United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 12-322
Issued: July 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2011 appellant filed a timely appeal from a September 13, 2011
decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained more than a one percent
impairment of the right upper extremity, for which she received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before September 21, 2009 appellant, then a 39-year-old mail
handler, sustained bilateral carpal tunnel syndrome due to repetitive hand motions at work.2
October 12, 2009 electromyogram (EMG) and nerve conduction velocity (NCV) studies
showed bilateral median compression neuropathies, worse on the right. On April 6, 2010
Dr. Thomas Wiedrich, an attending Board-certified orthopedic surgeon, performed a right
median nerve release. Following a period of light duty, he released appellant to full duty with no
restrictions on September 15, 2010.
On October 19, 2010 appellant claimed a schedule award. In a November 30, 2010 letter,
OWCP advised her to submit an impairment rating from her attending physician referring to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, “A.M.A., Guides”).
In May 17 and June 8, 2011 reports, Dr. Mary K. Morrell, an attending Board-certified
orthopedic surgeon, opined that appellant had reached maximum medical improvement as of
September 15, 2010. Referring to Table 15-233 of the sixth edition of the A.M.A., Guides to
evaluate the right hand and wrist, she found a grade 1 diagnosis-based impairment (CDX) of
median nerve entrapment neuropathy, a grade modifier for Functional History (GMFH) of 1 for
intermittent symptoms, a grade modifier for Clinical Studies (GMCS) of 1 for objective residual
symptoms and a grade modifier for Physical Examination (GMPE) findings of 2 due to
decreased sensation. Using the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX), Dr. Morrell found a grade modifier of 1, equaling a default impairment rating of
2 percent. She found, however, that appellant’s QuickDASH score of nine percent lowered the
two percent default rating to one percent, resulting in a final one percent impairment of the right
upper extremity.
On July 27, 2011 OWCP asked an OWCP medical adviser to review Dr. Morrell’s report
and the medical record and provide an impairment rating. In an August 1, 2011 report, the
medical adviser concurred with Dr. Morrell’s application of the A.M.A., Guides and assessment
of a one percent impairment of the right arm.
By decision dated September 13, 2011, OWCP granted appellant a schedule award for a
one percent impairment of the right upper extremity.

2

Under File No. xxxxxx777, OWCP accepted a left fifth finger fracture. Appellant claimed a schedule award.
Matters pertaining to File No. xxxxxx777 are not before the Board in the present appeal.
3

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”

2

LEGAL PRECEDENT
The schedule award provisions of FECA4 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). The A.M.A., Guides
divides the upper extremity into regions for rating purposes. The hand is one of the designated
regions.9
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. Dr. Wiedrich,
an attending Board-certified orthopedic surgeon, performed a right median nerve release on
April 6, 2010. Appellant claimed a schedule award on October 19, 2010. In support of her
claim, she submitted May 17 and June 8, 2011 reports from Dr. Morrell, an attending Boardcertified orthopedic surgeon, who found one percent impairment of the right arm. Dr. Morrell
identified a class 1 diagnosis-based impairment of median nerve entrapment, with a physical
findings modifier of 2 and a functional history modifier of 1. Using the net adjustment formula
of GMFH-CDX + GMPE-CDX + GMCS-CDX, or (1-1) + (2-1) + (1-1), she calculated a grade
modifier of 1, leading to a default impairment rating of two percent. Dr. Morrell modified this
rating due to appellant’s QuickDASH score of nine, lowering the total impairment rating for the

4

5 U.S.C. § 8107.

5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides (6th ed. 2008), pages 494-531.

9

A.M.A., Guides (6th ed. 2008), page 384, Figure 15-1, “Upper Extremity Regions.”

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right upper extremity to one percent. An OWCP medical adviser reviewed Dr. Morrell’s report
on August 1, 2011 and concurred with the one percent rating for right carpal tunnel syndrome.
The Board finds that Dr. Morrell properly applied the appropriate tables and grading
schemes of the A.M.A., Guides in determining the one percent impairment. Therefore, OWCP
properly issued the September 13, 2011 schedule award for one percent impairment of the right
arm.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained more than a one
percent impairment of the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2011 is affirmed.
Issued: July 13, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
O.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tujunga, CA, Employer
__________________________________________

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

Docket No. 06-1559
Issued: April 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2006 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated January 25 and March 28, 2006. Under 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 sustained a recurrence of disability as of December 17,
2003 causally related to his accepted left groin injury.
FACTUAL HISTORY
This is the third appeal before the Board. To briefly summarize the facts appellant, a
30-year-old letter carrier, injured his left groin while lifting a tray of mail on December 30, 1995;
the Office accepted his claim for pyriformis muscle strain. The Office paid appellant
compensation for appropriate periods and he ultimately returned to work on light duty. On
January 9, 1998 appellant requested compensation for loss of wages for the period December 11,
1997 through February 10, 1998. By decision dated December 18, 1998, the Office denied

appellant’s claim for a recurrence of disability, finding that he failed to submit medical evidence
sufficient to establish that his current left groin condition was caused or aggravated by the
December 30, 1995 employment injury. In a decision dated June 8, 2000, the Board affirmed the
Office’s December 18, 1998 decision.1
By decision dated May 17, 2002, the Office denied compensation for wage loss
subsequent to May 14, 1999. In a March 13, 2003 decision,2 the Board set aside the Office’s
May 17, 2002 decision. The Board found that there was a conflict in the medical evidence
between the opinions of Dr. John T. Harbaugh and Dr. Mark W. Vogel regarding whether
appellant continued to have any disability causally related to his work injury. The Board
instructed the Office to refer appellant to an impartial medical specialist to resolve the conflict in
the medical evidence. The complete facts of this case are set forth in the Board’s March 13,
2003 decision and are herein incorporated by reference.
The Office referred appellant to Dr. Eugene C. Rajaratnam, a Board-certified urological
surgeon. In a report dated July 25 2003, Dr. Rajaratnam stated that, due to appellant’s
unrelenting groin pain, he was unable to perform his duties as a mail carrier. In a follow-up note
dated September 24, 2003, he stated that appellant was still disabled with regard to lifting or any
strenuous activity and was not able to resume any position similar to that which he had held in
the past.
On September 24, 2003 the Office authorized the purchase of a wheelchair for appellant’s
accepted work-related left groin strain and approved surgery to remove his left testicle. The
Office also advised appellant to file CA-7 forms for compensation for periods of disability.
On November 27, 2004 appellant filed a Form CA-2a, claim for benefits, alleging that he
sustained a recurrence of disability on December 17, 2003, which was causally related to his
accepted groin condition. In a report dated September 2, 2004, Dr. Harbaugh noted a history of
chronic, severe left groin pain which had significantly improved as of January 2004. He advised
that appellant was moving well and was walking normally without a wheelchair. Dr. Harbaugh
related that appellant requested work restrictions so that he could return to work without fear of
reaggravating his left groin pain. He outlined restrictions of no lifting greater than 10 pounds, no
repetitive bending over at the waist, no forceful pushing or pulling and no ladder climbing;
appellant should be allowed to sit or stand at will, changing body position as needed to relieve
pain.
By decision dated April 27, 2005, the Office denied appellant compensation for a
recurrence of his accepted left groin condition. The Office found that appellant failed to submit
medical evidence sufficient to establish that the claimed condition or disability as of
December 17, 2003 was caused or aggravated by the accepted condition.

