United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laguna Hills, CA, Employer
__________________________________________

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

Docket No. 16-1490
Issued: May 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 13, 2016 appellant filed a timely appeal from a May 12, 2016 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.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,231.50 for the period April 18 through May 31, 2014; and (2) whether appellant
was at fault in the creation of the overpayment such that it is not subject to waiver of recovery.
1
2

5 U.S.C. § 8101 et seq.

Together with his appeal request appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated January 17, 2017, the Board, after exercising its discretion, denied the request as
appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as
submitted on the record.
Order Denying Request for Oral Argument, Docket No. 16-1490 (issued
January 17, 2017).

FACTUAL HISTORY
On November 29, 2012 appellant, then a 51-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he developed left plantar fasciitis and
neuroma due to walking and standing in the performance of his job duties. He stopped work on
the advice of his treating physician. Appellant was returned to light-duty work on
December 14, 2012. OWCP accepted his claim on February 12, 2013 for plantar fibromatosis
and lesion of the plantar nerve. Appellant filed claims for compensation (Form CA-7) for
intermittent periods of disability because work was not available for partial days. OWCP
authorized compensation for intermittent periods through March 28, 2013. Appellant completed
a direct deposit sign-up form on April 3, 2013.
Appellant underwent surgical plantar fascial release and fasciectomy of the left foot on
April 12, 2013 and filed CA-7 forms for intermittent periods. OWCP authorized partial,
intermittent compensation benefits and entered appellant on the periodic rolls on
February 9, 2014. Appellant received a payment through direct deposit on March 8, 2014 in the
gross amount of $2,897.84.
The employing establishment reported that appellant had returned to work on May 3,
2014 working six to 6.5 hours a day. Appellant later accepted a position on May 13, 2014
working six hours a day.
Through a letter dated May 14, 2015, OWCP requested that the employing establishment
provide the date that appellant returned to work in any capacity in May 2014. It further
requested reports of appellant’s work hours following his return to work in 2014. The employing
establishment via telephone reported that appellant worked six hours a day from May 2
through 15, 2014. Appellant then utilized sick leave from May 16 through 31, 2015. On
November 13, 2015 OWCP requested additional information from the employing establishment
regarding the date appellant returned to work and the number of hours he worked daily through
May 31, 2014.
The employing establishment provided a daily work and leave breakdown which
indicated that appellant returned to full-duty work on April 18, 2014 and worked eight hours on
April 18, 19, 21, and 22, 2014. On April 24, 25, 26, 28, 29, and 30, 2014 appellant worked full
time except for 1.29 hours of leave without pay (LWOP). He worked approximately six hours a
day on May 2, 3, 5, 6, 7, 8, 12, 13, and 14, 2014 and used 20.58 hours of LWOP. On May 15,
2014 appellant worked 4.99 hours and used 3.01 hours of LWOP. He utilized eight hours of sick
leave on May 16, 17, 20, and 21, 2014. Appellant used four hours of annual leave and four hours
of sick leave on May 22, 2014. He then used eight hours of annual leave on May 23, 24, and 28.
2014. Appellant used six hours of annual leave on May 29, 2014. He used four hours of sick
leave on May 31, 2014. Appellant did not request LWOP from May 16 through 31, 2014.
OWCP issued a preliminary determination on March 17, 2016 that appellant had received
an overpayment of compensation in the amount of $3,231.50 because he returned to work on

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April 18, 2014 working intermittently through May 15, 20143 and continued to receive
compensation benefits for total disability through May 31, 2014. It found that he received
compensation benefits in the amount of $2,228.384 for the period April 6, through May 3, 2014.
OWCP calculated that $2,228.38 divided by 28 (the number of days in the pay period) multiplied
by 16 (the number of days appellant worked during the pay period) = $1,273.36. It further noted
that from May 4 through 31, 2014 he was paid $2,323.38. OWCP added the sums of $1,273.36
and $2,323.38 to reach $3,596.74. It noted that from April 18 through May 31, 2014 appellant
was charged LWOP for 19.87 hours of work.5 OWCP subtracted this amount of $365.24 from
the total compensation paid, $3,596.74, to reach a total overpayment of compensation in the
amount of $3,231.50.
OWCP made a preliminary finding that appellant was at fault in the creation of the
overpayment because he was aware or should have reasonably been aware that he was not
entitled to receive wage-loss benefits after returning to full-time work. It noted that its
March 21, 2014 letter advised him that he was responsible to inform OWCP upon return to work
and to return all payments received for periods after his return to work. OWCP provided
appellant with an overpayment recovery questionnaire (OWCP-2) as well as his options for
review and afforded him 30 days to respond.
On April 21, 2016 appellant disagreed with the amount of the overpayment, and
requested waiver of recovery. He alleged that he was entitled to additional compensation
benefits for two hours a day from July through December 15, 2013.
By decision dated May 12, 2016, OWCP finalized the overpayment of compensation in
the amount of $3,231.50 for the period of April 18 through May 31, 2014. It determined that
appellant was at fault in the creation of the overpayment as he accepted compensation payments
which he knew or should have known were incorrect. OWCP requested payment of the full
amount within 30 days.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 Monetary compensation for total or partial
disability due to an employment injury is paid as a percentage of pay,7 meaning pay at the time
of injury or pay at the time disability begins or pay at the time compensable disability recurs if

3

After May 15, 2014 appellant used sick and annual leave intermittently through May 31, 2014 but did not return
to work or use additional LWOP.
4

OWCP’s records show appellant was actually paid compensation benefits in the amount of $2,323.28 for the
period April 6 through May 3, 2014.
5

The Board notes that appellant used 21.87 hours of LWOP from April 25 through May 15, 2014.

6

5 U.S.C. § 8102(a).

7

Id. at §§ 8105, 8106.

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the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.8
A claimant is not entitled to receive temporary total disability benefits and actual
earnings for the same time period.9 An overpayment of compensation occurs when a claimant
returns to work and continues to receive compensation.10
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.11
ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation was created.
OWCP accepted appellant’s claim and paid wage-loss compensation, placing him on the
periodic compensation rolls. The record establishes that appellant returned to full-time work on
April 18, 2014 and worked eight hours on April 18, 19, 21, and 22, 2014. Appellant then worked
less than eight hours a day from April 24 through May 15, 2014. This resulted in an
overpayment of compensation.12 Appellant was not entitled to receive temporary total disability
benefits and actual earnings for the same time period.13
The Board, however, further finds that this case is not in posture for decision regarding
the amount of the overpayment.
In the May 12, 2016 decision, OWCP found that appellant received an overpayment of
compensation in the amount of $3,231.50 for the period April 18 through May 31, 2014 based on
his return to work and his continued receipt of compensation benefits for total disability. It
determined the number of hours of LWOP that appellant was charged for this period and
determined his entitlement to compensation for these hours. OWCP then credited LWOP from
the total amount of wage-loss compensation he received. However, the Board notes that the
employing establishment’s leave records show that appellant had been charged 21.87 hours of
leave without pay from April 25 through May 15, 2014 rather than the 19.87 hours of leave
without pay found by OWCP. Because OWCP incorrectly calculated the amount of the
overpayment by two hours and had also miscalculated the amount of wages appellant had been
8

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

9

L.S., 59 ECAB 350, 352-53 (2008).

