United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
_________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2239
Issued: July 25, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from the July 22, 2010 Office of
Workers’ Compensation Programs’ (OWCP) decision which affirmed the termination of her
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether OWCP properly terminated appellant’s compensation
benefits effective February 14, 2010.
FACTUAL HISTORY
On September 3, 2008 appellant, then a 46-year-old mail handler, injured her left knee
when it popped while she was pushing a container onto a trailer. She stopped work on
September 4, 2008. OWCP accepted the claim for left knee sprain. Appellant received
compensation benefits.

1

5 U.S.C. § 8101 et seq.

On September 8, 2008 Dr. John F. Clardy, a Board-certified family practitioner,
diagnosed left knee sprain and recommended a magnetic resonance imaging (MRI) scan. A
September 12, 2008 MRI scan of the left knee revealed bone marrow edema suggestive of a bone
contusion in the posterior lateral aspect of the tibia and intrameniscal degenerative changes with
no definite evidence of meniscal tear in posterior horns of the medial and lateral menisci. In an
October 31, 2008 report, Dr. Clardy noted treating appellant for an injury that occurred on
September 3, 2008. He opined that appellant could return to work after she saw an orthopedist.
In a November 6, 2008 report, Dr. David R. Moore, a Board-certified orthopedic surgeon,
and treating physician, noted appellant’s history of injury and treatment and reviewed her MRI
scan. He determined that appellant’s menisci were intact. Dr. Moore advised that appellant
tolerated her corticosteroid injection without difficulty and recommended placing appellant on an
anti-inflammatory and formal therapy regimen. He indicated that appellant could return to work
with “no repetitive stooping, squatting or bending.” In a February 12, 2009 report, Dr. Moore
noted that appellant’s left knee pain continued to slowly improve. He advised that, while
appellant complained of medial joint line discomfort, radiographic studies revealed no significant
intra-articular pathology. Dr. Moore opined that appellant could return to work without
restrictions. He noted that appellant related that she had discomfort when working outside in
cold weather which “significantly aggravates her discomfort.” Dr. Moore explained that
working indoors as opposed to outdoors in the cold weather would improve her discomfort. In a
separate February 12, 2009 report, responding to an inquiry from the employer, he stated that
appellant’s condition had resolved and that she had returned to baseline without residuals.
Dr. Moore also completed a duty status form advising that appellant could return to work but
filled in “no working outside in cold weather.”
Dr. Clardy completed work capacity evaluation forms dated May 4 and 15, 2009,
advising that appellant could work eight hours per day with permanent restrictions which
included no walking, standing, twisting, bending, stooping, operating a motor vehicle, pushing,
pulling, lifting, squatting, kneeling or climbing. He indicated that appellant had problems with
pain and discomfort when exposed to extremes of weather, especially cold weather, and
prolonged standing.
Appellant returned to work as a modified mail handler on May 12, 2009.
Dr. Clardy continued to treat appellant. He placed her off work for the period June 2
to 3, 2009 and again placed her off work for the period prior to June 8, 2009.
On June 17, 2009 OWCP referred appellant for a second opinion examination to
Dr. Charles Barlow, a Board-certified orthopedic surgeon, to determine the extent of appellant’s
work-related condition. In a report dated July 9, 2009, Dr. Barlow noted appellant’s history of
injury and treatment and examined her. Examination revealed tenderness over the proximal
medial tibia with no synovitis or effusion. Range of motion was full and stable while joint lines
were nontender. There was some softening of the hamstring and quadriceps muscles. Patellar
compression test was positive. Dr. Barlow diagnosed patellofemoral chondromalacia and opined
that the work-related condition of left knee sprain had resolved. He advised that the only
objective findings at the time of his examination included mild atrophy of the quadriceps and
hamstring muscles. Dr. Barlow explained that appellant’s subjective complaints of pain

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outweighed any objective findings, as the knee was stable and there was no evidence of any
intra-articular pathology other than the chondromalacia, which was a normal degenerative
process. He noted that the plain films and MRI scan were normal and opined that appellant had
no medical restrictions as a result of the work-related injury. Dr. Barlow further noted that he
concurred with Dr. Moore, who found in his February 12, 2009 report that appellant had a
normal examination, normal films, a normal MRI scan and advised that appellant could return to
work without restrictions. He recommended quadriceps and hamstring exercises. Dr. Barlow
completed a work restriction form indicating that appellant could return to her usual job for eight
hours per day. He noted that she should not perform more than two hours of squatting or
climbing.
In a report dated August 12, 2009, Dr. Clardy noted that he had treated appellant since
her September 3, 2008 injury. He advised that she continued to have left knee pain that flared up
and which necessitated medical attention with prolonged use. Dr. Clardy indicated that appellant
had been given documentation to support being off work as her condition was persistent. He
recommended treating appellant for her unforeseeable medical flare ups and requested that his
medical excuses be honored.
The employing establishment provided OWCP with a November 23, 2009 investigative
report from the Office of Inspector General (OIG). OIG conducted surveillance of appellant for
the period June 3 through November 17, 2009. The report noted that appellant performed
various activities in excess of her medical restrictions.
On December 15, 2009 OWCP proposed to terminate appellant’s compensation benefits
on the basis that the weight of the medical evidence, as represented by Dr. Barlow, established
that the residuals of the work injury of September 3, 2008 had ceased. No response was
received.
By decision dated January 22, 2010, OWCP terminated appellant’s compensation
benefits effective February 14, 2010, on the grounds that she had no continuing residuals of her
employment injury.
On February 1, 2010 OWCP received an undated letter from appellant. Appellant noted
that she had received a letter from OWCP and questioned why her pay was “being held for no
reason.” On February 16, 2010 OWCP received a January 18, 2010 statement in which appellant
disagreed with OWCP’s decision. Appellant alleged that the employer did not comply with her
restrictions. Further, she indicated that working outside activated her knee problems and was
outside her restrictions. Appellant also noted that Dr. Barlow indicated that she had no
restrictions but he filled in “two hours and two hour.”
Appellant’s representative requested a telephonic hearing, which was on May 11, 2010.
During the hearing, appellant noted that the activities she was observed performing in the OIG
report did not exceed her medical restrictions.
In a June 7, 2010 letter, Brad S. Lukacic, a health resource management specialist with
the employing establishment, noted that appellant’s physician, Dr. Moore and the second opinion
physician, Dr. Barlow, agreed that the work-related injury had resolved.