1

Docket No. 99-998 (issued June 8, 2000).

2

Docket No. 03-77 (issued March 13, 2003).

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On May 25, 2005 appellant requested an oral hearing, which was held on
December 8, 2005. He did not submit any additional medical evidence. By decision dated
January 25, 2006, an Office hearing representative affirmed the July 22, 2004 Office decision.
By letter dated March 2, 2006, appellant requested reconsideration. He submitted a
March 1, 2006 report from Dr. Harbaugh, who stated findings on examination and related that
appellant had experienced constant, continuous pain in his left groin since the 1995 work injury.
Dr. Harbaugh diagnosed chronic left groin pain, secondary to chronic pain syndrome and stated:
“Currently, [appellant] reports that he is doing a lot better. He states that, about
four or five times a month, he can have a flare-up of pain in his left groin. This can
occur spontaneously, but often it occurs as a result of doing forceful lifting, pushing
or pulling. The patient is able to walk very well now and his only problem with
walking occurs if he has a flare[-]up of his groin pain for the other reasons listed
above.”
Dr. Harbaugh opined that appellant could work on a light duty basis and was more suited
for desk work. He reiterated the restrictions he indicated in his previous reports.
By decision dated March 28, 2006, the Office denied modification of the April 27, 2005
decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that he can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.3
ANALYSIS
Appellant has failed to submit any medical opinion containing a rationalized, probative
report which relates his condition or disability as of December 17, 2003 to his accepted left groin
condition. For this reason, he has not discharged his burden of proof to establish his claim that
he sustained a recurrence of disability as a result of his accepted employment condition.
Appellant has failed to submit evidence to show that he sustained a worsening of his left
groin and back condition or was totally disabled from all work after December 17, 2003.
Dr. Harbaugh stated in his September 2, 2004 report that appellant had a history of chronic,
severe left groin pain, but noted that this pain had significantly improved as of January 2004. He
indicated that appellant appeared to be moving well and able to walk normally without the aid of

3

Conrad Hightower, 54 ECAB 796 (2003).

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a wheelchair. Dr. Harbaugh related that appellant indicated a desire to return to work and
requested work restrictions to facilitate his return.
Dr. Harbaugh’s September 2, 2004 report did not constitute sufficient medical evidence
demonstrating a causal connection between appellant’s employment-related condition and his
alleged recurrence of disability. Causal relationship must be established by rationalized medical
opinion evidence. Dr. Harbaugh’s report failed to provide an explanation of how appellant’s left
groin condition would cause or contribute to his disability as of December 17, 2003. While his
report provided a diagnosis of appellant’s current condition, Dr. Harbaugh indicated that his
chronic left groin pain had significantly improved just one month after the alleged recurrence.
His report did not provide a discussion of how appellant’s accepted groin condition would have
caused or contributed to the alleged recurrence or establish that appellant’s alleged disability as
of December 17, 2003 was causally related to his accepted condition. This report, therefore, did
not contain rationalized medical evidence sufficient to establish that appellant had sustained a
recurrence of his work-related disability as of December 17, 2003. As appellant did not submit
medical evidence sufficient to establish that he sustained a recurrence of his work-related left
groin, the Office properly denied compensation in its April 27, 2005 decision.
Appellant did not submit any additional medical evidence prior to the hearing
representative’s January 25, 2006 decision.
Following this decision, he submitted
Dr. Harbaugh’s March 1, 2006 report. Dr. Harbaugh indicated that appellant had experienced
constant, continuous pain in his left groin since the 1995 work injury and reiterated the diagnosis
of chronic left groin pain, secondary to chronic pain syndrome. He advised that appellant’s
condition had recently improved although he related that appellant experiences flare-ups of pain in
the left groin approximately four to five times per month. Dr. Harbaugh related that these flare-ups
occurred spontaneously or sometimes were triggered by forceful lifting, pushing or pulling. He
indicated that appellant was able to walk without difficulty unless he has a flare-up of his groin
pain. Dr. Harbaugh advised that appellant was able to work on a light-duty basis, preferably doing
sedentary work, under the restrictions he had previously outlined.
This report, however, did not constitute sufficient medical evidence demonstrating a
causal connection between appellant’s employment-related condition and his alleged recurrence
of disability. Causal relationship must be established by rationalized medical opinion evidence.
Dr. Harbaugh’s March 1, 2006 report failed to provide an explanation in support of appellant’s
claim that he was disabled as of December 17, 2003. While his report provided a diagnosis of
appellant’s current condition and noted that he complained of disabling left groin pain as of
December 17, 2003, it did not provide a discussion of how this condition would establish that
appellant sustained disability as of December 17, 2003 causally related to his accepted left groin
condition.
Appellant has not submitted sufficient medical evidence supporting his claim that he
sustained a recurrence of his employment-related disability as of December 17, 2003. The
Office properly found that appellant was not entitled to compensation based on a recurrence of
disability. The Board will affirm the January 25 and March 28, 2006 Office decisions.

4

CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of December 17, 2003 causally related to his
accepted left groin condition.
ORDER
IT IS HEREBY ORDERED THAT the March 28 and January 25, 2006 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: April 11, 2007
Washington, DC

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

David S. Gerson, 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
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE NAVY,
GUANTANAMO BAY FIRE DEPARTMENT,
Guantanamo Bay, Cuba, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0323
Issued: August 23, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 26, 2018 appellant filed a timely appeal from an October 22, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 19-0323.
On September 17, 2018 appellant, then a 48-year-old fire fighter captain, filed a traumatic
injury claim (Form CA-1) alleging that on September 1, 2001 he injured his lower back when he
picked up a three-inch diameter hose while in the performance of duty. On the claim form the
employing establishment advised that appellant stopped work on August 13, 2018 and that it

1

The Board notes that, following the October 22, 2018 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.