10

Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2a (May 2004).
11

5 U.S.C. § 8129(a).

12

See R.G., Docket No. 16-1129 (issued December 27, 2016).

13

Supra note 9.

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paid,14 the Board will set aside OWCP’s May 12, 2016 decision and remand the case for further
development. It should recalculate the overpayment appellant received for the period April 18
through May 31, 2014. Following such further development as it deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly found a fact of overpayment of compensation, but
found that the case was not in posture for decision regarding the amount of the overpayment for
the period April 18 through May 31, 2016.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part as to fact of overpayment and set aside and
the case remanded for further proceedings consistent with this decision of the Board.
Issued: May 26, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

Supra note 4.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1841
Issued: March 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 9, 207 with respect to an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$43,772.62 was created; (2) whether the Office properly found appellant at fault in creating the
overpayment; and (3) whether the Office properly determined the overpayment should be
recovered by deducting $200.00 from her continuing compensation payments.
FACTUAL HISTORY
On March 27, 2000 appellant filed an occupational claim alleging that she sustained an
emotional condition as a result of her work as a labor relations specialist. The Office accepted
the claim for recurrent major depressive disorder and bipolar disorder. Appellant had been

receiving retirement benefits through the Office of Personnel Management (OPM). In
August 2003, she elected to receive benefits under the Federal Employees’ Compensation Act
retroactive to March 10, 2001.
According to a letter dated September 25, 2003 from OPM, appellant had been paid
$104,210.70 from March 10, 2001 to September 1, 2003. The record indicates that the Office
issued appellant a compensation payment dated October 17, 2003 for $54,385.76. The payment
was sent to appellant and stated that it represented compensation from March 10, 2001 to
October 4, 2003. The record contains a copy of the reverse of the payment indicating that it was
deposited on October 22, 2003, with an additional stamp “FRB Atlanta” dated October 24, 2003.
By letter dated October 28, 2003, the Office advised appellant that the payment had been
made in error. The Office stated that she was actually entitled to only $10,331.30 in
compensation benefits. The letter also referenced an October 28, 2003 telephone call to
appellant.
In a letter dated July 19, 2006, the Office advised appellant of a preliminary
determination that an overpayment of $43,772.62 was created. The Office stated that she was
entitled to $10,331.30, less health benefits and life insurance premiums totaling $281.04.
According to the Office, appellant was also found to be at fault, as she was advised on
October 28, 2003 by telephone conversation and letter that an overpayment existed. In a
worksheet dated July 6, 2006, the Office calculated that appellant should have been paid
$114,542.00 in compensation for the period March 10, 2001 to October 4, 2003. The
compensation rate was for a claimant with no dependents.
Appellant requested a hearing on the overpayment issues and submitted an overpayment
recovery questionnaire (OWCP-20). A hearing was held on February 14, 2007. Appellant
indicated that she had received a second payment of $54,385.73 dated October 24, 2003, but had
not deposited this payment. In addition, she argued that the compensation paid from March 10,
2001 did not reflect that she had a dependant daughter.
By decision dated April 9, 2007, the hearing representative finalized the preliminary
determinations that an overpayment of $43,772.62 was created and appellant was not entitled to
waiver as she was at fault in creating the overpayment. The hearing representative determined
that appellant had deposited the October 17, 2003 payment on October 24, 2003. According to
the hearing representative, the record showed that appellant “was contacted via telephone on
October 18, 2003 and advised of the overpayment.” The hearing representative determined that
appellant should repay the overpayment by deducting $200.00 from continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
A beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity. The beneficiary must elect the benefit that he or she wishes to
receive, and the election, once made, is revocable.1
1

Sharon Handy, 57 ECAB

(Docket No. 06-51, issued February 17, 2006).

2

ANALYSIS -- ISSUE 1
The evidence establishes that an overpayment of compensation was created in this case.
Appellant had been receiving OPM retirement benefits but, in August 2003, elected to receive
FECA benefits as of March 10, 2001. OPM indicated that appellant received retirement benefits
during the period March 10, 2001 to September 1, 2003 totaling $104,210.70. The Office
determined that, for the period March 10, 2001 to October 4, 2003, appellant should have
received $114,542.00, less $281.84 in health benefit and life insurance premiums. She would be
entitled to the difference between the amount she should have received in compensation benefits
and the amount she received from OPM. Even though there appears to be errors in calculating
the amount, as noted below, the evidence of record establishes the payment of $54,385.73
exceeded the amount to which she was entitled and an overpayment was created.
With respect to the amount, the record requires further development. The Board notes
that OPM stated that its payments stopped as of September 1, 2003. It is not entirely clear why
the Office calculations use the date October 4, 2003, although this could represent the end of a
compensation period cycle. The Board notes that the Office appeared to find that appellant was
entitled to $10,331.30 (the difference between $114,542.00 and $104,210.70) “less” the
premiums of $281.84. If appellant was entitled to only $10,049.96, as found by the hearing
representative, then the overpayment would be $44,336.27 (the difference between $54,385.73
and $10,049.96). The Office apparently added the premiums of $281.84, rather than subtracting.
In addition, appellant raised the issue of whether the Office properly calculated the
amount of compensation owed during the overpayment period. The worksheets provided by the
Office indicate the compensation rate was based on a claimant with no dependents. Appellant
contended that she provided information to the Office showing she had a dependent and was
entitled to the augmented rate.2 The hearing representative did not properly address the issue,
noting only that, while it appeared the Office did not use the augmented rate, “any underpayment
due cannot be used to offset this overpayment.” No further explanation was provided. The
amount of the overpayment is properly determined by calculating what appellant should have
been paid in compensation during the overpayment period, subtracting the amount she received
from OPM, and calculating the difference between this amount and the incorrect payment she
received of $54,385.73. If there was an error in determining how much compensation appellant
should have received from March 10, 2001 to September 1, 2003, then the amount of the
overpayment was improperly calculated.
On remand the Office should develop the issues regarding the amount of the
overpayment. The Office should provide a clear explanation as to the period of the overpayment
and the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act3 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
2

See 5 U.S.C. § 8110.

