United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 21-1163
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a December 14, 2020 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 over
the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 3, 2020, as she no longer had
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

disability or residuals causally related to her accepted February 21, 2006 employment injury;
(2) whether appellant has established that she had continuing disability or residuals on or after
December 3, 2020 causally related to her accepted February 21, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2006 appellant, then a 41-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS)
due to factors of her federal employment, including pushing, pulling, transporting, and lifting
patients. She noted that she first became aware of her condition and its relationship to her federal
employment on February 21, 2006. Appellant underwent a right carpal tunnel release on
July 12, 2006. OWCP accepted appellant’s claim for bilateral CTS on January 15, 2009.
On July 22, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Chason Hayes, a Board-certified orthopedic surgeon. It requested that Dr. Hayes evaluate
whether appellant continued to have residuals or disability due to the accepted February 21, 2006
employment injury.
In an August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported his findings on physical examination. He noted that appellant had last undergone an
electromyogram/nerve conduction velocity (EMG/NCV) study on October 10, 2014, which was
consistent with severe bilateral peripheral polyneuropathy, probably related to her insulin dependent diabetes. On physical examination Dr. Hayes observed that appellant’s wrists had no
abnormal findings, that her scar was well healed, she had no swelling, and full range of motion.
He also observed that she was uncooperative with the sensory examination. Dr. Hayes opined that
appellant’s work-related CTS had resolved following surgery and that she had no residuals. He
further opined that appellant was capable of working her date -of-injury position. Dr. Hayes
explained that appellant had residuals from unrelated medical conditions such as cervical
radiculopathy and peripheral neuropathy from diabetes, but that, with regard to the accepted work
condition, there was no medical contraindication to her returning to full-duty employment.
On October 23, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Hayes’ opinion that the February 21, 2006
accepted condition had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence of argument challenging the proposed termination.
In a response dated November 11, 2020, appellant replied to OWCP’s notice of proposed
termination, stating that she did not understand why her claim was being terminated when she still
had medical problems. In an attached letter dated March 5, 2020, Dr. Katherine Butler, an
3

Docket No. 10-1201 (issued January 4, 2011); Docket No. 09-2166 (issued May 12, 2010); Docket No. 07-1559
(issued November 7, 2007).

2

orthopedic surgeon, opined that appellant had recurrent bilateral CTS, noting that she had
previously been treated by another physician for bilateral CTS due to repetitive work activities.
She explained that appellant’s recurrence was likely due to scar tissue formation at the surgical
site and, therefore, could be considered related to her initial injury. In a letter dated June 24, 2020,
Dr. Butler explained that she had begun seeing appellant as a patient in 2020. She diagnosed
bilateral carpal tunnel syndrome, noting that it was supported by physical examination, NCV
studies, and medical reports. Dr. Butler stated that appellant’s symptoms appeared to be consistent
and that she had reached maximum medical improvement (MMI). She noted that appellant had
previously undergone bilateral CTS surgery, but continued to have numbness, burning, pain, and
weakness in her hands, which prevented her from returning to employment. Dr. Butler opined that
it was reasonable to assume, based on documentation, that appellant had bilateral CTS attributable
to work and that she has been persistently unable to return to work due to this injury.
In a letter dated July 15, 2020, Dr. Benjamin Ott, a Board-certified family practitioner,
opined that appellant had chronic bilateral CTS due to repetitive work activities in her federal
employment as of February 21, 2006. He explained that her persistent symptoms were likely due
to scar tissue formation related to previous treatment and that she was permanently disabled from
all occupations due to this injury.
Appellant also attached a progress report from Dr. William Mason, a Board-certified
orthopedic surgeon, dated November 29, 2006, in which he opined she was unable to work.
In a note dated November 27, 2020, Dr. Ott indicated that he had seen appellant regularly
every three to four months since prior to 2011. He noted that he regularly discussed her ongoing
issues with CTS and nerve damage at her appointments, including in 2019 and 2020.
By decision dated December 2, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 3, 2020, based on Dr. Hayes’ second
opinion report.
On December 10, 2020 appellant requested reconsideration.
submitted an EMG/NCV study dated March 3, 2020.