received notice of the alleged injury on September 17, 2018. It controverted the claim indicating
that it was untimely filed and that appellant was a foreign national.2
In a development letter dated September 18, 2018, OWCP advised appellant that the
evidence submitted was insufficient to establish that he provided timely notice of his alleged
September 1, 2001 employment injury, that he was a Federal Civil Employee, or that he sustained
an injury in the performance of duty. On the same letter it advised the employing establishment
that “if the employee was treated at an agency medical facility for this injury, the employing
[establishment] must provide the treatment notes directly to OWCP.”
Appellant submitted medical evidence to the record from 2018. In an October 21, 2018
supplemental statement, he related that he was transported to and received treatment at the U.S.
Naval Hospital at the time of his September 1, 2001 back injury. Appellant noted that he received
medical treatment from the U.S. Naval Hospital periodically over the years for his back condition.
He advised that he filed the claim now as his back condition had worsened to the point where
immediate surgery was necessary.
By decision dated October 22, 2018, OWCP denied appellant’s traumatic injury claim,
finding that it was untimely filed pursuant to 5 U.S.C. § 8122.
The Board finds that this case is not in posture for decision. In his October 21, 2018
statement, appellant related that he was transported to the U.S. Naval Hospital at the time of his
September 1, 2001 back injury. FECA provides an exception to the three-year time limitation for
filing a claim, indicating that a claim will be considered timely if a claimant’s immediate
supervisor had actual knowledge of the injury within 30 days such that he or she was reasonably
put on notice of an on-the-job injury or death. The Board has held that, when a claimant seeks
treatment from the employing establishment’s health unit for a claimed condition, his or her
supervisor is deemed to have actual knowledge of the claimed injury as of the date of the
treatment.3 Although OWCP had requested that the employing establishment submit all records
regarding appellant’s medical treatment at its employing establishment medical facilities to the
record, at the time of the decision, the employing establishment had not submitted any evidence
regarding appellant’s medical treatment at its facility for the alleged September 1, 2001 injury.
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter, but rather shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.4 Since appellant’s allegations indicate that the
employing establishment would have in its possession evidence relevant to timely notice of the

2

5 U.S.C. § 8137 provides compensation to an employee or dependent who is neither a citizen nor a resident of the
United States or Canada.
3

C.C., Docket No. 18-0912 (issued July 11, 2019); J.T., Docket No. 18-0220 (issued July 27, 2018); Robert E.
Kimzey, 40 ECAB 762, 766 (1989).
4

See R.V., Docket 18-0268 (issued October 17, 2018).

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alleged injury, it should obtain a response from the employing establishment regarding appellant’s
medical records which are in its possession.5
The case will therefore be remanded to OWCP to obtain all medical records in the
possession of the employing establishment pertaining to appellant’s alleged September 1, 2001
employment injury. After such further development as deemed necessary, OWCP shall issue a
de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the October 22, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: August 23, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

See 20 C.F.R. § 10.117(a), which provides that an employing establishment that has reason to disagree with an
aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual allegation or
argument with which it disagrees and provide evidence or argument to support its position. The employing
establishment may include supporting documents such as witness statements, medical reports or records, or other
relevant information.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AVIATION ADMINISTRATION,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1575
Issued: February 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 3, 2014 appellant, through counsel, filed a timely appeal of a January 24, 2014
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 the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical and
compensation benefits effective April 22, 2013.
On appeal, counsel argued that the impartial medical examiner was not properly selected,
and that the opinion of the impartial medical examiner was vague, speculative, equivocal, and
irrational.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on two occasions. On March 25, 2004
appellant, then a 45-year-old air traffic control specialist, filed a traumatic injury claim alleging
that on March 11, 2004 he injured his back walking down 32 flights of stairs in the performance
of duty. He alleged that he sustained a permanent aggravation of his preexisting back condition
of lumbar spondylolysis, degenerative disc disease, and lumbar radiculitis. OWCP denied
appellant’s claim and the Board affirmed the August 15, 2005 and May 30, 2006 decisions
denying his requests for reconsideration on November 6, 2006.2 Following the Board’s decision,
OWCP accepted his claim for temporary aggravation of preexisting lumbar spondylosis. On
February 2, 2009 OWCP terminated appellant’s medical and wage-loss benefits effective
January 28, 2009 based on a second opinion report of Dr. John D. Douthit, a Board-certified
orthopedic surgeon. By decision dated September 8, 2009, an OWCP hearing representative
affirmed OWCP’s February 2, 2009 decision, finding that the second opinion report was entitled
to the weight of the medical evidence and established that appellant had sustained only a
temporary aggravation of his underlying back condition. The Board reviewed this decision on
November 4, 20103 and found an unresolved conflict of medical opinion evidence between
Dr. Christopher B. Ryan, Board-certified in physical medicine and rehabilitation and
Dr. Douthit, a Board-certified orthopedic physician and second opinion referral regarding
whether appellant sustained a temporary or permanent aggravation of his underlying condition.
The facts and circumstances of the case as set out in the prior decisions are adopted herein by
reference.
On December 1, 2010 OWCP completed a Form ME023 and referred appellant for an
impartial medical examination with Dr. Jeffery Sabin, a Board-certified orthopedic surgeon, to
resolve the existing conflict of medical opinion evidence. On December 16, 2010 counsel
objected to the selection of Dr. Sabin on the basis that there were other appropriate specialists
located closer to appellant’s home. OWCP responded on December 23, 2010, stating that
Dr. Sabin was properly selected. It provided a bypass history demonstrating that two physicians
were bypassed due to their specialties. OWCP explained that, as they were hand specialists and
appellant had a back condition, they were inappropriate to serve as impartial medical specialists.
On January 5, 2011 counsel requested the information relied upon by OWCP to determine that
the bypassed physicians were hand specialists, which OWCP treated as a Freedom of
Information Act request.
In a report dated January 14, 2011, Dr. Sabin reviewed the statement of accepted facts,
medical records, and appellant’s history. He listed appellant’s preexisting back condition and the
posterior spinal fusion from L4 through S1 as well as the removal of hardware. Dr. Sabin
described appellant’s accepted employment incident and his resulting back pain. He noted that
appellant was unable to return to work due to medication required for his back pain and that he
retired in 2005. Dr. Sabin stated that he did not have all of appellant’s medical records from his
treatment in Baltimore, Maryland. On physical examination Dr. Sabin found that appellant had
normal gait, and that sensation was normal to light touch in all extremities. Appellant also had
2

Docket No. 06-1524 (issued November 6, 2006).

3

Docket No. 10-983 (issued November 4, 2010).