3

5 U.S.C. § 8129.

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when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”4 Waiver of an overpayment is not permitted unless the claimant is “without
fault” in creating the overpayment.5
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
The finding of fault in this case was based on the third standard of accepting a payment
appellant knew or should have known was incorrect. The record shows that the Office issued a
$54,385.76 payment dated October 17, 2003. The reverse of the payment indicated that it was
deposited into appellant’s bank account on October 22, 2003.6 The acceptance of the payment
occurs when the payment is deposited by the claimant.7 The issue then becomes whether
appellant, as of October 22, 2003, knew or should have known the $54,385.73 payment was
incorrect. The preliminary determination of an overpayment stated that appellant should have
known based on an October 28, 2003 telephone conversation and a letter of the same date
advising her that the payment was incorrect. An October 28, 2003 telephone call or letter cannot
establish fault when the payment is deposited on October 22, 2003. As the Board explained in
Michael R. Nixon,8 the Office cannot establish fault with a telephone call or letter advising of an
erroneous payment unless it occurred prior to the acceptance of the payment.
The hearing representative made a finding, without further explanation, that there was an
October 18, 2003 telephone call regarding the October 17, 2003 payment. The hearing
representative stated that appellant confirmed at the hearing that she received a telephone call
from the Office on October 18, 2003. The record contains no evidence supporting this finding.
Appellant indicated at the hearing that she received a telephone call on October 28, 2003. There
is no memorandum of a telephone call dated October 18, 2003. The October 28, 2003 letter
referred only to an October 28, 2003 telephone call. The Board finds no probative evidence that
the Office advised appellant of an erroneous payment prior to acceptance of the payment.
There is no indication in the record that the Office provided any other information
regarding entitlement to compensation prior to acceptance of the October 17, 2003 payment.
The payment indicated that it represented compensation for the period March 10, 2001 to
4

5 U.S.C. § 8129(b).

5

Norman F. Bligh, 41 ECAB 230 (1989).

6

The hearing representative found appellant deposited the payment on October 24, 2003, but this appeared to
represent the date it was processed by the federal regional bank in Atlanta.
7

See T.C., 57 ECAB

8

40 ECAB 398 (1988).

(Docket No. 05-249, issued July 24, 2006).

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October 4, 2003. No information was provided on the payment itself that is sufficient to
establish appellant should have known it was incorrect. Appellant was entitled to some
compensation during the period in question, and without any information as to the amount she
was entitled to prior to acceptance of the payment, there is no probative evidence sufficient to
establish that appellant accepted a payment she knew or should have known was incorrect.
The Board accordingly finds that the evidence is not sufficient to support the denial of
waiver on the grounds that appellant was at fault in creating the overpayment. The case will be
remanded for proper consideration for the waiver issue. After such further development as the
Office deems necessary, it should issue an appropriate decision. The Board will not consider the
repayment issue at this time.
CONCLUSION
The evidence indicates that an overpayment of compensation occurred in this case,
although further development is required as to the amount. With respect to fault, the record does
not support the Office’s finding that appellant was at fault, and therefore the case will be
remanded for proper consideration of whether the overpayment should be waived.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2007 is affirmed as to fact of overpayment, set aside and
remanded with respect to amount and waiver.
Issued: March 11, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 09-1
Issued: September 22, 2009

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 September 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 18, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On September 20, 2007 appellant filed an occupational claim (Form CA-2) alleging that
he sustained an emotional condition causally related to his federal employment. He indicated
that he had a prior back injury and had been working as a dispatch clerk. Appellant alleged that
he had been illegally prohibited from working and was subject to discrimination, as documented
by an Equal Employment Opportunity Commission (EEOC) decision.

In a decision dated September 17, 2007, an administrative law judge found that the
employing establishment “failed to reasonably accommodate [appellant’s] back disability and
violated the Rehabilitation Act when he was sent home on June 1, 2005 and [was] told there was
no work for him within his restrictions.” She indicated that appellant was a limited-duty
employee, but even if the employing establishment in good faith considered him a light-duty
employee, he was treated differently than other light-duty employees. The judge concluded that
appellant “has demonstrated that he was discriminated against based on his physical disability
(back injury) and perceived disability (heart condition) in violation of the Rehabilitation Act
when the agency failed to reasonably accommodate his back disability and sent him home,
denied him the opportunity to work and charged him with AWOL [absent without leave] based
on his perceived disability.”
By decision dated January 25, 2008, the Office denied the claim for compensation. It
found that on June 1, 2005 appellant was in a “light-duty” status (nonemployment related) rather
than a “limited-duty” status (employment related), a distinction that was not “effectively brought
forward in the EEOC decision.” The Office found that the employing establishment’s failure to
provide appellant with the dispatch position as of June 2005 was not error or abuse.
Appellant requested a hearing before an Office hearing representative, which was held on
May 28, 2008. By decision dated August 18, 2008, the hearing representative affirmed the
January 25, 2008 decision. She found that the EEOC decision was of diminished probative value
finding that the administrative law judge “was under the impression that [appellant] continued to
have an accepted work-related back claim for which he was entitled to compensation.”
According to the hearing representative, “The judge also appeared to believe that the [employing
establishment] is able to routinely accommodate all other employees seeking accommodation but
treated [appellant] disparately. However, the case record neither confirms that in this case nor is
the employing establishment routinely able to accommodate employees who request such.”
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
1

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

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

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workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.5 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.6 While the findings of other federal agencies are not
dispositive with regard to questions arising under the Act, such evidence may be given weight by
the Office and the Board.7
ANALYSIS
Appellant submitted a September 17, 2007 decision from an administrative law judge in
an EEOC action finding that the employing establishment had violated the Rehabilitation Act, 29
U.S.C. § 791. The judge found that the employing establishment had failed to make reasonable
accommodation for appellant’s disability. The Office found the decision to be of diminished
probative value on the grounds that appellant was not in a limited-duty status for an employment
injury, but in a light-duty status for a nonemployment-related condition.
The Board notes that the administrative law judge explained her conclusion regarding
limited duty based on testimony from the employing establishment In addition, the judge also
clearly found that, even if the employing establishment had in good faith classified appellant as a
light-duty employee, there was still a violation of the Rehabilitation Act. She found that
appellant was treated differently than other light-duty employees.
Moreover, the judge based her decision in part on a finding that the employing
establishment denied appellant the dispatch job on their perception that he was disabled due to a
heart condition, a perception that was not supported by the medical evidence. This finding of
error was not based on a distinction between a limited-duty and a light-duty status.
The Board finds no basis for the conclusion that the September 17, 2007 EEOC decision
is of diminished probative value on the issue of administrative error. The judge provided a
detailed decision that set forth factual findings pertaining to appellant’s allegations, evaluated the
4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

6

Margreate Lublin, 44 ECAB 945, 956 (1993).

7

Pamela D. Casey, 57 ECAB 260, 264 (2005); Michael Deas, 53 ECAB 208, 217 (2001).