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On July 9, 2010 OWCP received an undated letter from appellant. Appellant noted that
she should not be out for nine months without pay due to a difference in opinions between the
physicians. She also questioned Dr. Moore’s reports.
In a July 22, 2010 decision, OWCP’s hearing representative affirmed the termination of
appellant’s compensation benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective February 14, 2010. To determine the extent and degree of any
employment-related disability or residuals, OWCP referred appellant to Dr. Barlow for a second
opinion examination.
In a July 9, 2009 report, Dr. Barlow noted appellant’s history and examined appellant.
He determined that there were no objective findings other than mild atrophy of the quadriceps
and hamstring muscles. Dr. Barlow diagnosed patellofemoral chondromalacia and opined that
the work-related condition of left knee sprain had resolved. He advised that appellant’s
subjective complaints of pain outweighed any objective findings, as the knee was stable and
there was no evidence of any intra-articular pathology other than chondromalacia, which was a
normal degenerative process. Dr. Barlow also indicated that diagnostic testing was normal and
there were no medical restrictions as a result of the work-related injury. He also concurred with
Dr. Moore who reported a normal examination in his February 12, 2009 report and also indicated
that appellant could return to work without restrictions. Dr. Barlow indicated that appellant
could return to her usual job for eight hours per day. He stated that she had no restrictions due to
the accepted condition. Dr. Barlow completed a work restriction form noting that she could
perform her usual duties. He advised that she should not perform more than two hours of
stooping, squatting or climbing.
The record contains the February 12, 2009 report from Dr. Moore, a Board-certified
orthopedic surgeon and a treating physician, who also indicated that appellant’s condition had
resolved and she could return to work without restrictions. Dr. Moore’s only recommendation
was to avoid “working outside in cold weather.” He did not attribute any work restrictions to the
accepted condition.

2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

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The Board finds that Dr. Barlow’s report represents the weight of the medical evidence
and establishes that residuals of appellant’s work-related left knee sprain have resolved. He
noted that reviewing the record, provided findings on examination, and found no basis on which
to attribute any continuing condition or disability to the September 3, 2008 incident that was
accepted for a left knee sprain.
Dr. Clardy continued to treat appellant, recommended restrictions, and later placed her
off work due to continued work-related residuals of her employment injury. The Board finds
that the reports of Dr. Clardy are not well rationalized as they do not specifically address how a
condition accepted for a left knee sprain would remain symptomatic and why her continuing
condition would not be attributable to her patellofemoral chondromalacia.4 For example, in his
August 12, 2009 report, Dr. Clardy noted that appellant continued to have pain in her left knee
that flared up with continuous use but he did not specifically address how this was related to the
accepted left knee sprain and he did not provide any objective findings to support his opinion of
a continuing work-related condition. Other reports of Dr. Clardy do not provide reasoning to
support why residuals of the accepted left knee sprain had not resolved. Thus, his reports are not
of equal weight with that of Dr. Barlow and are insufficient to create a medical conflict.5
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s
compensation benefits effective February 14, 2010.

4

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
5

See 5 U.S.C. § 8123(a). A simple disagreement between two physicians does not, of itself, establish a conflict.
To constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually equal weight and
rationale. John D. Jackson, 55 ECAB 465 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Warrendale, PA,
Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0430
Issued: August 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 19, 2016 appellant, through counsel, filed a timely appeal from a June 29,
2016 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an injury to the right
buttocks causally related to the accepted January 18, 2014 employment incident.
FACTUAL HISTORY
On February 12, 2014 appellant, then a 57-year-old mail processing equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on January 18, 2014 he sustained an
injury to his right buttocks as a result of slipping and falling on an ice-covered employing
establishment sidewalk. The employing establishment controverted the claim in a letter dated
February 13, 2014, noting that appellant had waited to report the injury for 23 days and that he
had not provided any medical evidence to establish a causal relationship between the incident of
January 18, 2014 and any diagnosed medical condition.
By letter dated February 24, 2014, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim, and afforded him 30 days to submit such
evidence. It also requested that appellant respond to a questionnaire. Appellant did not respond.
By decision dated March 28, 2014, OWCP denied appellant’s claim, finding that he had
not established fact of injury as the evidence of record was insufficient to establish that the
claimed incident occurred as alleged.
On March 27, 2015 appellant, through counsel, requested reconsideration of OWCP’s
March 28, 2014 decision. With the request, appellant attached hospital records, reports from
physicians, and results of diagnostic tests.
In an emergency department note dated January 24, 2014, Dr. Jawaid Akhtar, Boardcertified in colon and rectal surgery, noted that appellant had arrived at the emergency room with
a gluteal infection following a fall. He noted that appellant was diabetic, and that a computerized
tomography scan of the pelvis showed evidence of induration with few gas locules, which was
concerning for necrotizing fasciitis. Dr. Akhtar diagnosed appellant with a perigluteal infection
with possible necrotizing fasciitis.
On January 27, 2014 Dr. Erica Coffin, an anesthesiologist, noted that appellant slipped on
ice on Saturday, January 18, 2014, landing on his knees, and then falling on his buttocks. She
noted that appellant began to feel stiffness in his legs and soreness in his buttocks two days later.
The next day, Tuesday, January 21, 2014, he left work due to increasing pain and fevers that
persisted over the next two days. On Friday, January 24, 2014 the pain acutely worsened with
increasing stiffness, and appellant visited his primary care physician, who directed him to the
hospital. Appellant was evaluated in a hospital emergency department and was found to have
severe sepsis.
In a progress note dated February 13, 2014, Dr. Graciela Bauza, a Board-certified
surgeon, diagnosed appellant with an ischlorectal absess and fistula. She noted that appellant
had undergone several surgical procedures to treat this condition between January 24 and