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normal reflexes. Dr. Sabin found that appellant had lumbar flexion of 90 degrees and 30 degrees
of extension due to severe exacerbation of his back pain. He reviewed diagnostic testing and
found objective evidence for a temporary aggravation. Dr. Sabin stated that there were no
imaging studies or physical examination changes to establish a permanent aggravation. He
stated that there was no medical reason to have a solid fusion from L4 to S1 and then develop a
permanent aggravation in this area. Dr. Sabin opined that at most a soft tissue temporary
aggravation would be reasonable. He found that appellant experienced pain with extension and
stated that would result from a mobile segment. Dr. Sabin stated that if appellant received
injections in a mobile segment proximal to his L4-S1 fusions which provided him pain relief
while in Baltimore, then this would be supportive of a permanent aggravation. He concluded
that if there was no evidence of a mobile segment above his solid fusion, then appellant’s finding
supported only a temporary aggravation.
On March 17, 2011 OWCP requested that appellant provide additional medical records
from his treatment in Baltimore and allowed 45 days for a response. Appellant submitted his
medical records on April 19, 2011. Dr. Stanislav S. Malov, an anesthesiologist , performed L1-2
nerve root blocks bilaterally on October 4, 2004. On October 11, 2004 Dr. Paul D. Gilmore, a
Board-certified anesthesiologist, performed L1 through L4 facet injections. Dr. Nelson Hendler,
a Board-certified neurologist, examined appellant beginning on September 29 through
October 14, 2004 and stated that appellant underwent a nerve root block at L1-2 with 10 percent
pain relief, L2-3 nerve root block with 50 percent relief, and L3-4 facet blocks with 20 percent
relief. He stated that appellant did not undergo root blocks at L4-5 and L5-S1 due to scar tissue.
Dr. Hendler diagnosed L3-S1 facet syndrome as well as L5-S1 disc instability and radiculopathy.
OWCP provided these records to Dr. Sabin on May 10, 2011 as well as an addendum to
the statement of accepted facts. Dr. Sabin reviewed this evidence and submitted a report dated
May 17, 2011. He stated that appellant had adequate investigation into his motion segments
above his solid L4 to S1 fusion and that this investigation did not define a pain generator.
Dr. Sabin stated that appellant’s medical records established that there was no anatomic or
physiologic pain generator proximal to the area of his fusion and, that therefore, there was no
objective evidence for any permanent aggravation of his preexisting lumbar condition due to the
employment incident. He opined that appellant had chronic pain syndrome related to his
preexisting conditions and experienced no residuals of the temporary aggravation due to
descending the stairs at work. Dr. Sabin stated that appellant’s temporary aggravation and
resultant total disability would have ceased two weeks after March 11, 2004.
Appellant underwent bilateral L3-4 facet joint injections on August 15, 2011 and
experienced a great reduction in pain. Dr. Roberta P. Anderson-Oeser, Board-certified in
physical medicine and rehabilitation, opined on August 30, 2011 that his remaining pain
following the injections was in the S1 joints. She injected appellant’s right sacroiliac joint on
September 12, 2011.
Dr. Ryan, Board-certified in physical medicine and rehabilitation, and the originator of
the conflict of medical opinion evidence, examined appellant on September 13, 2011. He
provided appellant’s history of injury and medical history. Dr. Ryan stated that appellant had
three areas of pain: above the area of the fusion; left of the fusion mass at L5; and below the
level of the fusion. He stated that appellant experienced an aggravation of his condition due to

3

overuse of the available motion segments above and below his fusion. Dr. Ryan stated that it
was unclear if the aggravation was permanent given appellant’s positive response to facet
injections.
Dr. Anderson-Oeser preformed additional injections at L2 and L3 medial facet joints on
November 21, 2011 and January 11, 2012. She stated that these injections resulted in a reduction
in appellant’s back pain.
OWCP proposed to terminate appellant’s wage-loss and medical benefits on
March 13, 2013. It relied on Dr. Sabin’s reports, finding that appellant sustained a temporary
aggravation of his underlying condition which had resolved. OWCP allowed appellant 30 days
to respond. In a letter dated April 11, 2013, appellant’s counsel requested that OWCP issue a
decision regarding appellant’s claim for wage-loss benefits and alleged that Dr. Sabin was
improperly selected based on a ME023 form.
By decision dated April 22, 2013, OWCP terminated appellant’s medical and wage-loss
benefits effective April 22, 2013. In a letter dated May 14, 2013, counsel requested an oral
hearing before an OWCP hearing representative.
At the oral hearing on November 5, 2013, counsel argued that Dr. Sabin’s reports were
not sufficient to resolve the conflict as he did not specifically determine from Dr. Hendler’s
October 2004 reports that appellant’s mobile segments were pain generators. Counsel noted that
Dr. Hendler stated that L1-2 nerve blocks provided 10 percent pain relief and that L2-3 nerve
blocks provided 50 percent relief. Appellant testified regarding his daily activities including
wood carving in bed.
By decision dated January 24, 2014, the hearing representative affirmed OWCP’s
April 22, 2013 decision finding that Dr. Sabin’s report was entitled to the weight of the medical
evidence. She found that Dr. Sabin’s report established that appellant’s ongoing symptoms were
due to his preexisting back condition rather than to the accepted employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.5 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.6 To terminate

4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

Furman G. Peake, 41 ECAB 361, 364 (1990).

4

authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.7
A physician selected by OWCP to serve as an impartial medical examiner should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the referee designed to provide
adequate safeguards against any possible appearance that the selected physician’s opinion was
biased or prejudiced. The procedures contemplate that the referee physician will be selected on a
strict rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and OWCP.8 The Board has placed great importance on the appearance as
well as the fact of impartiality, and only if the selection procedures which were designed to
achieve this result were scrupulously followed may the selected physician carry the special
weight accorded to a referee specialist.9
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.10
ANALYSIS
The Board has previously found that OWCP had not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits and remanded for further development
of the medical evidence, including referral to an impartial medical examiner.
On appeal and before OWCP, appellant’s counsel argued that Dr. Sabin was not properly
selected to serve as the impartial medical examiner. OWCP selected him as the impartial
medical examiner on December 1, 2010 through the completion of a ME023 form. In response
to counsel’s request for additional information regarding the selection of Dr. Sabin, OWCP
provided screen shots with a bypass history demonstrating that two physicians were bypassed
due to their specialties with “Code S.” OWCP’s procedure manual provides that Code S
indicates an improper subspecialty.11 This code is used if the case requires a different
subspecialty, or if the physician does not evaluate the specific body part or extremity.12 The
7

Id.

8

Raymond J. Brown, 52 ECAB 192 (2001).

9

See L.W., 59 ECAB 471 (2008); J.L., Docket No. 11-164 (October 26, 2011) (finding that an ME023 form alone
without screen shots was not sufficient to substantiate the proper selection of the impartial medical specialist). N.M.,
Docket No. 10-978 (issued November 9, 2010) (ME023 form and screen shoots are not sufficient when the reasons
for the bypass are not clear).
10

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.6
(July 2011; May 2013).
12

Id.