With her request, she

By decision dated December 14, 2020, OWCP denied modification the of the December 2,
2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.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

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
In his August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported the findings of his physical examination. On physical examination of appellant’s
wrists, he observed normal findings, including that appellant’s scar was well healed, she had no
swelling, and full range of motion. Dr. Hayes opined that appellant’s work-related CTS had
resolved after surgery and that she had no residuals. He related that he had reviewed appellant’s
October 10, 2014 EMG study, which he related was consistent with severe bilateral peripheral
polyneuropathy. While he opined that this finding was “probably” related to appellant insulindependent diabetes, Dr. Hayes offered no rationale in support of his opinion. His opinion regarding
the cause of appellant’s severe bilateral peripheral polyneuropathy was speculative in nature. The
Board has held that speculative and equivocal medical opinions regarding causal relationship have
no probative value. 9 The Board also notes that, while Dr. Hayes found that the 2014 EMG revealed
severe bilateral median nerve studies, he did not obtain further diagnostic studies to confirm
whether appellant’s condition had resolved. Dr. Hayes concluded that appellant had residuals from
unrelated medical conditions such as cervical radiculopathy and peripheral neuropathy from
diabetes, but he offered no medical rationale, supported by objective findings, regarding the cause
of appellant’s continued residuals. The Board has held that a medical opinion is of limited
probative value if it contains a conclusion regarding a given medical matter, which is unsupported
by medical rationale. 10

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

M.G., Docket No. 21-0747 (issued October 15, 2021).

10

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

As Dr. Hayes’ August 19, 2020 report was insufficiently rationalized and of diminished
probative medical value in establishing that appellant’s accepted bilateral carpal tunnel conditions
had resolved, OWCP improperly determined that it constituted the weight of the medical evidence.
The Board therefore finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

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

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

11

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, MEDWAY POST
OFFICE, Medway, MA, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0629
Issued: June 2, 2020

Case Submitted on the Record

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

JURISDICTION
On January 22, 2019 appellant filed a timely appeal from an August 13, 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 to
consider the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 13, 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 appellant received an overpayment of compensation in the
amount of $50,438.34 for the period March 1, 2014 to May 26, 2018, for which she was without
fault, as she concurrently received Social Security Administration (SSA) age-related retirement
benefits while in receipt of FECA compensation benefits; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery of
the overpayment by deducting $300.00 every 28 days from appellant’s continuing compensation
payments.
FACTUAL HISTORY
On June 26, 2006 appellant, then a 58-year-old full-time regular clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she sustained a shoulder injury when
throwing packages into a hamper while in the performance of duty. OWCP accepted her claim
for sprains of the right shoulder (acromioclavicular region), right upper arm, and neck.
Appellant stopped work on the date of injury and did not return. OWCP paid her wage-loss
compensation for disability from work on the supplemental rolls commencing August 11, 2006,
and on the periodic rolls commencing October 1, 2006.
In a March 3, 2014 letter, SSA informed appellant that it was changing the type of benefits
she was entitled to receive effective March 1, 2014 because she was entitled to retirement benefits.
It advised that she was no longer entitled to disability benefits because she had reached full
retirement age.
On May 21, 2018 OWCP received a May 16, 2018 FERS SSA Dual Benefit Calculation
form from SSA which advised that appellant began receiving SSA benefits effective March 1,
2014 and it provided figures for both appellant’s SSA rate with Federal Employees Retirement
System (FERS) and her SSA rate without FERS on several effective dates. The respective rates
for the delineated effective dates were reported as follows: March 1, 2014 ($1,693.20 and
$721.70), December 1, 2014 ($1,721.90 and $733.90), December 1, 2015 ($1,721.90 and
$733.90), December 1, 2016 ($1,727.00 and $736.10), and December 1, 2017 ($1,761.50 and
$750.80).
In a letter dated May 31, 2018, OWCP informed appellant it had recently been found that
she had been receiving SSA age-related retirement benefits since 2014 and it advised her that the
portion of SSA benefits attributable to federal service as an employee under FERS necessitated an
offset of FECA compensation benefits. It described the FERS/SSA offset it made to her FECA
compensation benefits effective May 27, 2018.
On June 11, 2018 a calculation worksheet dated May 31, 2018 was added to the case record.
An OWCP official provided calculations of the FERS/SSA offset for the period March 1, 2014
through May 26, 2018 based on the figures for appellant’s SSA rates with FERS and her SSA rates
without FERS as delineated in SSA’s May 16, 2018 document. The amount of the overpayment
created as a result of the failure to apply the FERS/SSA offset was calculated to be $50,438.34.
By preliminary determination dated June 14, 2018, OWCP advised appellant that an
overpayment of compensation in the amount of $50,438.34 had been created because she received
2