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February 12, 2014. Appellant had been hospitalized since January 24, 2014, first in the intensive
care unit (ICU), and then was transferred to a monitored floor bed on February 2, 2014.
In a narrative report dated November 13, 2014, Dr. Bauza stated that appellant had
arrived at the emergency department on January 24, 2014, having slipped and landed on his
buttocks while walking on an icy pavement one week prior. She noted that appellant required
approximately 15 surgeries in order to treat a large perirectal abscess with necrotic tissue, and
that these surgeries were completed in late March 2014. After discharge, appellant underwent
rehabilitation for some time.
On March 27, 2015 appellant, through counsel, requested reconsideration of OWCP’s
March 28, 2014 decision.
By decision dated June 11, 2015, OWCP reviewed the merits of appellant’s claim and
found that he had provided sufficient evidence to establish that the incident occurred as alleged
and that he had been diagnosed with a medical condition. However, it found that he had not
submitted sufficient medical evidence to establish a causal relationship between the diagnoses
and the incident of January 18, 2014, because none of the medical evidence submitted to the
record contained a physician’s definitive opinion and well-rationalized explanation as to whether
his claimed injury was related to that incident.
On May 31, 2016 appellant, through counsel, requested reconsideration of OWCP’s
June 11, 2015 decision. With his request, he submitted a narrative report from Dr. Bauza dated
May 24, 2015. Dr. Bauza recalled his course of treatment and noted, that, upon initial
evaluation, appellant reported a fall five days prior where he landed on his buttocks. She
observed that physical examination demonstrated a large area of necrotic tissue in the perirectal
region of his buttocks at the site of his fall with subsequent trauma to the buttock. Dr. Bauza
stated that initial and subsequent operative exploration showed an extensive amount of necrotic
tissue beyond that expected from a simple perirectal abscess even in the setting of diabetes. She
explained, “It is my opinion that the fall that occurred prior to his presentation is the inciting
event leading to his buttock becoming infected and developing into an abscess with a necrotizing
soft tissue infection requiring the above-detailed medical and surgical care. The above opinion is
rendered within a reasonable degree of medical certainty.”
By decision dated June 29, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that Dr. Bauza’s statement was insufficient,
because it was unclear how the fall caused necrotic tissue from an abscess and necessitated more
than 15 surgeries and a fecal diversion with colostomy. OWCP further noted that Dr. Bauza
failed to differentiate the effects of appellant’s preexisting conditions of the same part of the
body from the work-related injury.
LEGAL PRECEDENT
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
3

Supra note 2.

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the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury4 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.6
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
Appellant alleged that on January 18, 2014 he sustained an injury to his buttocks as a
result of a slip and fall on an icy sidewalk. OWCP accepted that the incident occurred as alleged,
however, denied the claim as the evidence of record was insufficient to establish causal
relationship. The Board finds that appellant has failed to submit sufficient evidence to establish
a causal relationship between the incident of January 18, 2014 and his diagnosed conditions.
In a note dated January 24, 2014, Dr. Akhtar noted that appellant arrived at the
emergency room following a fall and also noted that appellant was a diabetic. He diagnosed
perigluteal infection with possible necrotizing fasciitis. Dr. Akhtar did not provide an opinion as
to the cause of this diagnosis. As such, his report fails to sufficiently support the causal
relationship between the condition and the accepted incident.12
On January 27, 2014 Dr. Coffin noted that appellant slipped on ice on Saturday,
January 18, 2014, landing on his knees, and then falling on his buttocks. She noted that
appellant’s pain and stiffness worsened and on January 24, 2014 appellant was evaluated in a
hospital emergency room and found to have severe sepsis. Dr. Coffin’s report also did not
address the cause of the diagnosed condition. As such, her report is of limited probative value
regarding causal relationship of the diagnosis to the accepted employment incident.13
The first physician of record to actually address the issue of causal relationship was
Dr. Bauza. In a progress note dated February 13, 2014, Dr. Bauzá diagnosed appellant with an
ischlorectal absess and fistula. She noted that appellant had undergone several surgical
procedures to treat this condition between January 24 and February 12, 2014. In a narrative
report dated May 24, 2015, Dr. Bauza recalled appellant’s course of treatment and noted that,
upon initial evaluation, he reported a fall five days prior where he landed on his buttocks. She
observed that physical examination demonstrated a large area of necrotic tissue in the perirectal
region of his buttocks at the site of his fall with subsequent trauma to the buttock. Dr. Bauza
stated that initial and subsequent operative exploration showed an extensive amount of necrotic
tissue beyond that expected from a simple perirectal abscess even in the setting of diabetes. She
explained, “It is my opinion that the fall that occurred prior to his presentation is the inciting
event leading to his buttock becoming infected and developing into an abscess with a necrotizing
soft tissue infection requiring the above-detailed medical and surgical care. The above opinion is
rendered within a reasonable degree of medical certainty.”
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically-sound explanation of how the claimed work
11

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

C.B., Docket No. 09-2027 (issued May 12, 2010) (medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship.
13

Id.

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event caused or aggravated the claimed condition.14 A mere conclusion without the necessary
rationale explaining how and why the physician believes that the accepted incident resulted in a
diagnosed condition is not sufficient to meet appellant’s burden of proof.15 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by an employment incident is sufficient to
establish causal relationship.16 Dr. Bauza’s statement fails to provide a sufficient explanation as
to the mechanism of injury pertaining to this traumatic injury claim, namely, how a fall would
cause or aggravate appellant’s diagnosed conditions.17 Without explaining how the movements
involved in the employment incident caused or contributed to the diagnosed conditions, his
opinion is of limited probative value.18
As such, the Board finds that appellant failed to submit sufficient evidence to establish
his claim for a work-related traumatic injury causally related to the accepted January 18, 2014
employment incident. Appellant did not submit a clear and rationalized opinion from a qualified
physician relating his diagnosed perirectal abscess to the incident of January 18, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty on January 18, 2014.

14

D.D., Docket No. 13-1517 (issued April 14, 2014).

15

C.M., Docket No. 17-0596 (June 15, 2017).

16

T.E., Docket No. 16-1090 (issued February 24, 2017).

17

See T.G., Docket No. 14-0751 (issued October 20, 2014).