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credibility of testimony and evidence presented and made appropriate findings. As noted above,
while her findings are not dispositive under the Federal Employees’ Compensation Act, such
evidence may be given weight by the Office and the Board.
The evidence of record is sufficient to establish error by the employing establishment in
failing to reasonably accommodate appellant under the Rehabilitation Act. Appellant has
established a compensable work factor. The case is remanded for proper consideration of the
medical evidence.8 After such further development as the Office deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Board finds that the evidence establishes a compensable work factor and the case is
remanded to the Office for proper consideration of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 18 and January 25, 2008 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: September 22, 2009
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

8

When the evidence establishes a compensable work factor, the Office must base its decision on an analysis of
the medical evidence. Jeral R. Gray, 57 ECAB 611 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL RAILROAD ADMINISTRATION,
Renton, WA, Employer
__________________________________________

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

Docket No. 19-0208
Issued: June 18, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant, through counsel, filed a timely appeal from an August 21,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted June 14, 2017 employment incident.
FACTUAL HISTORY
On June 16, 2017 appellant, then a 64-year-old track safety inspector, filed a traumatic
injury claim (Form CA-1) alleging that on June 16, 2017 he suffered a left knee injury when he
stepped in a badger hole while in the performance of duty. He did not stop work.
Appellant was initially treated by Ryan Kessel, a certified physician assistant. In a progress
note dated June 16, 2017, Mr. Kessel related that the day before appellant was walking along
railroad tracks at work when he stepped into a badger hole. Examination of appellant’s left knee
showed tenderness in the medial and patellofemoral lines and limited antalgic limp. A June 16,
2017 left knee x-ray showed moderate medial and patellofemoral osteoarthritis. Mr. Kessel
diagnosed left leg injury, including left knee strain, and underlying left severe knee arthritis. He
opined that appellant had an “injury mechanism” that “likely exacerbated a preexisting condition.”
Mr. Kessel also completed an attending physician’s report (Form CA-20) of the same date.
He noted a preexisting condition of left knee osteoarthritis and diagnosed left knee strain.
Mr. Kessel checked a box marked “yes” indicating that appellant’s condition was caused or
aggravated by the employment activity.
In a report dated August 21, 2017, Dr. Wesley Smidt, a Board-certified orthopedic surgeon,
noted appellant’s complaints of marked discomfort and persistent pain since an injury earlier that
year when appellant stepped in a hole at work. He reviewed appellant’s history and noted that xray examination showed advanced degenerative changes of the left knee. Upon examination of
appellant’s left knee, Dr. Smidt observed a marked amount of crepitus with active range of motion
and tenderness in the medial and lateral joint line. He diagnosed advanced left knee degenerative
joint disease. Dr. Smidt indicated that appellant wished to proceed with left total knee arthroplasty
surgery. He reported that the “work-related injury had necessitated the need for the total knee.”
Dr. Smidt noted that prior to the injury appellant had left knee symptoms, but was still able to
perform his regular duties. He reported that it was unlikely that appellant would need a total knee
replacement without his work-related injury. Dr. Smidt completed a work status note indicating
that appellant could return to work without restrictions on that date.
In an August 29, 2017 development letter, OWCP noted that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work and
was therefore administratively approved for payment of a limited amount of medical expenses. It
requested that appellant provide additional factual and medical evidence to establish his claim and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to provide the
necessary factual information and medical evidence. A similar letter was sent to the employing
establishment.
In a letter dated September 18, 2017, J.P., a program consultant for the employing
establishment, controverted appellant’s claim.

2

On September 18, 2017 OWCP received appellant’s completed questionnaire, dated
September 16, 2017. Appellant described that on the morning of June 14, 2017 he was performing
a walking track safety inspection when he stepped into a badger hole. He noted that at first the
pain was not that bad so he was able to continue working, but he subsequently experienced
worsening left knee and left ankle pain. Appellant related that he sought medical treatment because
he still experienced pain, difficulty walking, and problems with sleep. He reported that he had
previously sought medical treatment for his left knee in 2011.
OWCP received a report dated August 10, 2011 by Dr. David H. Larsen, an orthopedic
surgeon. Dr. Larsen related appellant’s complaints of left knee pain and noted examination
findings of mild effusion, medial joint line tenderness, and patellar crepitus with motion. He
discussed appellant’s diagnostic testing and diagnosed degenerative arthritis of the left knee.
By decision dated October 27, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the June 14, 2017 incident occurred as alleged and that there was a diagnosed left
knee condition. However, OWCP denied appellant’s claim finding that the medical evidence of
record was insufficient to establish causal relationship between his diagnosed condition and the
accepted June 14, 2017 employment incident.
On November 2, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on March 6, 2018.
In a letter dated October 26, 2017, Dr. Smidt related that appellant was functioning well
with his left knee prior to his work-related injury. He noted that when appellant stepped into a
hole at work, he experienced a “marked amount of pain” at the time of the injury and had
experienced persistent pain. Dr. Smidt referenced his opinion in the August 21, 2017 progress
note that the “work-related injury necessitated the need for the total knee at this point in time. It
is unlikely he would be requiring a total knee currently without his work-related injury.”
In a letter dated April 4, 2018, Dr. Smidt again referenced his August 21, 2017 progress
note and his opinion that it was unlikely that appellant would need total left knee replacement
surgery without the June 14, 2017 work-related injury. He opined that appellant had preexisting
degenerative changes to his knee prior to his work-related injury. Dr. Smidt explained that
appellant would require knee replacement surgery at some point in the future, but the work-related
injury caused “increased and persistent symptoms in the knee, which have resulted in [appellant]
needing to pursue total knee arthroplasty at this point in time.”
By decision dated May 3, 2018, an OWCP hearing representative affirmed the October 27,
2017 decision.
On May 24, 2018 appellant, through counsel, requested reconsideration. Counsel
resubmitted Dr. Smidt’s April 4, 2018 report, as well as his August 21, 2017 treatment notes.
By decision dated August 21, 2018, OWCP denied modification of the May 3, 2018
decision.

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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 he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA,4 that an injury was sustained while in the performance of duty as alleged, and that any
disability or medical condition for which compensation is claimed is causally related to that
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.7
There are two components involved in establishing fact of injury. The first component is whether
the employee actually experienced the employment incident that allegedly occurred.8 The second
component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.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, 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 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.12

3

Supra note 2.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB
172 (2005).
8

D.S., Docket No. 18-1348 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C.
Lawrence, 19 ECAB 442 (1968).
9

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

10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
12

James Mack, 43 ECAB 321 (1991).