SSA age-related retirement benefits at the same time she received FECA compensation benefits
from March 1, 2014 to May 26, 2018 without a proper FERS/SSA offset. It informed appellant
that, because she was a FERS employee, SSA age-related retirement benefits were considered part
of a FERS retirement and the portion of the SSA benefits attributable to her FERS employment
required an offset adjustment. OWCP also made a preliminary determination that appellant was
without fault in the creation of the overpayment. It explained that the overpayment was calculated
using figures provided by SSA for her SSA rate with FERS and her SSA rate without FERS on a
series of effective dates for the period March 1, 2014 through May 26, 2018. The difference
between the amount of FECA compensation owed and the amount paid was $50,438.34. OWCP
advised appellant that she could request waiver of recovery of the overpayment and requested that
she submit a completed overpayment recovery questionnaire (Form OWCP-20) for consideration
on the question of waiver and determine a reasonable method for collection. It provided appellant
with appeal rights and afforded her 30 days to respond.
Appellant submitted an overpayment action request form, dated June 23, 2018, in which
she requested waiver of recovery of the overpayment, noting her belief that she was without
fault in its creation. She advised that the amount of her FECA compensation had changed and
asserted that she could not afford to repay the overpayment. Appellant also submitted a Form
OWCP-20, signed on June 23, 2018, in which she reported total monthly income of $1,863.00
in SSA benefits.4 She also submitted documentation which showed $3,125.00 in monthly
expenses, including $1,862.00 for rent/water, $70.00 for electricity, $24.00 for homeowner’s
insurance, $328.00 for automobile leasing, $110.00 for automobile insurance, $50.00 for
clothing, $40.00 for furniture, $126.00 for medical alert service, $2.00 medical oxygen, $313.00
for cable service, $51.00 for minimum payment of credit card debt, and $149.00 for minimum
payment of a second credit card.5 Appellant noted other expenses for which she did not submit
documentation, including $350.00 for food, $50.00 for medication, $389.00 for utilities (not
otherwise specified), and $418.00 for “other expenses.” She reported assets of $50.00 in cash
on hand, $100.00 in her checking account, and $43,000.00 in her savings account. Appellant
further noted that a portion of her savings is in her children’s names “in case of emergency.
By decision dated August 13, 2018, OWCP determined that appellant received an
overpayment of compensation in the amount of $50,438.34 as she was in receipt of FERS and SSA
dual benefits for the period March 1, 2014 to May 26, 2018 without a proper FERS/SSA offset. It
noted that the portion of SSA benefits earned as a federal employee was part of the FERS
retirement, and that the receipt of FECA benefits and federal retirement benefits concurrently was
a prohibited dual benefit. OWCP found that appellant was without fault in the creation of the
overpayment, but that her financial circumstances did not warrant waiver of recovery of the
overpayment. It indicated that appellant had $4,831.00 in monthly income (comprised of
$1,863.00 in SSA benefits and $2,968.00 in FECA benefits) and $3,125.00 in documented monthly
expenses, and that she had reported $43,150.00 in assets. OWCP determined that appellant’s
financial circumstances showed that the overpayment could be recovered by deducting $300.00
every 28 days from her continuing compensation benefits.

4

Documentation in the case record reveals that appellant also was receiving $2,968.00 in FECA compensation
benefits every 28 days at the time she completed the Form OWCP-20.
5

The monthly expense figures provided by appellant have been rounded to the nearest dollar.