18

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Orlando, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0017
Issued: December 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 7, 2020 appellant, through counsel, filed a timely appeal from a September 10,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the September 10, 2020 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
consequential to the accepted June 25, 2012 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On June 25, 2012 appellant, then a 47-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left knee injury that day when kneeling down to
shoot at a firing range while in the performance of duty. On the reverse side of the claim form,
appellant’s supervisor acknowledged that appellant was injured in the performance of duty and
noted that he did not stop work. OWCP accepted the claim for left knee contusion. It later
expanded the acceptance of appellant’s claim to include aggravation of left knee medial
compartment degenerative arthritis and small bowel obstruction. OWCP authorized left knee
primary total knee arthroplasty, which he underwent on March 27, 2013. It paid appellant wageloss compensation on the supplemental rolls commencing March 10, 2013 and on the periodic rolls
commencing April 7, 2013.
In a report dated July 11, 2017, Dr. Jeffrey T. O’Brien, a Board-certified orthopedic
surgeon serving as an OWCP second opinion physician, noted that appellant complained of back
and right knee pain. A review of a magnetic resonance imaging (MRI) scan demonstrated low
back degenerative disc disease. Based on physical examination findings and diagnostic testing,
Dr. O’Brien diagnosed right knee osteoarthritis and degenerative disc disease of the lumbar spine.
However, he opined that both of these conditions were not related to the accepted June 25, 2012
employment injury. Dr. O’Brien advised that appellant required further treatment for his back and
right knee conditions, specifically that a replacement was likely necessary, but reiterated that these
conditions were not causally related to his accepted employment injury.
Appellant subsequently submitted reports dated October 9 and November 20, 2017 from
Dr. Mark A. Seldes, a Board-certified family practitioner, who diagnosed lumbar spine
degenerative disc disease, bilateral lower extremity radiculopathy, status postoperative left total
knee replacement, right knee internal derangement, right knee degen erative arthritis, and right knee
joint degenerative medial meniscus. Dr. Seldes opined that appellant’s right knee condition was a
consequence of the accepted left knee condition.
Dr. Seldes, in a December 11, 2017 report, diagnosed right knee joint anterior cruciate
ligament (ACL) partial proximal tear, right knee joint effusion, and right knee medial tibiofemoral
joint chondromalacia. He reported that appellant had a preexisting right knee injury from a 1994
motor vehicle accident. Dr. Seldes indicated that appellant had recovered well from that accident
as no treatment, surgery, or physical therapy had been required. He opined that after the June 25,
2012 employment injury, appellant relied on his right knee for significant support for about a year
and his right knee bore the brunt of the weight due to ongoing left knee joint pain. Dr. Seldes
concluded that given appellant’s preexisting injury from a 1994 motor vehicle accident, which had
appeared to have healed, appellant suffered an aggravation of his preexisting right knee injury. In
4

Docket No. 18-1536 (issued June 24, 2019).

2

addition, he opined that there appeared to be a medial meniscus and posterior horn injury as well
as a newer proximal ACL partial tear injury. Dr. Seldes also concluded that appellant’s right knee
osteoarthritis was a consequence of his accepted left knee conditions.
By decision dated December 28, 2017, OWCP denied appellant’s claim for a consequential
injury, finding that the medical evidence of record was insufficient to establish causal relationship
between appellant’s additional diagnosed medical conditions and the accepted June 24, 2012
employment injury. It found that Dr. O’Brien’s July 11, 2017 second opinion report represented
the weight of the medical opinion evidence.
On January 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on May 30, 2018.
By decision dated July 12, 2018, the hearing representative affirmed the December 28,
2017 decision.
In a report dated July 25, 2018, Dr. Seldes reiterated his examination findings and
diagnoses from prior reports. He opined that appellant’s left knee, right knee, and low back
conditions had worsened. Moreover, as a result of chronic use of his cane, appellant developed a
consequential right carpal tunnel syndrome due to compression of his wrist while using the cane
to ambulate. Regarding the diagnosis of lumbar radiculopathy, Dr. Seldes explained that appellant
injured his lumbar spine attempting to perform physical therapy following his 2013 total left knee
replacement surgery. He reviewed and disagreed with Dr. O’Brien’s July 21, 2017 report. In
support of his disagreement, Dr. Seldes explained that prior to the accepted July 25, 2012
employment injury appellant was able to perform his job and only developed right knee problems
following the employment injury. While appellant had a preexisting right knee condition from a
1994 motor vehicle accident, it had completely healed within six months. Dr. Seldes opined that
appellant’s right knee condition had been aggravated by the June 25, 2012 left knee injury,
subsequent delay in treatment, and treatment for the left knee injury. Based on these facts, he
concluded that appellant developed consequential right knee joint traumatic advanced
osteoarthritis. Dr. Seldes noted in comparing of right knee resonance imagining (MRI) scan taken
in 2014 and 2017 show worsening degenerative joint disease.
Appellant, through counsel, appealed to the Board on August 8, 2018. By decision dated
June 24, 2019, the Board found a conflict of medical opinion between Dr. Seldes, appellant’s
treating physician, and Dr. O’Brien, the second opinion physician, regarding whether appellant’s
diagnosed degenerative disc disease and osteoarthritis of his right knee were consequential to the
accepted June 25, 2012 employment injury. 5 The Board set aside the July 12, 2018 decision and
remanded the case to OWCP.
During the pendency of appellant’s appeal with the Board, OWCP continued to receive
medical reports from Dr. Seldes, which reiterated the findings noted in his prior reports.
On October 9, 2019 OWCP referred appellant, along with the medical record, and SOAF,
to Dr. Robert B. McShane, a Board-certified orthopedic surgeon, to resolve the conflict in the
medical opinion evidence regarding whether appellant’s diagnosed degenerative disc disease and

5

Id.

3

osteoarthritis of his right knee were consequential to the accepted June 25, 2012 employment
injury.
In an October 28, 2019 report, Dr. McShane described the history of appellant’s June 25,
2012 employment injury, noted his review of the medical record and SOAF, and related appellant’s
bilateral knee and low back complaints. Upon physical examination, he found that appellant was
morbidly obese, and noted that he ambulated with use of a cane in his right hand and a brace on
his left leg. Dr. McShane reported a moderately antalgic gait and some difficulty walking. Range
of motion for the back revealed 60 degrees forward flexion, 20 degrees extension, 30 degrees sideto-side bending, and no obvious spasm. An examination of the left leg revealed 2 to 110 degrees
range of motion with the brace loosened, no anterior or posterior instability, and no obvious left
leg muscle atrophy. Dr. McShane reported 0 to 110 degrees right leg range of motion, no obvious
instability, mild varus deformity, and stable collaterals and cruciates. He noted that x-rays of the
knees and back revealed cemented total left knee arthroplasty in good position with no evidence
of wear or loosening, right knee end-stage medial and patellofemoral degenerative changes with
varus deformity, and mild-to-moderate lumbar degenerative changes. Dr. McShane opined that
appellant’s right knee and back conditions were unrelated to the accepted June 25, 2012
employment injury. He indicated that appellant’s right knee condition was due to multiple factors
such as appellant’s morbid obesity, and his preexisting right knee condition. Dr. McShane also
related that he could not find records substantiating appellant’s complaint that he injured his back
during physical therapy after his total right knee arthroplasty in 2013. He disagreed with
Dr. Seldes as to whether appellant placed more weight on the right leg during convalescence as it
had been his experience that patients placed 100 percent of their weight on each leg while
ambulating. Dr. McShane attributed appellant’s right knee problems to his significant preexisting
osteoarthritis, as shown on x-ray, and morbid obesity and unrelated to the accepted June 25, 2012
employment injury. He also found no evidence supporting a back condition due to the accepted
June 25, 2012 employment injury. Dr. McShane noted his agreement with Dr. O’Brien regarding
whether the right knee and low back conditions had been caused or aggravated by the accepted
June 25, 2012 employment injury.
By decision dated November 15, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include consequential conditions of lumbar spine degenerative disc disease
and right knee osteoarthritis.
Reports dated November 21, December 23, 2019, January 30, February 25, March 23,
2020 from Dr. Seldes were unchanged from his prior reports.
On November 25, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was held on March 11, 2020.
By decision dated April 16, 2020, OWCP’s hearing representative affirmed the
November 15, 2019 decision.
In reports dated April 30, 2020, Dr. Seldes noted his review of the medical record and
provided examination findings. Diagnoses were unchanged from prior reports. Dr. Seldes noted
his agreement with Dr. McShane regarding the diagnosis of right knee preexisting osteoarthritis,
but disagreed that the accepted employment injury had not caused or aggravated this condition.
Thus, he opined that OWCP should accept the condition of aggravation of preexisting right knee
osteoarthritis. Next, Dr. Seldes noted that prior to physical therapy notes for the June 25, 2012
4