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In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted June 14, 2017 employment incident.
Appellant submitted several reports by Dr. Smidt dated August 21, 2017 to April 4, 2018.
In an August 21, 2017 narrative report, Dr. Smidt described the June 14, 2017 employment
incident and related that an x-ray showed advanced degenerative changes in appellant’s left knee.
He noted examination findings of marked amount of crepitus with active range of motion and
tenderness in the medial and lateral joint line of appellant’s left knee. Dr. Smidt diagnosed
advanced left knee degenerative joint disease and recommended left total knee arthroplasty. He
noted that prior to the injury, appellant had symptoms but was still able to perform his regular
duties. Dr. Smidt concluded that the work-related injury caused “increased and persistent
symptoms in the knee, which have resulted in [appellant] needing to pursue total knee
arthroplasty.”
Although Dr. Smidt attributed the worsening of appellant’s degenerative left knee
condition to the accepted June 24, 2017 employment incident, he did not provide an affirmative
opinion explaining how the described employment incident resulted in the diagnosed medical
condition. The Board has found that a physician must provide a narrative description of the
identified employment incident and a reasoned opinion on whether the employment incident
caused or contributed to appellant’s diagnosed medical condition.14 The need for a reasoned
medical opinion is particularly important due to appellant’s preexisting left knee condition, as
noted by Dr. Larsen’s August 10, 2011 diagnosis of left knee degenerative arthritis.15 Because
Dr. Smidt did not provide a reasoned opinion explaining how the June 14, 2017 employment
incident contributed to or aggravated appellant’s degenerative left knee condition, his reports are
insufficient to establish appellant’s claim.
Appellant’s June 16, 2017 left knee x-ray revealed moderate medial and patellofemoral
osteoarthritis. However, the radiologist who reviewed the x-ray did not specifically address
whether there was a causal relationship between the diagnosed osteoarthritis and the accepted
June 14, 2017 employment incident. The Board has held that diagnostic studies are of limited
probative value as they routinely fail to provide an opinion on causal relationship.16

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

14

See V.J., Docket No. 17-358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

15

D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
16

See A.B., Docket No. 17-0301 (issued May 19, 2017).

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The June 16, 2017 progress note and Form CA-20 by Mr. Kessel, a physician assistant, are
also insufficient to establish appellant’s traumatic injury claim. Certain healthcare providers such
as physician assistants, nurse practitioners, physical therapists, and social workers are not
considered physicians as defined under FECA.17 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.18
On appeal counsel contends that OWCP failed to apply the proper standard of causation
and did not give due deference to the findings of appellant’s treating physician. For the reasons
set forth above, appellant has not provided well-reasoned medical evidence establishing causal
relationship and therefore, he has not met his burden of proof to establish his traumatic injury
claim.
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 left knee
condition causally related to the accepted June 14, 2017 employment incident.

17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2018 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.S., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, New York, NY, Employer
__________________________________________

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

Docket No. 07-415
Issued: June 6, 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 December 6, 2006 appellant filed a timely appeal of a decision of the Office of
Workers’ Compensation Programs dated March 2, 2006 denying further review of the merits of
her claim. As the last merit decision in this case was issued on January 27, 2005, more than one
year prior to the filing of this appeal, the Board does not have jurisdiction to review the merits of
the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a). Appellant’s attorney argues
that the Office improperly evaluated the medical evidence when it terminated appellant’s
compensation.
FACTUAL HISTORY
On January 28, 1987 appellant, then a 43-year-old loan specialist, filed a traumatic injury
claim alleging that she suffered a head injury on January 8, 1987 when she tripped on a

protruding telephone outlet and fell and hit her head on a desk. The claim was accepted for posttrauma syndrome with dizziness and cervical derangement.
In a medical report dated February 11, 2003, Dr. Frank S. Folk, appellant’s treating
surgeon, diagnosed appellant with cervical radiculopathy, lumbar radiculopathy and internal
injury left knee. He indicated that appellant was “not expected to return to any gainful
employment for the next 52 plus weeks.” The Office referred appellant to Dr. Lester Lieberman,
a Board-certified orthopedic surgeon, for a second opinion. In a report dated August 8, 2003,
Dr. Lieberman listed his diagnosis as cervical sprain resolved. He noted that appellant’s
abdominal pain was not related to the work injury. Dr. Lieberman found that appellant was able
to return to work with restrictions. In a March 30, 2004 report, Dr. Folk opined that appellant
was totally disabled and that this was a permanent disability. On June 6, 2004 appellant was
referred to Dr. John M. Lloyd, a Board-certified orthopedic surgeon, for a second opinion. In a
report dated July 20, 2004, Dr. Lloyd indicated that appellant had a resolved cervical sprain. He
indicated that he believed that the accepted condition was temporary and had now resolved, and
that this took place five years after the accident. In order to resolve the conflict between the
opinion of Dr. Folk, appellant’s treating physician, and Drs. Lieberman and Lloyd, the second
opinion physicians, with regard to whether appellant had any residuals from the 1987 accepted
injury, the Office referred appellant to Dr. Michael J. Katz, a Board-certified orthopedic surgeon,
for an impartial medical evaluation. In a report dated August 30, 2004, Dr. Katz stated that
appellant’s cervical strain, lumbosacral strain and left knee contusion had resolved. He noted
that she had no signs or symptoms of permanence relevant to her fall of January 8, 1987.
On November 5, 2004 the Office issued a notice of proposed termination of benefits
finding that the evidence supported that appellant’s work-related medical condition had resolved.
No timely response was received and accordingly on December 6, 2004 the Office terminated
appellant’s compensation benefits effective that date.
On December 30, 2004 appellant requested reconsideration. In support thereof, she
submitted Dr. Folk’s medical report noting that, as of her December 11, 2004 visit, she remained
totally disabled. Appellant also submitted a medical report dated December 22, 2004 wherein
Dr. Louis C. Rose, a Board-certified orthopedic surgeon, listed his impressions as severe cervical
spine sprain with possible radiculopathy, thoracic spine sprain, lumbar radiculopathy with
possible herniated nucleus pulposus and internal derangement of the bilateral knees, right greater
than left, with traumatically-induced chondromalacia patella secondary to fall. Dr. Rose
recommended further studies.
By decision dated January 27, 2005, the Office denied modification of its December 9,
2004 decision.
On December 6, 2005 appellant requested reconsideration. In support thereof, she
submitted an October 22, 1989 report by Dr. Rolland S. Parker, a consulting clinical
neuropsychologist, noting generalized brain damage manifested by loss of mental ability in all
measured areas, depressive reaction, manifested by dysphoric mood, lack of confidence, dull
effect and loss of morale related to the January 8, 1987 employment injury. Appellant also
submitted a February 11, 2005 magnetic resonance imaging (MRI) scan which was interpreted as
showing disc herniation at L4-5 and broad nonfocal disc bulge at L4-5. Finally, she submitted a