3

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 his or her 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 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.8
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.9 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA age-related retirement benefits because the portion of SSA
age-related retirement benefits 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.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $50,438.34 for the period March 1, 2014 to May 26, 2018, for
which she was without fault, as she concurrently received Social Security Administration (SSA)
age-related retirement benefits while in receipt of FECA compensation benefits.
Commencing August 11, 2006, OWCP paid appellant wage-loss compensation for total
disability due to her accepted injury. Commencing March 1, 2014, appellant received SSA agerelated retirement benefits. As noted, a claimant cannot receive compensation for wage-loss
compensation and SSA retirement benefits attributable to federal service for the same period.11
The information provided by SSA indicated that a portion of appellant’s SSA age-related
retirement benefits were attributable to her federal service. As OWCP neglected to offset her
FECA benefits for the period March 1, 2014 to May 26, 2018, she received an overpayment of
wage-loss compensation.12

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

Id. at § 8129(a).

9

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
10

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

11

See supra notes 9 and 10; see also A.C., Docket No. 18-1550 (issued February 21, 2019).

12

Id.

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Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA benefits that were attributable to appellant’s federal service. It
received documentation from SSA with respect to the specific amount of age-related SSA
retirement benefits that were attributable to federal service. SSA provided appellant’s SSA rates
with FERS and without FERS for specific periods beginning March 1, 2014.13 OWCP provided
its calculations of the amount that it should have offset for each relevant period based on SSA’s
documentation. The Board has reviewed OWCP’s calculations and finds that it properly
determined that appellant received prohibited dual benefits totaling $50,438.34, creating an
overpayment of compensation in that amount.14
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.15 Section 8129 of FECA16
provides that an overpayment must be recovered 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 would be against equity and good conscience.” Thus, a finding that appellant was
without fault does not automatically result in waiver of recovery of the overpayment. OWCP must
then determine whether recovery of the overpayment would defeat the purpose of FECA or would
be against equity and good conscience.17
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.18 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market
value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies,

13

Documentation from SSA provided applicable rates effective the following dates: March 1 and December 1,
2014, December 1, 2015, December 1, 2016, and December 1, 2017.
14

See A.S., Docket No. 19-0171 (issued June 12, 2019).

15

See J.R., Docket No. 19-1418 (issued March 4, 2020); P.J., Docket No. 18-0248 (issued August 14, 2018); Robert
Atchison, 41 ECAB 83, 87 (1989).
16

5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559
(issued June 21, 2018).
17

A.C., id.; see V.T., Docket No. 18-0628 (issued October 25, 2018).

18

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

5

vehicle(s) above the two allowed per immediate family, retirement account balances (such as
Thrift Savings Plan or 401(k)), jewelry, and artwork.19
According to 20 C.F.R. § 10.437 recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse.20 To establish that a valuable right has been relinquished, it must be
shown that the right was in fact valuable, that it cannot be regained, and that the action was based
chiefly or solely in reliance on the payments or on the notice of payment.21
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver
of recovery of the overpayment.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses and that her assets do not exceed the allowable
resource base. The Board finds that appellant, who reported $43,150.00 in assets, has not met the
standard for waiver of recovery of the overpayment because her assets exceed the allowable
resource base. Appellant reported assets of $50.00 in cash on hand, $100.00 in her checking
account, and $43,000.00 in her savings account. She suggested that a portion of her savings
account was in her children’s names “in case of emergency” following the sale of a home, but she
did not clarify the nature of any such potential entitlement and the monies in the saving account
must be considered to belong to her as she reported that $43,000.00 was the balance of her own
savings account.23 Because appellant has not met the second prong of the two-prong test of
whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary for
OWCP to consider the first prong of the test, i.e., whether she needs substantially all of her current
income to meet ordinary and necessary living expenses.24

19

Id. at Chapter 6.400.4b(3)(a), (b).

20

20 C.F.R. § 10.437(a), (b).

21

Id. at § 10.437(b)(1).

22

Id. at § 10.438.

23

See supra note 18.

24

Id.

