible, but no later than 60 days (as evidenced by
postmark, electronic marker or other objective date mark) after the date of the original hearing
request.20
The Office hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable

17

See supra note 15.

18

5 U.S.C. § 8126; 20 C.F.R. § 10.619; G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008).

19

L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

20

20 C.F.R. § 10.619(a)(1); G.T., supra note 18.

8

exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.21
ANALYSIS -- ISSUE 2
On January 2, 2008 appellant requested an oral hearing which was held on May 7, 2008.
On February 6, 2008 the Office advised appellant that a subpoena request must be made within
60 days after the date of the hearing request. On June 3, 2008 it received appellant’s request for
subpoenas of witnesses and evidence. In a July 7, 2008 decision, an Office hearing
representative denied appellant’s request to subpoena the requested witnesses and documents.
She found appellant’s subpoena request was over 60 days from the date of his January 2, 2008
initial request for a hearing. The hearing representative also noted that appellant provided two
written statements from two of the witnesses he requested to be subpoenaed and that the record
also contained a witness statement from Ms. Neal. The hearing representative found that
appellant offered no explanation as to why a subpoena would be the best and only method to
obtain the evidence he requested.
The Board finds that the hearing representative properly denied appellant’s subpoena
request as the request was clearly untimely since it was not made until after the hearing was held
and more than 60 days after the January 2, 2008 hearing request. Additionally, appellant did not
establish why a subpoena was the best method to obtain the evidence or testimony in question.
The Board finds that the hearing representative did not abuse her discretion in denying
appellant’s request for a subpoena.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of Act,22
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.23 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.24 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.25

21

L.W., supra note 19.

22

See supra note 3. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
23

20 C.F.R. § 10.606(b)(2).

24

Id. at § 10.607(a).

25

Id. at § 10.608(b).

9

ANALYSIS -- ISSUE 3
Appellant’s reconsideration request neither alleged nor demonstrated that the Office
erroneously applied or interpreted a specific point of law. Additionally, he did not advance a
relevant legal argument not previously considered by the Office. Appellant’s attorney argued
that the reconsideration request was premised on the fact that appellant had engaged in repetitive
activities since he received his first modified job following his shoulder injury and the medical
evidence supported that appellant’s neck condition dated back to his original shoulder injury in
1992. This argument, however, was previously considered by the Office.26 Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. While appellant’s attorney argued the denial of appellant’s claim is
contrary to the medical evidence, the new medical reports received from Drs. Betton, Rooney,
and Crowell, did not specifically address the relevant medical issue of whether accepted work
duties caused the claimed cervical condition. Appellant also submitted physical therapy notes.
However, these are not relevant with regard to the underlying medical issue as a physical
therapist is not competent to render medical opinion.27 The other evidence appellant submitted,
such as newspaper articles, letters of commemoration and motions do not address the relevant
factual matters regarding the nature and frequency of appellant’s duties. Consequently, appellant
is not entitled to a merit review based on the third criterion, noted above.
As appellant did not satisfy any of the above-mentioned criteria, the Board finds that the
Office properly determined that appellant was not entitled to a review of the merits of his claim.
CONCLUSION
The Board finds that appellant did not establish that he sustain a cervical condition
causally related to factors of his federal employment in 2006 and 2007. The Board finds that the
hearing representative properly denied his subpoena request. The Board also finds that the
Office properly refused to reopen appellant’s case for further review of the merits under
5 U.S.C. § 8128(a).

26

Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case. C.N., 60 ECAB ___ (Docket No. 08-1569, issued
December 9, 2008).
27

See A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008). See also 5 U.S.C. § 8101(2).

10

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated May 27, 2009 and July 7, 2008 are affirmed.
Issued: August 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntsville, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-970
Issued: November 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from the February 1, 2010 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On November 27, 2009 appellant, then a 38-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained depression, traumatic stress, anxiety and
anxiety attacks due to various incidents and conditions at work. She asserted that she was
subjected to constant harassment, bullying, intimidation, discrimination, falsification of her
work, falsification of her clock rings as of January 2009 and trumped up charges in her work file.