employment injury appellant did not note diagnoses of lumbar radiculopathy or herniated disc. He
also opined that Dr. McShane’s opinion should not be accorded more weight than his opinion, as
he was appellant’s treating physician.
Dr. Seldes, in reports dated May 22, June 23, July 23, and August 19, 2020, detailed
examination findings and again opined that appellant sustained consequential right knee and low
back conditions.
On July 30, 2020 appellant, through counsel requested reconsideration of the April 16,
2020 decision.
By decision dated September 10, 2020, OWCP denied modification.
LEGAL PRECEDENT
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 8 Additionally, the opinion of the physician must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment factor(s) identified by the claimant. 9
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct. 10 The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury. 11 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
6

T.B., Docket No. 20-0182 (issued April 23, 2021); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
7

T.B., id.; T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson,
55 ECAB 465 (2004).
8

T.B., id.; E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9

T.B., id.; M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
10

T.B., id.; C.W., Docket No. 18-1536 (issued June 24, 2019); C.R., Docket No. 18-1285 (issued February 12,
2019); Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994).
11

R.M., Docket No. 18-1621 (issued August 23, 2019); Debra L. Dilworth, 57 ECAB 516 (2006).

5

nonemployment related, is deemed, because of the chain of causation, to arise out of and in the
course of employment and is compensable. 12
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination. 13 The implementing regulation
states that, if a conflict exists between the medical opinion of the employee ’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 14 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion
of such specialist, if sufficiently well-rationalized and based upon a proper factual and medical
background, must be given special weight. 15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition consequential to the accepted June 25, 2012 employment injury.
OWCP determined that a conflict in the medical opinion evidence was created between
Dr. Seldes, appellant’s treating physician, who opined that appellant’s diagnosed right knee and
lumbar conditions should be accepted as consequential injuries from the June 25, 2012
employment injury, and Dr. O’Brien, OWCP’s second opinion physician, who concluded that
there was no medical evidence to support any causal relationship between the J une 25, 2012
employment injury and any right knee or lumbar conditions. OWCP properly referred appellant
to Dr. McShane for an impartial medical examination in order to resolve the conflict in medical
evidence, pursuant to 5 U.S.C. § 8123(a).
In an October 28, 2019 report, Dr. McShane, noted his review of the SOAF and the medical
record. Upon examination, he noted that appellant was morbidly obese, ambulated using a cane
and observed moderately antalgic gait, some difficulty walking, no right leg obvious instability,
mild right knee varus deformity, stable right collaterals and cruciate. Dr. McShane noted that xrays of the knees and back revealed cemented total left knee arthroplasty in good position with no
evidence of wear or loosening, right knee end-stage medial and patellofemoral degenerative
changes with varus deformity, and mild-to-moderate lumbar degenerative changes. He opined that
the right knee and back conditions were unrelated to the accepted June 25, 2012 employment
injury. Dr. McShane related that appellant’s conditions were due to other multiple factors
including appellant’s morbid obesity, and a preexisting right knee condition. He also noted that
12

K.C., Docket No. 19-1251 (issued January 24, 2020); R.V., Docket No. 18-0552 (issued November 5, 2018); L.S.,
Docket No. 08-1270 (issued July 2, 2009).
13

5 U.S.C. § 8123(a).

14

20 C.F.R. § 10.321.

15

C.E., Docket No. 19-1923 (issued March 30, 2021); L.L., Docket No. 19-0214 (issued May 23, 2019); D.M.,
Docket No. 18-0746 (issued November 26, 2018); R.C., 58 ECAB 238 (2006); David W. Pickett, 54 ECAB
272 (2002).

6

appellant’s physical therapy notes did not substantiate his complaints of a consequential lumbar
condition.
Dr. McShane accurately described the employment injury and noted his review of the
medical record, including the SOAF. He performed a thorough, clinical examination and provided
findings on examination. The Board, therefore, finds that Dr. McShane’s opinion is entitled to the
special weight accorded an impartial medical examiner with regard to the issue of whether the
acceptance of appellant’s claim should be expanded to include consequential right knee and lumbar
conditions.16
The Board finds the reports from Dr. Seldes submitted following Dr. McShane’s report,
are insufficient to overcome the special weight accorded to Dr. McShane because reports from a
physician who was on one side of a medical conflict resolved by an IME are insufficient to
overcome the special weight accorded the report of the IME or create a new conflict. 17
As the medical evidence of record is insufficient to establish that appellant sustained
consequential right knee and lumbar conditions causally related to the accepted June 25, 2012
employment injury, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition consequential to the accepted June 25, 2012 employment injury.