2

follow-up report based on a March 2, 2005 examination wherein Dr. Rose diagnosed cervical
herniated nucleus pulposus with a component of double crush syndrome affecting the bilateral
upper extremities, thoracic spine sprain with possible thoracic derangement, lumbar herniated
nucleus pulposus and internal derangement of the bilateral knees with medial and lateral
meniscal tear with traumatically-induced chondromalacia patella. Dr. Rose noted that he has
discussed with appellant that the symptoms to both knees have been persistent and ongoing since
her injury in 1987. He advised that she was not a candidate for returning to full work duties, but
may perform sedentary type work.
By decision dated March 2, 2006, the Office found that appellant’s request for
reconsideration was not sufficient to warrant a merit review of the decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation under application by an employee who receives an adverse
decision. The employee may obtain this relief through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.2
To require the Office to reopen a case for merit review under 5 U.S.C. § 8128(a), the
Office regulations provide that the application for reconsideration must set forth arguments and
contain evidence that either: (1) shows that the Office erroneously applied or interpreted a
specific point of law; (2) advances a legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence that meets at least one of these standards. If reconsideration is
granted, the case is reopened and is reviewed on the merits.4
ANALYSIS
In the instant case, appellant’s claim was accepted for post-trauma syndrome with
dizziness and cervical derangement. Based on the opinion of the impartial medical examiner,
Dr. Katz, the Office terminated appellant’s benefits on December 6, 2004. In a decision dated
January 27, 2005, the Office denied modification of its December 6, 2004 decision.

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.605.

3

20 C.F.R. § 10.606.

4

5 U.S.C. §§ 8101-8193, 8128(a). The Board has found that imposition of the one-year time limitation does not
constitute an abuse of discretionary authority granted the Office under section 8128(a) of the Act. See Adell Allen
(Melvin L. Allen, 55 ECAB 390 (2004).

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In support of her request for reconsideration, appellant submitted a report by Dr. Rose
wherein he diagnosed cervical herniated nucleus pulposus with a component of double crush
syndrome affecting the bilateral upper extremities, thoracic spine sprain with possible thoracic
derangement, lumbar herniated nucleus pulposus and internal derangement of the bilateral knees
with medial and lateral meniscal tear with traumatically-induced chondromalacia patella.
Dr. Rose noted that appellant’s symptoms have been persistent and ongoing since her 1987
injury. The Board finds that, as the Office accepted post-traumatic syndrome with dizziness and
cervical derangement, Dr. Rose’s report is irrelevant as the diagnosed conditions contained in his
report were not accepted as employment related. As such, this report is insufficient to warrant a
merit review.
Dr. Parkers’ opinion of October 22, 1989 expresses his opinion at that time and does not
address the issue at hand, i.e., whether the Office properly terminated appellant’s benefits on
December 4, 2004 as he no longer had residuals from the 1987 accident.
The MRI scan submitted by appellant did not address the threshold issue of termination.
On appeal appellant’s attorney contends that the Office did not properly evaluate the
medical evidence of record when it terminated appellant’s compensation benefits and other
arguments concerning the merits of the termination which the Office has not previously
considered. As appellant’s attorney presented these arguments for the first time on appeal, the
Board finds that it is precluded from addressing them.5
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

20 C.F.R. § 501.2(c). Appellant may resubmit this argument to the Office accompanied by a request for
reconsideration pursuant to 5 U.S.C. § 8128(a). 20 C.F.R. § 10.606(b) (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2006 is affirmed.
Issued: June 6, 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
__________________________________________
P.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
La Crosse, WI, Employer
__________________________________________

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

Docket No. 08-500
Issued: June 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decisions dated August 16, 2006 and September 17, 2007.
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 has met his burden of proof in establishing that he
sustained a right shoulder condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 49-year-old custodial worker, filed a Form CA-2 claim for benefits on
May 15, 2006, alleging that as of April 10, 2006 he became aware that he had a right shoulder
condition causally related to factors of his employment.

In a report dated April 10, 2006, Dr. Bruce J, Kerr, Board-certified in internal medicine,
stated:
“[Appellant] reports at this time for evaluation of right scapular pain and increase
in anxiety. [He] left work today because of increasing symptoms. [Appellant]
was sweeping and felt worsening symptoms around his right upper back.”
“[Appellant] is interested in physical therapy for his injury… I do recommend
removing him from the workplace for several days, to allow him adequate time to
evaluate these symptoms and for occupational medicine evaluation. Further, time
off or return to workplace under restrictions will be arrived at after proper
occupational medicine evaluation.
Dr. Kerr noted on April 11, 2006 that x-ray results showed no pneumothorax on the right
and no active infiltrates. He advised that right scapular x-rays showed no bony abnormalities of
either the shoulder or the scapula.
In a report dated April 24, 2006, Dr. Catherine J. Inman, a specialist in occupational
medicine, related appellant’s complaints of right shoulder and right upper back pain and stated:
“[Appellant] states that he is a 60 percent disabled veteran and because of that
reason was put on a 20-pound weight restriction. He states that he has been
having pain with using his dust mop since February 6, 2005.... [Appellant]
describes his right upper back pain as below his right scapula and burning in
nature that is present upon awakening and worsens as the day progresses.”
Dr. Inman noted that appellant had undergone chiropractic treatment, which provided
some relief. On physical examination, she stated that appellant had full range of neck motion
with pain in internal rotation/adduction and pain with abduction at 120 degrees. Dr. Inman noted
some mild tenderness over the right acromioclavicular joint with some tenderness in the
infraspinatus area. Appellant also experienced pain with external rotation. Dr. Inman diagnosed
right infrascapular pain, work relatedness to be determined. She advised that, because of his
symptoms that suggested possible cervical disc pathology as the cause of his symptoms, she was
referring him to his primary care physician at the employing establishment. Dr. Inman
concluded:
“I explained to him that I doubt [his right scapular pain] can be considered work
related due to his 1988 injury since that did not appear to be musculoskeletal and
it would have resolved by this time. [Appellant] is on work restrictions as per [the
employing establishment] with a 20-pound work restriction, so it is not necessary
to address that aspect of his work restrictions. However, I recommend that he
have restricted reaching to the occasional category.”
By letter dated June 12, 2006, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits.
The Office asked him to submit a comprehensive medical report from his treating physician
describing his symptoms and the medical reasons for his condition and an opinion as to whether

2

his claimed conditions were causally related to his federal employment. Appellant did not submit
any additional medical evidence.
By decision dated August 16, 2006, the Office denied appellant’s claim, finding that he
failed to submit medical evidence sufficient to establish that he sustained a right shoulder
condition in the performance of duty.
In a December 26, 2006 report, Dr. Aaron J. Hanesworth, a specialist in family practice,
stated:
“[Appellant] is a 49-year[-]old male who is a disabled veteran as well as having
problems with chronic ongoing right scapular pain. The origin of this pain seems
to date back to 1988. It has been bothering him much worse since April 2006....
It has been worse over the last several days and he feels like he needs some time
off work to help heal this.”
Dr. Hanesworth stated that his examination of appellant’s back revealed tenderness just
medial to the lower aspect of the right scapula. He noted some spasm of the thoracic paraspinous
muscles on the right side. Dr. Hanesworth advised that appellant could reach over his head, but
this only reproduced the pain. In a January 18, 2006 note, Dr. Michael S. Rusak, a chiropractor,
recommended physical therapy for appellant.
By letter dated July 8, 2007, appellant requested reconsideration.
diagnostic tests from March 2005 and May 2006, which showed normal results.