Appellant first became aware of her claimed condition on January 5, 2009. On the back of the
form Tjnya J. Horne, appellant’s supervisor, stated that she stopped work on January 2, 2009 and
had not returned.
The record was initially supplemented with a December 16, 2009 letter in which the
employer controverted appellant’s claim, a certification of mailing from appellant to the
employer, a January 13, 2009 letter from appellant addressed to a Family and Medical Leave Act
(FMLA) coordinator and a position description. Medical evidence submitted included, an
attending physician’s statement dated May 8, 2007 and a disability note dated February 13, 2009.
In a December 21, 2009 letter, the Office requested that appellant submit additional
factual and medical evidence in support of her claim.
The Office received additional documents including: a January 4, 2010 letter from
Ms. Horne;1 appellant’s two-page handwritten letter dated January 7, 2010 and addressed to
“Civil Rights Division, Public Corruption”; records of two separate telephone calls appellant
made to the Office on January 12, 2010; and a copy of appellant’s request for or notification of
absence dated January 12, 2009.
On January 8, 2010 appellant filed another Form CA-2 for depression, stress and anxiety
stating that she was constantly harassed at her home while her doctor had her off work. She
claimed that she was subjected to abuse, bullying and intimidation.2 Appellant included a
January 11, 2010 statement from Ms. Horne, a January 12, 2010 letter in which the employer
controverted appellant’s claim and appellant’s January 12, 2010 letter requesting a copy of her
case file. In a January 12, 2010 letter, she asserted that her supervisor constantly ignored her
doctor’s orders.
In a February 1, 2010 decision, the Office denied appellant’s claim on the grounds that
she did not establish any compensable employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
1

Ms. Horne indicated that appellant had not reported to work since January 2, 2009 and had not submitted any
documentation in support of an earlier emotional condition claim. She indicated that appellant had filed numerous
grievances and complaints with such organizations as the Equal Employment Opportunity Commission (EEOC) and
the Office of Safety and Health Administration (OSHA). Ms. Horne stated that the main contact management had
with appellant in the prior year was to forward her notices to “report for investigative interviews and subsequent
discipline.”
2

This claim form was initially developed under a different file number but its documents are now contained in
the present file.

2

Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.6
Administrative actions taken by the employer do not bear a direct relation to the work
required of the employee. Absent evidence of error or abuse, such administrative functions are
not considered employment factors.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must
initially review whether these alleged incidents and conditions of employment are compensable
employment factors under the terms of the Act.10 The Board notes that appellant’s allegations do
3

5 U.S.C. §§ 8101-8193.

4

See Lillian Cutler, 28 ECAB 125 (1976).

5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon, 42 ECAB 566 (1991).

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

On appeal, appellant asserted that numerous documents were missing from the record. However, it appears that
she is referring to documents from an earlier emotional condition claim she filed which is not the subject of the
present claim. On appeal, appellant continued to make general allegations of management’s wrongdoing,
harassment and discrimination.

3

not pertain to her regular or specially assigned duties under Culter.11 Rather, appellant generally
alleged that managers committed error and abuse with respect to administrative matters and that
she was subjected to harassment and discrimination.
Appellant generally claimed that the employing establishment engaged in improper
disciplinary actions and wrongly handled leave matters, including use of FMLA leave. The
Board finds that her allegations relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties and do not fall within the coverage of the
Act.12 Although the handlings of such matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.13 However, the Board
has found that an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.14
In determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.15 Appellant did not describe
the nature of her claims regarding management’s wrongdoing with any specificity. She
generally alleged falsification of her work and clock rings in January 2009. The employing
establishment denied that it committed error or abuse with respect to administrative matters.
Appellant did not submit sufficient evidence to establish that the employing establishment
committed error or abuse with regard to any investigative interviews, discipline or review of her
work.16
Appellant also alleged that harassment and discrimination contributed to her claimed
stress-related condition. She generally alleged that she was subjected to harassment, bullying,
intimidation, discrimination and trumped up charges.17 To the extent that disputes and incidents
alleged as constituting harassment and discrimination are established as occurring and arising
from appellant’s performance of her regular duties, these could constitute employment factors;
however, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur.18 Mere perceptions
of harassment or discrimination are not compensable under the Act.19 In the present case, the
employing establishment denied that appellant was subjected to harassment or discrimination.
11

See supra note 4.

12

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
13

Id.

14

See supra note 7.

15

See Richard J. Dube, 42 ECAB 916, 920 (1991).

16

The employing establishment indicated that appellant had been off work for about a year and noted that
managers had limited contact with her during this period.
17

Appellant asserted that she was harassed at home while off work on her doctor’s orders.