6

Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.25
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has failed to show that OWCP
improperly refused to waive recovery of the overpayment.26
On appeal counsel argues that OWCP improperly denied appellant’s request for waiver of
recovery of the overpayment because it overstated her monthly income amount and understated
her monthly expenses. However, the Board notes that the fact that appellant’s assets exceed the
allowable resource base served as the basis for denial of appellant’s waiver request. In addition,
the Board notes that counsel has not presented sufficient argument, supported by relevant
precedent, to demonstrate that OWCP made an improper determination regarding appellant’s
monthly income and expenses.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.27 Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment
as soon as the error is discovered or his or her attention is called to same. If
no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”28
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation payments.
The record supports that, in requiring repayment of the overpayment by deducting $300.00
every 28 days from appellant’s continuing compensation payments, OWCP took into consideration
the financial information submitted by appellant as well as the factors set forth in section 10.441
25

See L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

26

See supra note 17.

27

R.W., Docket No. 19-0451 (issued August 7, 2019); C.A., Docket No. 18-1284 (issued April 15, 2019); Lorenzo
Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).
28

20 C.F.R. § 10.441(a); see A.F., Docket No. 19-0054 (issued June 12, 2019); Donald R. Schueler, 39 ECAB
1056, 1062 (1988).

7

and found that this method of recovery would minimize any resulting hardship on her.29 It
indicated that appellant had $4,831.00 in monthly income and $3,125.00 in documented monthly
expenses, and that she had reported $43,150.00 in assets. Therefore, OWCP properly required
recovery of the overpayment by deducting $300.00 every 28 days from appellant’s continuing
compensation payments.
On appeal counsel argues that OWCP did not adequately consider the financial impact on
appellant of having $300.00 deducted every 28 days from her continuing compensation payments.
However, as noted, OWCP considered appellant’s monthly income, monthly expenses, and assets
when making its determination regarding the method of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $50,438.34 for the period March 1, 2014 to May 26, 2018, for
which she was without fault, as she concurrently received SSA age-related retirement benefits
while in receipt of FECA compensation benefits. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment, and properly required recovery of the overpayment
by deducting $300.00 every 28 days from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2020
Washington, DC

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

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

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

29

See id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1856
Issued: July 19, 2016

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 September 11, 2015 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs (OWCP) dated March 18, 2015. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,285.32 for the period January 22, 2009 to May 3, 2014; and (2) whether OWCP
abused its discretion in denying waiver of recovery of the overpayment.
FACTUAL HISTORY
OWCP accepted that on September 9, 2008 appellant, then a 41-year-old rural carrier,
sustained a right foot contusion when a metal bar fell on her right foot. She stopped work on
1

5 U.S.C. § 8101 et seq.

January 22, 2009, claiming temporary total disability and received wage-loss compensation as
limited duty was not available. Appellant continued to receive compensation for total disability
on the daily rolls until her benefits were terminated on February 22, 2010.
On March 9, 2010 appellant requested review of the decision terminating her
compensation benefits by OWCP Branch of Hearings and Review. Following a series of merit
reviews and further development of the case record, on June 5, 2012 OWCP expanded
acceptance of the claim to include right reflex sympathetic dystrophy of the lower limb. It found
that appellant continued to have residuals from the September 9, 2008 employment injury and
she was retroactively returned to the daily compensation rolls for the period February 23, 2010
through July 28, 2012 and was placed on the periodic rolls commencing July 29, 2012.
On June 3, 2014 OWCP issued a preliminary overpayment determination of $8,318.03
for the period January 22, 2009 to May 3, 2014 as OWCP had failed to deduct postretirement
basic life insurance premiums, an incorrect annual salary had been used as the basis for the
insurance deductions, and an incorrect code had been used for the optional life insurance
premium. It found that appellant was without fault in the creation of the overpayment and
requested that she submit financial information pursuant to an enclosed overpayment recovery
questionnaire (Form OWCP-20) within 30 days if she was requesting waiver of recovery of the
overpayment. OWCP noted that waiver would be denied if she failed to furnish the information
requested on the enclosed OWCP-20 form with supporting documentation within 30 days.
On June 30, 2014 appellant requested a prerecoupment hearing where she disagreed that
an overpayment had occurred and also requested waiver of recovery. She disagreed with the
amount owed as her benefits had been terminated beginning February 22, 2010 and she would
not have been covered by health or life insurance during that period and, therefore, should not be
liable for retroactive premiums during that time. Appellant stated that, by letter dated March 21,
2011, Blue Cross/Blue Shield notified her that her health insurance had been terminated on
November 14, 2010.
Appellant further noted that on August 3, 2012 she was notified by OWCP that she would
receive retroactive compensation from February 23, 2010 to May 27, 2012 in the amount of
$118,890.93, but that she only received $111,987.90 during this time period. She believed that
the discrepancy was due to the fact that deductions had been made for health benefits and life
insurance premiums during the time her benefits had been terminated and under appeal.
A hearing was held on December 18, 2014 where appellant testified disputing the fact
and amount of the overpayment and requested waiver of recovery. She also submitted numerous
documents contesting the overpayment amount and financial information pertaining to waiver of
recovery with OWCP-20 form.
By decision dated February 5, 2015, a Branch of Hearings and Review hearing
representative reversed the June 3, 2014 preliminary overpayment determination. It explained
that OWCP had deducted health insurance and life insurance premiums for the period
January 22, 2009 through May 3, 2014, but appellant’s insurance had been terminated on
November 14, 2010 and she did not have coverage until her benefits were later reinstated on
July 29, 2012. The hearing representative found that OWCP had incorrectly included deductions