5

procedure manual provides the example of a physician who will only perform examinations for
back conditions but the claimant has an upper extremity injury.13 In this case, OWCP explained
that two physicians were bypassed because they are hand specialists and appellant’s claim
pertains to a back condition. The Board finds that there is sufficient evidence in this case to
document that Dr. Sabin was selected through the appropriate rotational system to ensure against
bias and prejudice as the record contains a completed ME023 form as well as screen shots
providing appropriate reasons for bypassing other physicians.
The Board further finds that Dr. Sabin’s reports are sufficiently detailed and wellreasoned to constitute the weight of the medical opinion evidence and meet OWCP’s burden of
proof to terminate appellant’s wage-loss and medical benefits. OWCP provided Dr. Sabin with a
detailed statement of accepted facts and a list of specific questions. In his January 14, 2011
report, Dr. Sabin provided a detailed review of the factual and medical evidence provided him
and noted that he had not received the records from appellant’s medical treatment in 2004. He
listed his findings on physical examination including normal gait and normal sensation to light
touch in all extremities. Dr. Sabin concluded that the record and examination before him
supplied objective evidence for a temporary aggravation as there were no imaging studies or
physical examination changes to establish a permanent aggravation. He explained that there was
no medical reason to have a solid fusion from L4 to S1 and then to develop a permanent
aggravation in this area. Dr. Sabin stated that if appellant received injections in a mobile
segment proximal to his L4-S1 fusions which provided him pain relief in 2004, then this would
be supportive of a permanent aggravation, but if there was no evidence of a mobile segment
above his solid fusion, then appellant’s finding supported only a temporary aggravation.
On May 10, 2011 OWCP provided Dr. Sabin with appellant’s treatment records from
2004 which were previously missing from the record as well as an addendum to the statement of
accepted facts. In his May 17, 2011 report, Dr. Sabin reviewed the additional medical evidence
and stated that appellant had adequate investigation into his motion segments above his solid L4
to S1 fusion and that this investigation did not define a pain generator. He found that appellant’s
medical records did not establish an anatomic or physiologic pain generator proximal to the area
of his fusion and concluded that there was no objective evidence for any permanent aggravation
of his preexisting lumbar condition due to the employment incident. Dr. Sabin found that
appellant had chronic pain syndrome related to his preexisting conditions and that he
experienced no residuals of the temporary aggravation due to descending the stairs at work. He
determined that appellant’s temporary aggravation and resultant total disability would have
ceased two weeks after March 11, 2004.
Dr. Sabin provided an extensive review of appellant’s medical records including, the
additional information regarding appellant’s treatment in 2004. He explained that appellant
could not have sustained a permanent aggravation of the portion of his lumbar spine that was
solidly fused. Dr. Sabin stated that the medical records did not establish a pain generator from a
spine segment proximal to his fusion. As appellant’s employment incident did not result in an
identifiable change to the spinal segments around his fusion, Dr. Sabin concluded that
appellant’s employment injury was temporary rather than permanent.
13

Id.

6

Following Dr. Sabin’s report, appellant submitted additional medical evidence including
treatment notes from Dr. Anderson-Oeser and a report from Dr. Ryan. Dr. Anderson-Oeser
provided facet injections, but did not offer an opinion as to whether these were related to
appellant’s underlying condition or his accepted employment injury. These notes are not
sufficient to overcome the weight accorded Dr. Sabin as the impartial medical examiner or to
create a conflict with his report.
On September 12, 2011 Dr. Ryan stated that appellant had three areas of pain, above the
area of the fusion, left of the fusion mass at L5, and pain below the level of the fusion. He
concluded that it was unclear if appellant’s employment-related aggravation was permanent
given his positive response to facet injections. Dr. Ryan was one of the physicians who created
the original conflict resolved by Dr. Sabin. This report does not clearly support that appellant
has a permanent aggravation as a result of his accepted employment injury and does not establish
that his temporary aggravation is ongoing. Without further explanation of his position,
Dr. Ryan’s report is not sufficient to require further development on the part of OWCP or to
create a new conflict with Dr. Sabin’s well-reasoned report.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
and medical benefits effective April 22, 2013.

7

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 19-0334
Issued: August 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 30, 2018 appellant filed a timely appeal from a November 14, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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
Appellant also filed a timely request for oral argument. By order dated March 13, 2019, the Board exercised its
discretion and denied his request as would further delay issuance of a Board decision and not serve a useful purpose.
Order Denying Request for Oral Argument, Docket No. 19-0334 (issued March 13, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 14, 2018 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 OWCP has established that appellant received an overpayment
of compensation in the amount of $69,177.66 because he concurrently received Social Security
Administration (SSA) retirement benefits and FECA benefits for the period September 1, 2010
through April 28, 2018 without proper offset; (2) whether OWCP has established that appellant
was at fault in the creation of the overpayment thereby precluding waiver of recovery of the
overpayment; and (3) whether OWCP has properly required recovery of the overpayment by
deducting $500.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught as he rose from his chair while in the performance of duty. He stopped work on
August 29, 2001. OWCP accepted the claim for right knee strain and right knee torn medial
meniscus. Appellant underwent authorized right knee arthroscopy on February 11, 2002. OWCP
paid him wage-loss compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it must deduct at least part of his SSA retirement
benefit to which he would be entitled based on age, explaining that a portion of a FERS benefit
was included in SSA retirement benefits. Appellant was therefore advised to notify OWCP
immediately after filing for or receiving SSA retirement benefits. In a March 24, 2009 letter, the
employing establishment noted that his SSA retirement age was 64 and that FECA benefits must
by offset for FERS employees receiving SSA benefits. It advised appellant that SSA would
calculate the offset using only the contributions made to SSA while he was employed by the federal
government. On March 31, 2009 appellant indicated by checkmark that he did not know if his
SSA benefits had been calculated using his federal service earnings.
On EN1032 forms signed by appellant on December 24, 2010, September 16, 2011,
September 28, 2012, October 5, 2013, September 17, 2014, September 19, 2015, September 26,
2016, and September 27, 2017, he indicated that he was not receiving SSA benefits as part of an
annuity for federal service.4 On the September 27, 2017 form he also indicated that he was
receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a FERS/SSA dual benefits calculation form to
OWCP. It noted that no action was required for the period August 2002 to August 2010 as
disability was involved, but that appellant began receiving retirement benefits effective
September 2010. The form indicated that he had received SSA retirement benefits in
September 2010 when his rate with FERS was $1,928.80 and without FERS was $1,222.00; that
beginning in December 2011 his SSA rate with FERS was $1,998.20 and without FERS was
The EN1032 forms signed by appellant provided: “Report any benefits received from the SSA which you receive
as part of an annuity under the FERS. DO NOT report any benefits received from the SSA on account of employment
in the private sector.” (Emphasis in the original.)
4