18

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

19

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

4

Appellant did not described the nature of her claims of harassment or discrimination with any
specificity as to time, place, parties involved or the acts taken that she contends were harassment.
She filed numerous grievances and complaints regarding matters at work, but the record does not
contain any determinations resulting from these matters.20 Appellant has not provided sufficient
argument or evidence to establish a compensable employment factor under the Act with respect
to her allegations of harassment and discrimination.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act. She has not met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.21
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

20

A claimant must establish a factual basis for his or her allegations of harassment with probative and reliable
evidence. See Lori A. Facey, 55 ECAB 217 (2004). Grievances and EED complaints by themselves do not establish
that harassment or unfair treatment occurred. See Linda J. Edwards-Delgado, 55 ECAB 401 (2004).
21

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE ARMY,
U.S. ARMY TEST & EVALUATION
COMMAND, White Sands Missile Range, NM,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-1567
Issued: April 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 13, 2018 appellant filed a timely appeal from an April 25, 2018 merit and a
July 17, 2018 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 over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 25, 2018 merit decision, OWCP received additional evidence. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury in
the performance of duty on March 5, 2018, as alleged; and (2) whether OWCP properly denied
appellant’s request for a review of the written record as untimely filed, pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On March 13, 2018 appellant, then a 55-year-old office management assistant, filed a
traumatic injury claim (Form CA-1) alleging that on March 5, 2018 she fell while in the
performance of duty, injuring her tailbone and her right hip. The injury allegedly occurred at the
mine site on the employing establishment’s premises. Appellant stated that she was stepping out
of a General Services Administration (GSA) truck holding on to the vehicle door, when a gust of
wind pulled the door. She let go of the door and fell to the ground, landing on her buttocks.
Appellant reportedly bruised her tailbone and right hip. She stopped work on March 6, 2018 and
returned on March 7, 2018. On the reverse side of the claim form, the employing establishment
noted that appellant’s injury occurred in the performance of duty. It also responded “yes” to the
question of whether its knowledge of the facts about the injury was in agreement with statements
of the employee and/or witnesses.
In a March 13, 2018 statement, R.G. indicated that the GSA vehicle was parked on the side
of the road on a slope leaning to the right. As appellant opened the door to exit the vehicle, wind
caught the door and caused it to swing wide open. R.G. stated that as a result appellant missed the
vehicle’s running board, and fell hurting her lower back.
In a March 6, 2018 attending physician’s report (Form CA-20), Dr. Sandra LaFon, Boardcertified in public health and occupational medicine, described a history of injury of “fell out of a
GSA 4x4 truck, landing in a sitting position on the ground.” She indicated examination findings
of muscle spasm and tender coccyx. Dr. LaFon diagnosed status post fall with dorsalgia. She
responded “yes” to the question which asked if the diagnosed condition was due to injury.
Submitted to the record was a March 7, 2018 work restriction form report by an unknown
provider indicating “no duty today.”
A March 12, 2018 physical therapy referral form noted a diagnosis/chief complaint of
lumbosacral pain, nerve compression. The healthcare provider’s signature is illegible.
In a handwritten prescription note dated March 15, 2018, Dr. Jason Rosenberg, a Boardcertified physiatrist, related that on March 8, 2018 appellant underwent a right trochanteric bursa
injection for hip bursitis.
In a March 20, 2018 development letter, OWCP advised appellant that the evidence of
record was insufficient to establish her claim. It further advised her of the factual and medical
evidence necessary to establish her claim and also provided a questionnaire for completion.
OWCP afforded appellant 30 days to provide the necessary information.
In a March 21, 2018 prescription pad note, Dr. Guillermo Hernandez, Jr., a family
practitioner, reported “acute lumbosacral pain secondary to injury.” He related that appellant’s
2

pain radiated to her right hip and leg secondary to sciatica from nerve compression. Dr. Hernandez
recommended physical therapy, two to three times per week for one month.
By decision dated April 25, 2018, OWCP denied appellant’s traumatic injury claim. It
found that she failed to establish that the March 5, 2018 incident occurred as alleged as she failed
to respond to its March 20, 2018 factual questionnaire and the medical evidence submitted did not
contain a valid diagnosis in connection with the claimed injury or event.
OWCP subsequently received additional factual information and medical evidence.
On June 21, 2018 OWCP’s Branch of Hearings and Review received appellant’s request
for a review of the written record. The request was dated April 30, 2018 and postmarked
June 12, 2018.
By decision dated July 17, 2018, OWCP’s hearing representative denied appellant’s
request for a review of the written record. She determined that appellant was not entitled to a
review as a matter of right because she did not file her request within 30 days of OWCP’s April 25,
2018 decision. The hearing representative further exercised her discretion and denied appellant’s
hearing request, finding that the issue in the case could be equally well addressed by requesting
reconsideration before OWCP and submitting evidence establishing that she sustained an injury in
the performance of duty.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