He submitted

By decision dated September 17, 2007, the Office denied modification of the August 16,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
1

5 U.S.C. §§ 8101-8193.

2

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

3

Victor J. Woodhams, 41 ECAB 345 (1989).

3

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty 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 claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed right shoulder condition to factors of his
employment. For this reason, he has not discharged his burden of proof to establish his claim
that this condition was sustained in the performance of duty.
Appellant submitted reports from Drs. Kerr, Inman and Hanesworth, who related findings
of right shoulder and right scapular pain on examination, in addition to upper back pain, but did
not provide any diagnosis or a probative, rationalized medical opinion that the claimed condition
or disability was causally related to employment factors. Dr. Inman advised that appellant’s
symptoms suggested possible cervical disc pathology as the cause of his symptoms, but
diagnostic tests were normal. In addition, she indicated that the injury was probably not work
related in light of a previous injury he had sustained in 1988 injury and because it did not appear
to be musculoskeletal and would have resolved by this time. Dr. Hanesworth stated in his
December 26, 2006 report that appellant was having problems with chronic ongoing right
scapular pain, which seemed to have originated in 1988. While his examination showed
tenderness at the lower aspect of the right scapula and some spasm of the thoracic paraspinous
muscles on the right side, he did not relate these symptoms to any factors of employment
The opinions of the physicians of record are of limited probative value as they do not
contain any medical rationale explaining how or why appellant’s claimed right shoulder

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

condition was currently affected by or related to factors of employment.6 The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.7
Appellant did not submit a medical opinion which sufficiently described his job duties or
explained the medical process through which such duties would have been competent to cause
the claimed condition. Accordingly, he failed to submit sufficient medical evidence to establish
that his claimed right shoulder condition was causally related to his employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. The Office
advised appellant of the evidence required to establish her claim. However, he failed to submit
such evidence. Accordingly, the Office properly denied appellants’ claim for compensation
based on a right shoulder condition.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establish that his
claimed right shoulder condition was sustained in the performance of duty.

6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2007 and August 16, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT AUDIT AGENCY,
Central Islip, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1514
Issued: January 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2006 appellant filed a timely appeal from the June 29, 2005 merit decision of
the Office of Workers’ Compensation Programs, which suspended his compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the
suspension. The Board also has jurisdiction to review the Office’s July 20, 2005 merit decision
terminating compensation for wage loss, as well as the Office’s June 12, 2006 nonmerit decision
denying reconsideration.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s compensation on
the grounds that he obstructed a medical examination; (2) whether the Office properly terminated
his compensation for wage loss on the grounds that he had no further neurologic disability for
work; and (3) whether the Office properly denied his request for reconsideration.

FACTUAL HISTORY
On November 8, 2001 appellant, then a 41-year-old senior auditor, filed a claim for
compensation alleging that he had developed symptoms of bilateral carpal tunnel syndrome:
“Since June of 2000, the symptoms of carpal tunnel syndrome have become noticeable in both
the right and left hand and have progressively gotten more painful to the current state where I
cannot perform my job effectively. My job function has increased to 70 to 80 percent computer
time and surgery was not a guaranteed permanent cure.” The Office accepted his claim for
bilateral carpal tunnel syndrome and paid compensation on the periodic rolls.1
On November 3, 2004 the Office notified appellant in writing that he had an appointment
at 11:00 a.m. on December 3, 2004 with Dr. Allen Zippin, a referral physician, whose address
the Office provided. It notified appellant that failure to report for examination without good
cause could result in the suspension of his benefits under 5 U.S.C. § 8123(d). The Office
provided appellant a chance to present any objections to its choice of physician.
In a November 12, 2004 letter, appellant stated that he was uncomfortable seeing
Dr. Zippin again because when he saw that doctor in March 2003, “he had me strip to my
underwear, and felt my privates.” Appellant advised the Office: “I am complying with your
request to see a doctor, but the objection submitted to seeing Dr. Zippin is very serious, and am
sure a hearing officer will agree should this case come down to that, which it shouldn’t, for I am
trying to work with your office as much as possible.”
The Office informed appellant on December 1, 2004 that he did not raise this concern for
over 18 months and that there was no showing that Dr. Zippin had no legitimate neurological
reason for examining appellant the way he did, given appellant’s low back complaints. The
Office advised appellant that it would suspend his benefits if he did not attend the December 3,
2004 appointment.
Appellant wrote again on December 2, 2004. He reiterated that he was not refusing to
see a doctor regarding his work-related injury, but reiterated his objection to seeing Dr. Zippin.
Appellant did not keep his appointment on December 3, 2004. On December 7, 2004 the
Office asked him in writing to provide an explanation within 14 days. The Office advised that
failure to show good cause would result in a suspension of his compensation.
Appellant responded on December 15, 2004 that the Office already had a complete
explanation from earlier letters objecting to the selected physician, which he again related.
In a decision dated December 22, 2004, the Office suspended appellant’s compensation
under 5 U.S.C. § 8123(d) effective that date. It notified him that his right to compensation was
suspended until the refusal or obstruction stopped.

1

The Office previously accepted that appellant developed bilateral carpal tunnel syndrome in the performance of
duty in 1997. The Office authorized surgeries and appellant returned to his job in 1998.

2

On January 28, 2005 the Office advised appellant’s congressman that it would schedule
an appointment with another physician “in order to move this case forward.” The Office referred
appellant to Dr. Chandra M. Sharma, a Board-certified neurologist, to resolve a conflict between
the referral physician, Dr. Zippin, and appellant’s attending anesthesiologist, Dr. Meeru SathiWelsch.
Appellant kept his appointment on March 23, 2005. Dr. Sharma related appellant’s
history, reviewed his medical records, described his complaints and reported findings on
neurologic examination. She diagnosed multiple subjective pain and paresthesias in both hands.
Dr. Sharma was unable to relate this subjective pain to appellant’s job-related activities. She
explained that there were no objective signs of central or peripheral neurological lesion.
Dr. Sharma added that there was no neurological disability: “I see no neurological limitations to
resumption of regular job-related activity without any limitations.” She concluded that there was
no further need for neurological testing or treatment and no need for household help, special
supplies or special transportation.
On April 13, 2005 Dr. Sharma reviewed electrodiagnostics obtained on March 3, 2005.
Testing showed findings consistent with moderate bilateral distal median neuropathies “as may
be seen with bilateral carpal tunnel syndrome.” Dr. Sharma observed that this study was similar
to one obtained on December 5, 2001, which she noted in her March 23, 2005 report. On
examination, she stated, subjective Tinel’s signs were positive and appellant was unable to
assume the Phalen’s sign posture due to wrist pain; however, “the examination did not show
objective signs of carpal tunnel syndrome in either the right or left hand.” Dr. Sharma opined
that the presence of electrodiagnostic abnormalities on tests and the presence of subjective
Tinel’s signs “do not constitute neurological disability.”
The Office reinstated appellant’s compensation effective March 23, 2005, the date he
kept his appointment with Dr. Sharma. On June 29, 2005 the Office reviewed the merits the
suspension and found it appropriate. On July 20, 2005 the Office terminated appellant’s
compensation for wage loss effective July 11, 2005 on the grounds that the weight of the medical
evidence rested with the opinion of the impartial medical specialist, Dr. Sharma, who reported no
neurologic disability.
On March 14, 2006 appellant requested reconsideration of the Office’s June 29 and
July 20, 2005 decisions. In a decision dated June 12, 2006, the Office denied this request as
untimely and found that it failed to establish clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently
and at the times and places as may be reasonably required.2 If an employee refuses to submit to
or obstructs an examination, his or her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
2