2

$1,265.90; that beginning in December 2012 his SSA rate with FERS was $2,032.10 and without
FERS was $1,287.40; that beginning in December 2013 his SSA rate with FERS was $2,062.50
and without FERS was $1,306.70; that beginning in December 2014 his SSA rate with FERS was
$2,097.50 and without FERS was $1,328.90; that beginning in December 2015 his SSA rate with
FERS was $2,097.50 and without FERS was $1,328.90; that beginning in December 2016 his SSA
rate with FERS was $2,103.70 and without FERS was $1,332.80; and that beginning in
December 2017 his SSA rate with FERS was $2,145.70 and without FERS was $1,359.40.
In a FERS offset calculation form dated May 21, 2018, OWCP documented its calculation
of the total overpayment in the amount of $69,177.66 for the period September 1, 2010 until
April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working in the Federal Government,
and this portion of his SSA benefit was a prohibited dual benefit. OWCP found him at fault in the
creation of the overpayment as he had not reported receipt of SSA retirement benefits on his
EN1032 forms. It provided an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20) for appellant’s completion. OWCP informed him of the actions
he could take and allotted 30 days for him to respond.
On a July 2, 2018 overpayment action request form, appellant requested a prerecoupment
hearing before a representative of OWCP’s Branch of Hearings and Review. He disagreed with
OWCP’s finding regarding the fact and amount of overpayment, and requested waiver of recovery
of the overpayment. Appellant asserted that OWCP was aware that he was on SSA disability when
his claim was first accepted.
On a Form OWCP-20 dated October 10, 2018, appellant noted monthly income of
$1,542.48 from SSA, $136.42 from other benefits starting in August 2018, and $2,634.00 in FECA
benefits, for a total monthly income of $4,312.22, and monthly expenses of $3,547.61, with assets
of $795.00. He attached financial documentation to substantiate his expenses.
A telephonic hearing was held on October 10, 2018.
On his November 8, 2018 EN1032 form, appellant indicated that he was receiving SSA
benefits as part of an annuity for federal service and listed the monthly amount.
By decision dated November 14, 2018, OWCP finalized its preliminary determination,
finding that an overpayment of compensation in the amount of $69,177.66 occurred because
appellant received FECA benefits and benefits from SSA without the appropriate offset.5 It further
found that he was at fault in the creation of the overpayment because he failed to report his SSA

5
The hearing representative incorrectly noted the period of the overpayment as from September 1, 2010 through
December 1, 2017. On the FERS offset calculation form, OWCP noted April 28, 2018 as the overpayment end date.

3

retirement benefits. OWCP required recovery of the overpayment by deducting $500.00 every 28
days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.8 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP has established that appellant received an overpayment of
compensation in the amount of $69,177.66.
In its November 14, 2018 decision, OWCP found that an overpayment of compensation
had been created for the period September 1, 2010 through April 28, 2018. The overpayment was
based on evidence received from SSA with respect to benefits paid to appellant. A claimant cannot
receive both compensation for wage-loss and SSA retirement benefits attributable to federal
service for the same period.10 The information provided by SSA indicated that appellant received
SSA age-related retirement benefits that were attributable to federal service for the period
September 1, 2010 through April 28, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of SSA age-related retirement benefits that were attributable to federal
service. The SSA provided the SSA rate with FERS, and without FERS, for specific periods
commencing September 1, 2010 through April 28, 2018. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided.

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

9

FECA Bulletin No. 97-09 (February 3, 1997).

10

Supra notes 8 and 9; see also M.S., Docket No. 18-0740 (issued February 4, 2019); E.K, supra note 8.

4

The Board therefore finds that an overpayment of compensation in the amount of
$69,177.66 was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or be against equity and good
conscience.12 No waiver of payment is possible if appellant is at fault in helping to create the
overpayment.13
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment of compensation 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 he or she receives from OWCP 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 in creating an overpayment:
“Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“Failed to provide information which he or she knew or should have known
to be material; or
“Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”14
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines 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
he or she is being overpaid.15
When a claimant receives benefits from the SSA as part of an annuity under FERS
concurrently with disability/wage-loss compensation, the claimant should be found without fault

11

See E.S., Docket No. 18-1293 (issued January 28, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

12

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

13

J.B., Docket No. 19-1244 (issued December 20, 2019); Robert W. O Brien, 36 ECAB 541, 547 (1985).

14

20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also id. at § 10.430.

15
Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Determinations in an Overpayment, Chapter 6.300.4(d) (September 2018).

5

unless there is evidence on file that the claimant was aware that the receipt of full SSA benefits
concurrent with disability/wage-loss compensation was prohibited.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly found appellant at fault in the creation of the
overpayment for the period September 1, 2010 through April 28, 2018.
The Federal (FECA) Procedure Manual identifies that, regarding an SSA dual benefits
scenario, where the claimant receives SSA benefits as part of an annuity under FECA, which
results in an overpayment, the claimant should be found not at fault unless there is evidence on file
that the claimant was aware that the receipt of full SSA benefits concurrent with disability/wageloss compensation was prohibited.16 Because of the complex nature of SSA benefits
administration, appellant could not have been expected to be able to calculate the amount of an
offset. Therefore, he could not reasonably have been aware during the relevant period that his
concurrent receipt of SSA benefits constituted an actual prohibited dual benefit.17
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines 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
he or she is being overpaid.18 The Board finds that appellant was without other options to avoid a
potential FECA overpayment. Therefore, based on the circumstances described, the Board finds
that OWCP has not met its burden of proof to establish that he was at fault in the creation of the
overpayment for the period September 1, 2010 through April 28, 2018.19
As appellant was not at fault in the creation of the overpayment for the period September 1,
2010 through April 28, 2018, the case will be remanded to OWCP to consider the issue of waiver
of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$69,177.66 because he concurrently received SSA benefits and FECA compensation for the period
September 1, 2010 through April 28, 2018 without proper offset. The Board further finds that he

16

Id. at Chapter 6.300.4g(4) (September 2018).

17

See J.B., Docket No. 19-1244; G.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed
OWCP’s finding that, due to the complexity of SSA age-related retirement benefits administration, appellant was not
with fault in the creation of the overpayment because he could not have reasonably known that an improper payment
had occurred. OWCP determined that appellant was not expected to be able to calculate the amount of the offset prior
to receipt of information for the SSA).
18

Id. at § 10.433(b); see also supra note 15 at Chapter 6.300.4(d) (September 2018).