16

See W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018);
D.G., Docket No. 17-0608 (issued March 19, 2018).
17

R.M., Docket No. 20-1268 (issued February 24, 2021); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-541
Issued: May 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2014 appellant, through counsel, filed a timely appeal from a
December 20, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration on the grounds that it was untimely filed and
failed to establish clear evidence of error. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
nonmerit decision by OWCP. The last merit decision of record was OWCP’s April 20, 2012
decision denying appellant’s occupational disease claim. Because more than 180 days elapsed
from the last merit decision to the filing of this appeal, the Board lacks jurisdiction to review the
merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On January 18, 2012 appellant, then a 57-year-old mail clerk, filed an occupational
disease claim (Form CA-2) alleging carpal tunnel syndrome (CTS) as a result of her federal
employment duties. She first became aware of her condition and of its relationship to her
employment on September 26, 2011.
By letter dated February 3, 2012, OWCP informed appellant that the evidence of record
was insufficient to support her claim. She was advised of the medical and factual evidence
needed and asked that she respond to the provided questions within 30 days.
Appellant submitted a narrative statement describing her federal employment duties and
the repetitive use of her hands.
In a December 28, 2011 electromyography (EMG) and nerve conduction study, Dr. Mark
Rorick, a Board-certified neurologist, reported that testing revealed abnormal for the right upper
extremity. He stated that the findings were diagnostic of right median neuropathy at or distal to
the wrist (CTS).
In reports dated December 28, 2011 and January 31, 2012, Dr. Rorick diagnosed bilateral
carpal tunnel syndrome, right greater than left.
By decision dated April 20, 2012, OWCP denied appellant’s claim. It found that the
medical evidence of record failed to establish that her diagnosed condition was causally related
to the established work-related events.
By letter dated October 9, 2013, appellant stated that she still experienced symptoms of
CTS as a result of her federal employment duties. She described her employment duties and
stated that her condition was caused by her employment over the course of the prior 30 years.
By letter dated December 9, 2013, appellant requested reconsideration of OWCP’s
decision. She submitted an October 24, 2013 letter from Dr. Todd S. Hochman, Board-certified
in internal medicine. Dr. Hochman opined that appellant’s bilateral CTS was caused as a result
of her federal employment duties as a mail clerk.
By decision dated December 20, 2013, OWCP denied appellant’s reconsideration request
as untimely filed and failing to establish clear evidence of error.3
3

The Board notes that appellant submitted additional evidence after OWCP rendered its December 20, 2013
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

2

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise
and explicit and it must manifest on its face that OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.11
ANALYSIS
In its December 20, 2013 decision, OWCP properly determined that appellant failed to
file a timely application for review. An application for reconsideration must be received within
one year of the date of OWCP’s decision.12 A right to reconsideration within one year also

4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

20 C.F.R. § 10.607 (2011).

3

accompanies any subsequent merit decision on the issues.13 Appellant’s December 9, 2013
request for reconsideration was submitted and received more than one year after issuance of the
April 20, 2012 merit decision. Therefore, it was untimely. Consequently, appellant must
demonstrate clear evidence of error by OWCP in denying her claim.14
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. Appellant submitted an October 24, 2013 report from Dr. Hochman, who stated that
appellant’s repetitive employment duties caused her bilateral CTS. However, this evidence is
insufficient to establish that OWCP erred in the denial of appellant’s claim.15 Dr. Hochman’s
report did not provide detailed medical rationale explaining how appellant’s federal employment
duties caused her injury other than generally stating that repetitive use of her upper extremities
caused her CTS. Furthermore, this evidence was submitted after OWCP’s April 20, 2012 merit
decision. The Board notes that clear evidence of error is intended to represent a difficult
standard. Evidence, such as a detailed well-rationalized medical report, which if submitted
before the merit denial might require additional development of the claim, is insufficient to
establish clear evidence of error.16 While Dr. Hochman’s report was generally supportive of
appellant’s claim, it is not sufficient to establish clear evidence of error.17 This evidence does
not raise a substantial question as to the correctness of OWCP’s April 20, 2012 merit decision.
On appeal, appellant argues that her 30-year employment as a mail clerk caused her
bilateral CTS. The Board notes that the underlying issue is medical in nature. The medical
evidence submitted was not sufficient to shift the weight of the evidence in appellant’s favor or
to establish that OWCP erred in denying her claim.
As none of the evidence raises a substantial question concerning the correctness of
OWCP’s decision, appellant has failed to establish clear evidence of error on the part of OWCP
in denying further merit review.18
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Time Limitations, Chapter 2.1602(e)(6)
(August 2011).
14

See Debra McDavid, 57 ECAB 149 (2005).

15

See W.R., Docket No. 09-2336 (issued June 22, 2010).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (March 2011).

17

V.W., Docket No. 12-1901 (issued March 5, 2013).

18

A.S., Docket No. 11-356 (issued September 16, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 27, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Emporia, VA, Employer
__________________________________________

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

Docket No. 19-1221
Issued: June 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 10, 2019 appellant filed a timely appeal from a November 13, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
while in the performance of duty on July 10, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On August 1, 2017 appellant, then a 53-year-old retail sales associate, filed a traumatic
injury claim (Form CA-1) alleging that on July 10, 2017 she experienced sinus headaches, a runny
nose, coughing, and chest discomfort as a result of exposure to fumes and dust from contractors
cutting galvanized steel in an unventilated area of the employing establishment while in the
performance of duty. She stopped work on August 1, 2017.
Appellant provided a July 31, 2017 witness statement from coworker J.R., who stated that
he observed her exposure to dusts and fumes from “cutting galvanized steel inside the [employing
establishment] on July 10, 2017 to the present.” J.R. further indicated that she advised him that
dust in the office was making her sick. He contacted a poison control center agent, who posited
that appellant’s symptoms could have been caused by exposure to zinc oxide.
Appellant also submitted medical evidence in support of her claim.
In an August 1, 2017 report, Dr. Michael S. Anderson, a Board-certified family
practitioner, related appellant’s assertions that she had been exposed to welding fumes and dusts
while at work on July 10, 2017. He noted a chest x-ray was within normal limits and pulse
oximetry demonstrated oxygen saturation at 90 percent. Dr. Anderson diagnosed inhalation
exposure to metal fumes and held appellant off work. In an August 4, 2017 follow-up report, he
diagnosed inhalation injury/bronchospasm. Dr. Anderson prescribed medication.
In a duty status report (Form CA-17) dated August 13, 2017, Dr. Anderson diagnosed
dyspnea due to inhalation exposure. He held appellant off from work due to “unsafe air quality”
and prescribed an inhaler. In an August 14, 2017 report, Dr. Anderson again held her off from
work.
By letter dated August 15, 2017, the employing establishment confirmed that contractors
were “working onsite in the building.” It controverted the claim as an August 8, 2017 air quality
analysis of samples obtained at the employing establishment on August 1, 2017 showed no traces
of zinc, lead, or dust above OSHA (U.S. Department of Labor, Occupational Safety and Health
Administration) permissible exposure levels.3
In an August 15, 2017 letter, appellant noted that she was under medical care until
August 28, 2017 due to a lung infection from inhaling smoke, dust, and fumes from the cutting of
steel at the employing establishment.
By letter dated September 26, 2017, appellant contended that she had been exposed to toxic
elements while at work from July 10 to August 1, 2017.4

3
The sample analysis demonstrated zinc levels at less than 2.60 micrograms per cubic meter of air at the exterior
loading dock, in the interior adjacent to double doors, and in the interior at the roof access ladder. The minimum risk
level for zinc was noted as 2.50 micrograms per cubic meter of air.
4
An August 11, 2017 toxicology screen demonstrated elevated levels of silver, thallium, and tin. An August 24,
2017 laboratory hair test analysis for toxic metals demonstrated elevated levels of magnesium, bismuth, and sodium.