2

for premiums for the period November 14, 2010 to July 28, 2012. Upon further calculation, it
found that appellant had been underpaid $771.51 for the period January 22, 2009 to May 3, 2014
and returned the case file to OWCP for appropriate payment of compensation.
By letter dated February 9, 2015, OWCP informed appellant that, pursuant to the
February 5, 2015 decision of the hearing representative, it was processing a payment in the
amount of $771.51.
In a separate letter dated February 27, 2015, OWCP requested that appellant disregard the
February 9, 2015 letter as the payment had not issued and the overpayment was still under
review.
By decision dated March 18, 2015, the Chief of the Branch of Hearings and Review
(hereinafter Branch Chief) vacated the February 5, 2015 hearing representative’s decision. He
issued a new final overpayment decision finding that appellant had received an overpayment of
compensation in the amount of $3,285.32 for the period January 22, 2009 to May 3, 2014, that
she was without fault in creating the overpayment, and that she was not entitled to waiver of
recovery. The Branch Chief explained that OWCP had properly not deducted health insurance
premiums from the retroactive payment, but that it had learned that OWCP was required to
retroactively deduct the life insurance premiums for that period. The Branch Chief accordingly
vacated the February 5, 2015 hearing representative’s decision and affirmed, as modified, the
June 3, 2014 preliminary overpayment determination to reflect an overpayment in the amount of
$3,285.32 for which she was not at fault.
LEGAL PRECEDENT -- ISSUE 1
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 his or her
duty.2 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.3
Under Federal Employees’ Group Life Insurance, most civilian employees of the Federal
Government are eligible to participate in basic life insurance and one or more of the options.
When an under withholding of life insurance premiums occurs, the entire amount is deemed an
overpayment because OWCP must pay the full premium to the Office of Personal Management
(OPM) upon discovery of the error.4

2

Id. at § 8102(a).

3

Id. at § 8129(a).

4

See J.H., Docket No. 15-1385 (issued October 27, 2015).

3

The Board has similarly recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.5
Section 10.431 of the implementing regulations provides that, before seeking to recover
an overpayment or adjust benefits, OWCP will advise the individual in writing that the
overpayment exists and the amount of the overpayment.6 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.7 Additionally, OWCP is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.8 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.9
The recipient of the alleged overpayment may present evidence in response to OWCP’s
preliminary notice either in writing or at a prerecoupment hearing.10 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of
overpayment.11 Failure to request the hearing within this 30-day time period shall constitute
waiver of that right.12
OWCP procedures provide that, once an overpayment is identified and calculated, it is
responsible for determining whether the claimant was with fault or without fault, issuing a
preliminary finding, and unless a hearing is requested, OWCP is responsible for issuing a final
decision.13 These procedures note that, if the claimant is determined to be with fault, Form CA2201 (preliminary finding notice) must be released within 30 days of the date the overpayment is
identified. Both the reason that the overpayment occurred and the reason for the finding of fault
must be clearly stated. Form CA-2201 informs the claimant of the right to submit evidence and
the right to a prerecoupment hearing on the issues of (a) fact and amount of overpayment; (b)
fault; and (c) waiver. Along with Form CA-2201, OWCP should provide a clearly written
statement explaining how the overpayment was calculated.14
5

James Lloyd Otte, 48 ECAB 334 (1997).