19

See E.H., Docket No. 18-1009 (issued January 29, 2019).

6

was without fault in the creation of the overpayment for the period September 1, 2010 through
April 28, 2018.20
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 7, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

In light of the Board’s disposition regarding Issue 2, Issue 3 is rendered moot.

7


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

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

Docket No. 18-1720
Issued: May 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2018 appellant, through counsel, filed a timely appeal from a June 27,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed since the last merit decision, dated July 20, 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 to review 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
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 23, 2015 appellant, then a 37-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that, while in the performance of duty, he developed a left hand and
elbow injury due to repetitive duties which required pinching and grabbing mail. His supervisor
noted on the claim form that he had stopped work on May 30, 2015.
In support of his claim, appellant submitted reports from Dr. Paul K. Won, Board-certified
in family medicine.
By decision dated July 23, 2015, OWCP denied appellant’s claim, finding that he had not
met his burden of proof to establish that the occupational exposure occurred as alleged.
On August 3, 2015 appellant requested reconsideration of OWCP’s decision. In support
of his claim, he submitted a narrative statement describing his occupational duties, as well as
diagnostic reports, and medical reports dated July 14 to September 15, 2015 from Dr. Won.
By decision dated October 1, 2015, OWCP affirmed the July 23, 2015 decision, as
modified. It found that, although appellant had provided sufficient evidence to establish the
alleged factors of his federal employment, the medical evidence of record was insufficient to
establish that his diagnosed condition was causally related to the accepted employment factors.
On November 19, 2015 appellant appealed to the Board. By decision dated April 11, 2016,
the Board affirmed OWCP’s October 1, 2015 decision, finding that appellant had not met his
burden of proof to establish that his left lateral epicondylitis was causally related to the accepted
factors of his federal employment.
On April 10, 2017 appellant, through counsel, requested reconsideration and noted
submission of a March 28, 2017 report not previously considered from Dr. Neil Allen, Boardcertified in internal medicine and neurology.
In a March 28, 2017 medical report, Dr. Allen reported that appellant’s medical records
were reviewed in order to establish whether causal relationship existed between his left elbow
condition and work-related trauma sustained prior to and on April 1, 2015. He described
appellant’s repetitive employment duties as a letter carrier, reviewed diagnostic testing, and
diagnosed left lateral epicondylitis. Dr. Allen discussed tennis elbow research, explaining that the
3

Docket No. 16-0232 (issued April 11, 2016).

2

extensor carpi radialis brevis muscle helps to stabilize the wrist when the elbow was straight, but
becomes weakened from overuse, resulting in microscopic tears in the tendon where it attaches to
the lateral epicondyle. He further reported that extensor carpi radialis brevis muscle was also at
increased risk for damage because of its position, noting that as the elbow bends and straightens,
the muscle rubs against bony bumps which can cause gradual wear and tear over time. Dr. Allen
reported that it was well documented in literature that repetitive activity, speciﬁcally elbow
extension, was the most common cause of lateral epicondylitis. He explained that as a rural letter
carrier, appellant performed repetitive reaching (end range elbow extension) for seven to nine
hours per day in order to complete the casing, sorting, and delivery of mail required by his position.
Dr. Allen noted that this repetitive activity precipitated a symptomatic lateral epicondylitis, as
documented on a September 3, 2015 magnetic resonance imaging (MRI) scan, which was
supported by the accepted medical facts described in the literature.
By decision dated July 20, 2017, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision, finding that the new evidence submitted was of
insufficient probative value to modify the April 11, 2016 decision. It found Dr. Allen’s report was
of no probative value because it was not based on examination. OWCP further found that the
evidence was insufficient to modify the prior decision because Dr. Allen was not the physician of
record and had not based his opinion on examination.
By letter dated March 21, 2018, appellant, through counsel, requested reconsideration of
the July 20, 2017 decision. Counsel argued that the decision was not based on any legal or
statutory authority. He asserted that the claims examiner incorrectly found that Dr. Allen’s report
was of no probative value because he did not examine appellant. Counsel noted that OWCP district
medical adviser’s (DMA) routinely provided opinions without examination.
By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review. It found that counsel failed to establish that OWCP
erroneously applied or interpreted a point of law. OWCP noted that counsel failed to cite specific
OWCP regulations in regard to physical examinations to establish that the July 20, 2017 decision
was improper.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on application
by a claimant.4 One such limitation is that the request for reconsideration must be received by
OWCP within one year of the date of the decision for which review is sought.5
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 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 Federal
Employees’ Compensation System (iFECS). Chapter 2.1602.4b.

3

To require OWCP to reopen a timely application for merit review under section 8128(a) of
FECA, OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.8 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.9
6

ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).10
The underlying issue in this case was whether appellant’s left lateral epicondylitis was
causally related to factors of his federal employment. In its July 20, 2017 decision, OWCP denied
modification of the prior decision, finding that Dr. Allen’s report was of no probative value
because it was not based on actual examination and because he was not the physician of record.
On reconsideration, counsel argued that there was no legal or statutory authority to support
OWCP’s finding that Dr. Allen’s report was of no probative value because he did not examine
appellant. He asserted that OWCP’s procedures routinely allowed OWCP’s district medical
advisers to offer opinions without physical examination.
The Board finds that counsel’s argument on reconsideration is new and relevant to the
underlying issue of causal relationship and therefore the refusal of OWCP to reopen appellant’s
case for further consideration of the merits of his claim constituted an abuse of discretion.11
Thus, the Board will set aside OWCP’s June 27, 2018 decision and remand the case for
merit review of appellant’s claim. After such further development as is deemed necessary, OWCP
shall issue an appropriate merit decision.

6

Supra note 4.

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

10

C.F., Docket No. 18-0583 (issued October 16, 2018).

11

L.N., Docket No. 12-1326 (issued November 21, 2012); see also Federal (FECA) Procedure Manual, supra note
5 at Chapter 2.810.6 (September 2010) (to obtain merit review, a claimant need not submit all evidence that may be
necessary to discharge his burden of proof); Helen E. Tschantz, 39 ECAB 1382 (1988); V.B., Docket No. 12-1057
(issued October 23, 2012).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this opinion.
Issued: May 7, 2019
Washington, DC

Christopher J. Godfrey, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Chula Vista, CA, Employer
__________________________________________

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

Docket No. 12-84
Issued: May 15, 2012

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 October 17, 2011 appellant filed a timely appeal from a September 19, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs’ (OWCP) which denied his
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. The Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board’s prior decision issued on July 22, 2011, affirming OWCP’s July 22 and September 2, 2010
decisions, was the last merit decision in this case.