2

In a statement dated March 19, 2018, appellant explained that, during 16-workdays from
July 10 to August 1, 2017, she had been exposed to foul-smelling dust and fumes from a contractor
drilling through brick and metal in an unventilated area. On August 1, 2017 she experienced
dyspnea, coughing, a swelling sensation in her throat, and runny eyes and nose. Appellant asked
the contractor to stop drilling as she and other workers had been sickened. A manager ordered the
contractors to stop work and placed a fan in an effort to air out the area in the building.
In a report dated March 19, 2018, Dr. John W. Ellis, a Board-certified family practitioner,
related appellant’s account of metal dusts and fumes at work commencing on July 10, 2017 when
a contractor had drilled through metal and brick to replace doors. He diagnosed upper and lower
respiratory tract irritation, sensitization of lower respiratory tract, occupational asthma/reactive
airway disease, and bronchitis. Dr. Ellis opined that these diagnoses were caused by significant
exposure to metal dusts and fumes over a three-week period while at work.
In an April 25, 2018 letter, appellant requested that OWCP accept her claim for
occupational asthma and bronchitis based on Dr. Ellis’ opinion.
In a development letter dated October 11, 2018, OWCP notified appellant of the
deficiencies of her claim and afforded her 30 days to submit additional medical evidence. It
provided a questionnaire for her completion. By letter of even date, OWCP also requested that the
employing establishment respond to appellant’s allegations and provide information regarding her
workplace exposure.
In response, appellant provided a completed questionnaire dated October 29, 2018. She
attributed the claimed respiratory conditions to exposure to metal dusts and fumes for 120 hours
from July 10 to August 1, 2017. Appellant alleged that management had refused to clean the
employing establishment until the Postmaster General intervened.
Appellant also submitted an October 25, 2018 letter by Dr. Anderson, noting her treatment
on August 1 and 4, 2017 for “inhalation exposure and injury.”
By decision dated November 13, 2018, OWCP denied appellant’s claim, finding that the
factual component of fact of injury had not been established. It found that the evidence of record
was insufficient to establish that the July 10, 2017 incident identified on appellant’s August 1,
2017 claim form, or the subsequent workplace events mentioned in her later statements, had
occurred as alleged. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 period of FECA,5 that an injury was sustained in the performance of duty as alleged,
5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
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, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The 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. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. 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.11
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the July 10,
2017 employment incident occurred while in the performance of duty as alleged.
Appellant filed a claim alleging that she sustained a respiratory condition and headaches
caused by exposure to dusts and fumes during construction at the employing establishment
commencing July 10, 2017.

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
See J.C., Docket No. 18-1803 (issued April 19, 2019); 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).
8

M.M., Docket No. 17-1522 (issued April 25, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

M.H., Docket No. 18-1737 (issued March 13, 2019); J.N., Docket No. 18-0675 (issued December 10, 2018); E.H.,
Docket No. 16-1786 (issued January 30, 2017).
10

K.R., Docket No. 19-0477 (issued August 14, 2019); B.P., Docket No. 19-0306 (issued August 9, 2019);
Charles B. Ward, 38 ECAB 667, 67-71 (1987).
11
See M.C., Docket No. 18-1278 (issued March 7, 2019); J.R., Docket No. 17-0056 (issued March 21, 2017); D.B.,
58 ECAB 464, 466-67 (2007).

4

OWCP denied appellant’s claim as it found that there was insufficient evidence to establish
the alleged July 10, 2017 employment exposure as factual. As noted, 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.12
In the present case, the record establishes that from July 10 to August 1, 2017, construction
activities at the employing establishment, including drilling and cutting galvanized steel, generated
dusts and fumes. The employing establishment’s August 15, 2017 statement confirms that
contractors were working inside the employing establishment during the period at issue.
Appellant’s coworker, J.R., provided a July 31, 2017 witness statement asserting that he personally
observed appellant’s exposure to dusts and fumes as a result of contractors cutting galvanized steel
inside the employing establishment beginning July 10, 2017 through the date of his letter, and that
she reported feeling ill due to these exposures. Additionally, appellant sought prompt medical
care, first with Dr. Anderson on August 1, 2017, who related her account of exposure to metal
dusts and welding fumes commencing July 10, 2017 and diagnosed respiratory conditions.
The respiratory injury appellant allegedly sustained is consistent with the facts and
circumstances she set forth, witness statements, her course of action, and the medical evidence she
submitted. The history of the occupational exposures was confirmed by Dr. Anderson’s
contemporaneous medical reports. The Board finds that this evidence establishes that the alleged
exposures to construction dusts and fumes occurred as alleged.13 Appellant has thus established
the first component of fact of injury.14
As appellant has established the claimed occupational exposures occurred as alleged, the
question becomes whether these exposures caused an injury.15 As OWCP found that appellant had
not establish fact of injury, it did not evaluate the medical evidence. Thus, the Board will set aside
OWCP’s November 13, 2018 decision and remand the case for consideration of the medical
evidence of record.16 After such further development as deemed necessary, OWCP shall issue a
de novo decision addressing whether appellant has met her burden of proof to establish an injury
causally related to the accepted occupational exposures.17
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the July 10,
2017 employment incident occurred in the performance of duty, as alleged. The Board further

12

See L.D., Docket No. 19-0039 (issued May 7, 2019); J.R., id.; Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
13

J.C., supra note 7; M.C., supra note 11; M.M., supra note 8.

14

J.C., supra note 7.

15

Id.

16

S.M., Docket No. 16-0875 (issued December 12, 2017).

17

P.S., Docket No. 19-1818 (issued April 14, 2020).

5

finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the accepted occupational exposures.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 9, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2431
Issued: March 16, 2009

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 July 8, 2008 appellant filed a timely appeal from the April 7, 2008 merit decision of
the Office of Workers’ Compensation Programs, which found her at fault in an overpayment.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant was at fault in creating a $3,437.01 overpayment of
compensation.
FACTUAL HISTORY
On July 3, 2002 appellant, then a 49-year-old postal clerk, filed a claim alleging that her
left upper extremity condition was a result of her federal employment, which for the prior two
weeks had required her to perform repetitive motion tasks, such as keyboarding and filing. The
Office accepted her claim for left median neuritis.