5 U.S.C. § 8123(a).

3

period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.3
To invoke this provision of the law, the Office must ensure that the claimant has been
properly notified of his or her responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management assistant may contact the physician
directly and make an appointment for examination. The claimant and representative, if any,
must be notified in writing of the name and address of the physician to whom he or she is being
referred as well as the date and time of the appointment. The notification of the appointment
must contain a warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to
report for examination. The claimant must have a chance to present any objections to the
Office’s choice of physician, or for failure to appear for the examination, before the Office acts
to suspend compensation.4
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with 5 U.S.C. § 8123(d) until the date on
which the claimant agrees to attend the examination. Such agreement may be expressed in
writing or by telephone (documented on Form CA-110). When the claimant actually reports for
examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. The claimant’s statement that he or she will not appear for an
examination is not sufficient to invoke the penalty.5
ANALYSIS -- ISSUE 1
Appellant refused to submit to the examination scheduled for December 3, 2004. He
does not contend otherwise. Appellant’s stated willingness to see any other physician in no way
minimizes his unequivocal refusal to see the physician to whom the Office had referred him.
The Office has express statutory authority to arrange for medical examinations “as frequently
and at the times and places as may be reasonably required.” This gives the Office broad
discretion, and the evidence before the Board fails to establish an abuse of that discretion. The
Office received additional evidence following appellant’s March 4, 2003 appointment with
Dr. Zippin and determined that additional development of the medical evidence was warranted.
Because appellant failed to report for the December 3, 2004 examination, the question is
whether he showed good cause within 14 days of the Office’s December 7, 2004 request. The
Board finds that he did not. His lay opinion on the medical appropriateness of Dr. Zippin’s
March 4, 2003 neurologic examination is no proof that the physician treated him in anything
other than a professional manner. Dr. Zippin did not report the touching alleged. This, coupled
with appellant’s prolonged failure to bring the matter to the Office’s attention, raises doubt about
3

Id. at § 8123(d).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
5

Id.

4

the credibility of the allegation. Appellant has never been shy about sharing his thoughts with
the Office. That he would allow an inappropriate touching by a referral physician to go
unreported strains belief. The Board finds that appellant did not establish good cause for his
refusal to submit to the December 3, 2004 examination.
The Office correctly followed established procedures for suspending appellant’s
compensation under 5 U.S.C. § 8123(d). The Board will affirm the Office’s June 29, 2005
decision affirming the suspension of compensation effective December 22, 2004. The Board
further finds that the Office properly reinstated compensation effective March 23, 2005, the date
he actually reported for examination. The Office suspended his compensation for obstructing the
December 3, 2004 examination, and that obstruction never stopped.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.6 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.7 When 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
upon a proper factual background, must be given special weight.8
ANALYSIS -- ISSUE 2
The Office terminated appellant’s compensation for wage loss based on the opinion of
Dr. Sharma, the Board-certified neurologist selected to resolve a conflict in medical opinion.
The Board finds, however, that Dr. Sharma’s opinion is not sufficiently rationalized to justify the
termination.
Dr. Sharma’s statement that there were no objective signs of central or peripheral
neurological lesion appeared inconsistent with a positive Tinel’s sign on examination and with
documented electrodiagnostic abnormalities. She attempted to clarify that the presence of
electrodiagnostic abnormalities on tests and the presence of subjective Tinel’s signs “do not
constitute neurological disability,” but she did not fully say why she came to this conclusion.
Dr. Sharma did not explain why the positive Tinel’s sign should be discounted. Moreover, if the
electrodiagnostic abnormalities are consistent with moderate bilateral distal median neuropathies,
as may be seen with bilateral carpal tunnel syndrome, then Dr. Sharma must address why these
objective findings do not limit appellant’s ability to perform the specific physical requirements
of his senior auditor’s position. It may be that appellant has residuals of bilateral carpal tunnel
syndrome that do not disable him from performing those physical requirements. The Office,
6

Harold S. McGough, 36 ECAB 332 (1984).

7

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
8

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

5

however, cannot discharge its burden of proof on a mere conclusion. For Dr. Sharma’s opinion
to carry the weight of the evidence, she must show that her conclusion is sound and logical.
Because she did not, the Board will reverse the Office’s July 20, 2005 decision terminating
compensation for wage loss effective July 11, 2005.
LEGAL PRECEDENT -- ISSUE 3
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.9 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the “application for
reconsideration.”10
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.11
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.12 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.13
ANALYSIS -- ISSUE 3
Appellant sent his March 14, 2006 application for reconsideration within one year of the
Office’s June 29, 2005 merit decision regarding suspension of benefits. The Office, therefore,
should have applied the standard of review set forth above and not that more difficult standard of
“clear evidence of error,” which is properly reserved for untimely requests. The Board will set
aside the Office’s June 12, 2006 decision denying reconsideration and remand the case for
application of the proper standard of review.

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.605 (1999).

11

20 C.F.R. § 10.606.

12

20 C.F.R. § 10.607(a).

13

20 C.F.R. § 10.608.

6

CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation under
5 U.S.C. § 8123(d). The Board further finds that the Office did not meet its burden to terminate
compensation for wage loss. The impartial medical specialist did not offer sufficient reasoning
to support his conclusion that appellant no longer had neurologic disability for the position of
senior auditor. The Board also finds that the Office improperly denied appellant’s request for
reconsideration. It applied the wrong standard of review.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2005 decision of the Office of
Workers’ Compensation Programs, suspending compensation, is affirmed. The Office’s July 20,
2005 decision terminating compensation for wage loss is reversed. The Office’s June 12, 2006
nonmerit decision denying appellant’s request for reconsideration is set aside and the case
remanded for further action consistent with this opinion.
Issued: January 8, 2007
Washington, DC

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

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

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

7