FACTUAL HISTORY
This is the second appeal before the Board. Appellant, then a 59-year-old program
manager/customs and border protection officer, alleged chest pains, shortness of breath and
severe fatigue while running uphill during a training exercise on June 30, 2009. He submitted
reports from Dr. Weilee E. Yeh, a Board-certified family practitioner. The reports, however, did
not contain a diagnosis of the claimed condition or a rationalized, medical opinion attributing the
alleged injury to the June 30, 2009 work incident. By decision dated January 22, 2010, OWCP
denied appellant’s claim, finding that he did not submit medical evidence sufficient to establish
that he sustained an injury in the performance of duty. By decision dated July 22, 2010, an
OWCP hearing representative affirmed the January 22, 2010 decision. In a nonmerit decision
dated September 2, 2010, OWCP denied reconsideration. By decision dated July 22, 2011,3 the
Board affirmed OWCP’s July 22 and September 2, 2010 decisions. The facts of this case as set
forth in the Board’s July 22, 2011 decision are incorporated herein by reference.
By letter dated August 4, 2011, appellant requested reconsideration.
In an August 8, 2011 report, Dr. Yeh related that on June 30, 2009 appellant was
commanded to run up a hill without warning. Due to his advanced age and physical condition,
appellant developed dizziness and chest pain, which he continued to experience after he was
admitted to a local emergency room at Hemet Valley Medical Center. After being evaluated by
an emergency room physician, he was admitted to the hospital on July 7, 2009, where Dr. Yeh
examined him. Appellant also underwent a cardiac examination. He submitted the results of an
echocardiogram, nuclear medicine tests, a radiology examination and a chest workup which he
underwent at the hospital on July 7 and 8, 2009.
On August 10, 2011 OWCP received a report dated July 22, 2009 from Dr. Betty GrantAnderson, Board-certified in internal medicine, who examined appellant at the hospital on
July 8, 2009 after he became extremely faint and nearly passed out while running the obstacle
course at work. Dr. Grant-Anderson noted that he had experienced severe chest pain and was
admitted to the emergency room for further evaluation and management. She advised that
appellant had palpitations and questionable arrhythmias. Dr. Grant-Anderson diagnosed Type 2
diabetes mellitus and hypertension, with chest pain, questionable coronary artery disease or
unstable angina versus musculoskeletal pain.
By decision dated September 19, 2011, OWCP denied appellant’s request for
reconsideration. It found that he did not timely request reconsideration and failed to submit
factual or medical evidence sufficient to establish clear evidence of error.

3

Docket No. 10-2323 (issued July 22, 2011).

2

LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle an employee to a review of an OWCP decision
as a matter of right.5 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may—
(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).6 As one such limitation, OWCP has stated that
it will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.7 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).8
The one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board and any merit decision following
action by the Board, but does not include prerecoupment hearing decisions.9
ANALYSIS
OWCP improperly determined that appellant failed to file a timely application for review.
It found that the most recent merit decision in this case was issued on July 22, 2010, therefore, as
appellant requested reconsideration on August 4, 2011, his request for reconsideration was

4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
6

Thus, although it is a matter of discretion on the part of OWCP of whether to review an award for or against
payment of compensation, it has stated that a claimant may obtain review of the merits of a claim by (1) showing
that OWCP erroneously applied or interpreted a point of law, or (2) advances a relevant legal argument not
previously considered by OWCP, or (3) constituting relevant and pertinent new evidence not previously considered
by OWCP. See 20 C.F.R. § 10.606(b).
7

Id. at § 10.607(b).

8

See cases cited supra note 2.

9

See D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997).

3

untimely filed. The Board finds that appellant’s August 4, 2011 request for reconsideration was
timely filed.
The Board conducted a merit review of this case in the decision dated July 22, 2011. The
Board’s decision constitutes the most recent merit review of this case. Appellant therefore had
one year from July 22, 2011 to request reconsideration. His request for reconsideration dated
August 4, 2011 was therefore timely filed.
With his timely request for reconsideration, appellant submitted reports from Dr. Yeh and
Dr. Grant-Anderson. OWCP evaluated these reports under the clear evidence of error standard,
which is an improper standard of review for timely requests for reconsideration. This case will
be remanded to OWCP for further review and issuance of an appropriate decision.
CONCLUSION
The Board finds that appellant did submit a timely request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 19, 2011 is set aside and the case is remanded to
OWCP for further proceedings consistent with this opinion.
Issued: May 15, 2012
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________
Appearances:
Russell D. Christian, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1464
Issued: January 30, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 27, 2012 appellant, through his attorney, filed a timely appeal from the April 16,
2012 decision of the Office of Workers’ Compensation Programs’ (OWCP), which found that his
reconsideration request was untimely and did not present clear evidence of error. The appeal
was docketed as number 12-1464.
In this case, in a decision dated February 9, 2011, OWCP denied appellant’s claim for a
traumatic injury. In an appeal request form dated and postmarked February 9, 2012, appellant’s
representative requested reconsideration and submitted additional evidence. In an April 16, 2012
decision, OWCP denied appellant’s request for reconsideration finding that it was not timely
filed as it was not received until February 10, 2012 and that it also failed to present clear
evidence of error.
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was timely. Section 10.607(a) of the implementing regulations provide that an
application for reconsideration must be received within one year of the date of OWCP’s decision
for which review is sought.1 OWCP procedures, however, provide that, for decisions issued on
1

20 C.F.R. § 10.607(a).

or after June 1, 1987 through August 28, 2011, the one-year period begins on the date of the
original decision and the application for reconsideration must be mailed to OWCP within one
year of the date of OWCP’s decision for which review is sought.2 The Board notes that the last
merit decision was dated February 9, 2011 and appellant’s request for reconsideration was
postmarked on February 9, 2012, the request was made within one year from the February 9,
2011 merit decision.3 Because appellant filed a timely reconsideration request, the case will be
remanded to OWCP for application of the standard for reviewing timely requests for
reconsideration.4 The “clear evidence of error” standard utilized by OWCP in its April 16, 2012
decision is appropriate only for untimely reconsideration requests. After such further
development as OWCP deems necessary, it should issue an appropriate decision on the timely
reconsideration request.
IT IS HEREBY ORDERED THAT the April 16, 2012 decision is set aside and the case
remanded for further action consistent with this order of the Board.
Issued: January 30, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) (October 2011).
The Board has held that the envelope bearing the postmark is prima facie evidence of the date of mailing. See
Wanda E. Maisonet, 48 ECAB 212 (1996).
3

In computing the time for requesting reconsideration, the date of the event from which the designated time
period begins to run shall not be included when computing the time period. However, the last day of the period shall
be included unless it is a Saturday, a Sunday or a legal holiday. Debra McDavid, 57 ECAB 149 (2005).
4

See 20 C.F.R. § 10.606(b)(3).

2