On August 31, 2006 the Office issued a schedule award for a 13 percent permanent
impairment of appellant’s left upper extremity. The period of the award ran from September 3,
2006 through June 13, 2007. The schedule award provided that the Office would be paying
appellant at the compensation rate of 75 percent. Weekly compensation, adjusted for cost-ofliving, was $752.00. Appellant would receive payments of $3,008.00 each four weeks. The
Office notified appellant as follows:
“4. CHANGE IN STATUS OF DEPENDENTS -- If your award is paid at the
augmented rate of 3/4 because you have one or more dependents, you are required
to provide written notification immediately of any change in status of your
dependents, to the address on the first page of this letter. The notice must be
signed by you and include your file number, the name of the dependent whose
status changed, the effective date of the change, and the nature of the change in
status. If you originally claimed only one dependent, and there is a change in the
status of your sole dependent, do not cash any checks you received after the
change in status of that dependent. Return the checks promptly for adjustment by
this Office.”
Appellant authorized the Office to deposit her payments directly into her bank account.
On May 7, 2007 appellant completed a Form CA-1032 advising that her child turned 18
on July 28, 2006 and was no longer a dependent.
On July 30, 2007 the Office made a preliminary finding that appellant was at fault in
creating a $3,437.01 overpayment. It found that appellant accepted payments that she knew or
should have known were incorrect. The Office noted that the August 31, 2006 schedule award
informed appellant that she was being paid at the 75 percent rate, and she was instructed to notify
the Office immediately of any change in dependent status and to return any checks paid at the
incorrect rate.
On August 7, 2007 appellant requested waiver. She indicated that the overpayment
occurred through no fault of her own. Appellant signed an overpayment recovery questionnaire
but offered no information on her monthly income, expenses or assets. She argued that she kept
the Office informed on an annual basis of her dependent’s status. Appellant stated that she was
not liable for an overpayment that the Office created: “The Office was well aware of my
dependent status and the Office has the responsibility of computing lost wages. The
overpayment was through no fault of my own.”
In a decision dated April 7, 2008, an Office hearing representative found that appellant
was at fault in creating a $3,437.01 overpayment. The hearing representative found that
although appellant had repeatedly notified the Office that her dependent son would turn 18 on
July 28, 2006 she accepted payments at the augmented rate when she was thoroughly aware that
she was not entitled to such compensation.

2

On April 24, 2008 the Office notified appellant that it would collect the overpayment by
deducting $150.00 from continuing compensation for loss of wage-earning capacity.1
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 A disabled employee with one
or more dependents is entitled to have her basic compensation for disability augmented from 66
2/3 percent to 75 percent of monthly pay.3 A “dependent” includes an unmarried child, while
living with the employee or receiving regular contributions from the employee toward his
support, and who is under the age of 18, or over 18 years of age and incapable of self-support
because of physical or mental disability. Compensation payable for a child that would otherwise
end because the child has reached 18 years of age shall continue if he is a student at the time he
reaches 18 years of age for so long as he continues to be such a student or until he marries.4
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she received
from the Office are proper. The recipient must show good faith and exercise a high degree of
care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; or (2) Failed to provide information which she knew or should have
known to be material; or (3) Accepted a payment which she knew or should have known to be
incorrect (this provision applies only to the overpaid individual).5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.6 The fact that the Office may have
erred in making the overpayment does not by itself relieve the individual who received the
overpayment from liability for repayment if the individual was also at fault in accepting the
overpayment.7

1

Appellant is not appealing the recovery of the overpayment.

2

5 U.S.C. § 8102(a).

3

Id. at § 8110(b).

4

Id. at § 8110(a).

5

20 C.F.R. § 10.433(a) (1999).

6

Id. at § 10.433(b).

7

Id. at § 10.435(a).

3

When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to the Office the amount of the overpayment as soon as the
error is discovered or her attention is called to same. If no refund is made, the Office shall
decrease later payments of compensation, taking into account 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 hardship.8
ANALYSIS
Appellant’s son turned 18 on July 28, 2006, so she was not entitled to compensation paid
at the 75 percent augmented rate for dependents. Nonetheless, the Office paid the August 31,
2006 schedule award at the augmented rate. This caused an overpayment of compensation from
September 3, 2006 through June 13, 2007, the period of the award.
Appellant does not dispute the fact or amount of the overpayment. What she disputes is
the Office’s finding that she was at fault in its creation. Appellant argues that the Office was
fully aware her son would turn 18 on July 28, 2006, “therefore the overpayment was created by
the Office.”
It appears that the Office was fully aware, or should have been, that appellant’s son
turned 18 on July 28, 2006. The hearing representative acknowledged that appellant had
repeatedly notified the Office of this fact. So the Office made a mistake when it erroneously
paid the schedule award at the 75 percent augmented rate for dependents. This does not, by
itself, relieve appellant from liability for repayment if she was also at fault in accepting the
overpayment.9 So the question is whether appellant was also at fault.
Appellant knew, or should have known, that the schedule award payments were incorrect.
She knew that her son turned 18 on July 28, 2006 and that she was not entitled to compensation
at the 75 percent augmented rate for dependents. So when appellant received the August 31,
2006 schedule award, she should have seen that the Office was going to pay her compensation at
the incorrect rate, at the 75 percent rate, from September 3, 2006 through June 13, 2007. She did
nothing to stop it. Appellant authorized the Office to make direct deposits of this augmented
compensation and sat quietly by as the payments rolled in. She did not return them, as the Office
directed.
Appellant argues that she is not liable for the Office’s mistakes. But she is liable for her
own mistakes. Appellant accepted payments that she knew or should have known were
incorrect. The Board therefore finds that she was at fault in creating the overpayment. The
Board will affirm the Office’s April 7, 2008 decision.

8

Id. at § 10.441(a).

9

The fact that an overpayment resulted from the negligence of the Office does not excuse an employee from
accepting payments that she knew or should have known she was not entitled. See Danny E. Haley, 56 ECAB 393
(2005); Judith A. Cariddo, 55 ECAB 348 (2004).

4

Because appellant was at fault under the third criterion listed above, she is not entitled to
consideration of waiver.
CONCLUSION
The Board finds that appellant was at fault in creating a $3,437.01 overpayment of
compensation. She is therefore not entitled to consideration of waiver.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2009
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

5