3

allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.10
Moreover, an injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.11 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has met her burden of proof to establish that the March 5,
2018 employment incident occurred, as alleged.
On her claim form, appellant indicated that on March 5, 2018 she was stepping out of a
GSA vehicle when a gust of wind caused the door she was holding to fly open and she fell to the
ground, landing on her buttocks. R.G., a witness to the incident, provided a March 13, 2018
statement indicating that wind caused the door to swing wide open as appellant was exiting the
vehicle. R.G. further stated that appellant missed the vehicle’s running board and fell, hurting her
lower back. On the reverse side of the claim form, the employing establishment indicated that
appellant’s injury occurred in the performance of duty. It also responded “yes” to the question of
whether its knowledge of the facts about the injury was in agreement with statements of the
employee and/or witnesses.
The Board finds that appellant’s description on the Form CA-1 and the March 13, 2018
witness statement by R.G. is sufficient to establish that the March 5, 2018 employment incident
occurred at the time, place, and in the manner alleged. Appellant provided a singular account of
the mechanism of injury that has not been refuted by any evidence in the record.13 The medical
evidence of record also substantiated appellant’s description of the March 5, 2018 incident. In a
March 6, 2018 Form CA-20, Dr. LaFon reported a history of injury of “fell out of a GSA 4x4
8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

11

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
12

Betty J. Smith, 54 ECAB 174 (2002).

13

See S.W., Docket No. 17-0261 (issued May 24, 2017) (the Board found that OWCP improperly determined that
the alleged employment incident did not occur when appellant provided consistent accounts of the claimed incident
and there was no evidence to refute her detailed description); see also J.L., Docket No. 17-1712 (issued
February 12, 2018).

4

truck.” In addition, appellant’s action surrounding the incident corroborate her description. She
stopped work and sought medical treatment the next day. As noted above, a claimant’s statement
that an injury occurred at a given time, place, and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.14 The Board finds, therefore, that
appellant has established that she actually experienced the March 5, 2018 employment incident at
the time, place, and in the manner alleged.
As appellant has established that the March 5, 2018 employment incident factually
occurred, the question becomes whether this incident caused an injury.15 The Board will,
therefore, set aside OWCP’s April 25 and July 17, 2018 decisions and remand the case for
consideration of the medical evidence. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her
burden of proof to establish a diagnosed medical condition causally related to the accepted
employment incident and any attendant disability.16
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the March 5,
2018 employment incident occurred in the performance of duty, as alleged. The case is not in
posture for decision with regard to whether appellant has established an injury causally related to
the accepted employment incident.

14

Supra note 11.

15

See Willie J. Clements, 43 ECAB 244 (1991).

16

In light of the Board’s holding in Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the July 17 and April 25, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision.
Issued: April 9, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1446
Issued: March 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 21, 2018 appellant, through counsel, filed a timely appeal from a January 23, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated January 13, 2017, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 14, 2016 appellant, then a 49-year-old transportation security officer (screener),
filed an occupational disease claim (Form CA-2) alleging that he developed a bilateral knee
condition as a result of his federal employment duties, including constant bending down on the
concrete floor and prolonged standing when breaks were stopped for an hour or more. He indicated
that he first became aware of his claimed condition on October 6, 2010 and first realized on
February 12, 2016 that it was caused or aggravated by his federal employment. Appellant did not
stop work.
In a letter dated November 18, 2016, the employing establishment controverted appellant’s
claim and argued that his bilateral knee injury was not the result of his federal employment, but
more likely the result of a preexisting service-related medical condition for which he was being
treated by the Department of Veterans Affairs Medical Center.
By decision dated January 13, 2017, OWCP found that fact of injury had been established,
but denied the claim because the medical evidence submitted was insufficient to establish causal
relationship between appellant’s bilateral knee condition and accepted factors of his federal
employment.
On January 13, 2018 appellant requested reconsideration of his claim.
By decision dated January 23, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that a request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely request for reconsideration, including all supporting documents, must set forth arguments
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

2

and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;
or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.6
When a timely application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s January 13, 2018 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP. Appellant requested
reconsideration on January 13, 2018. He did not submit an additional statement or argument
supporting his request. Consequently, appellant is not entitled to further review of the merits of
his claim based on the first and second above-noted requirements under section 10.606(b)(3).8
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Therefore, OWCP was not required to reopen appellant’s claim for
reconsideration of the merits in accordance with the third above-noted requirement under section
10.606(b)(3).9
As appellant did not meet any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), the Board finds that OWCP properly denied his request for reconsideration
pursuant to 20 C.F.R. § 10.608.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

Supra note 6.

9

Id. See also V.H., Docket No. 15-1262 (issued March 18, 2016).

3

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2019
Washington, DC

Christopher J. Godfrey, 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

4