6

20 C.F.R. § 10.431(a).

7

Id. at § 10.431(b).

8

Id. at § 10.431(c).

9

Id. at § 10.431(d).

10

Id. at § 10.432

11

Id.

12

Id.

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(May 2004).
14

Id. at Chapter 2.600.4(a)(1) (May 2004).

4

ANALYSIS -- ISSUE 1
On June 3, 2014 OWCP made preliminary findings that appellant had received an
overpayment of compensation in the amount of $8,318.03 for the period January 22, 2009 to
May 3, 2014. On June 30, 2014 appellant requested a prerecoupment hearing disagreeing with
the preliminary overpayment determination. By decision dated February 5, 2015, an OWCP
hearing representative reversed the June 3, 2014 preliminary determination finding no
overpayment for the period January 22, 2009 to May 3, 2014. Upon further calculation,
however, the hearing representative determined that appellant had been underpaid in the amount
of $771.51 for the period January 22, 2009 to May 3, 2014. By decision dated March 18, 2015,
the Branch Chief vacated that decision and issued a new, revised final overpayment decision
finding that she had received an overpayment of compensation in the amount $3,285.32 for the
period January 22, 2009 to May 3, 2014, that she was without fault in the creation of the
overpayment, and that she was not entitled to waiver of recovery.
The Board finds that OWCP denied appellant due process in issuing the March 18, 2015
overpayment decision. OWCP regulations provide that before seeking to recover an
overpayment or adjust benefits, it will advise the individual in writing that the overpayment
exists and the amount of overpayment.15 It must inform the individual of her right to challenge
the fact or amount of the overpayment, the right to contest the preliminary finding of fault in the
creation of the overpayment, and the right to request a waiver of recovery of the overpayment.16
OWCP’s procedures further provide that a preliminary finding of overpayment must be provided
within 30 days and must clearly identify the reason that the overpayment occurred and the basis
for any fault finding.17
The preliminary notice of findings is essential in overpayment cases because OWCP
regulations limit further review of a final decision concerning overpayment to the Board. A
claimant is prohibited from requesting a hearing, or reconsideration, following a final
overpayment decision.18 The claimant is, therefore, precluded from introducing new evidence to
rebut findings made in a final overpayment decision.
The Board notes that OWCP routinely issues a new preliminary determination after an
OWCP hearing representative reviews a preliminary overpayment decision and remands the case
to OWCP for further findings.19
In this case, OWCP did not issue a new preliminary determination advising appellant of
its findings following the February 5, 2015 decision of OWCP’s hearing representative. Rather,
15

20 C.F.R. § 10.431(a).

16

Id. at § 10.431(d).

17

Id.

18

See 20 C.F.R. § 10.440 (b).

19

See N.N., Docket No. 14-0603 (issued July 22, 2014); J.J., Docket No. 13-1905 (issued April 8, 2014); L.B.,
Docket No. 12-1202 (issued February 6, 2013).

5

it simply amended the final amount of overpayment to the amount of $3,285.32. OWCP has not
provided appellant with the right to challenge the new amount of overpayment or inform her
whether she was entitled to waiver of recovery, thereby infringing upon her due process
procedural rights.20 The Board finds that OWCP did not provide her due process and improperly
issued the March 18, 2015 overpayment decision.
In B.T.,21 the Board remanded a January 2, 2013 decision finding an overpayment of
compensation in the amount of $2,934.53 for OWCP to properly calculate the amount of the
overpayment and to consider waiver of the entire amount of the overpayment. On remand
OWCP recalculated the amount of overpayment as directed by the Board and, by final decision
dated April 11, 2014, determined that the claimant had received an overpayment of
compensation in the amount of $3,031.23. On subsequent appeal the Board set aside the
April 11, 2014 decision finding that OWCP had failed to follow its procedures by failing to issue
a revised preliminary determination advising the claimant of its new findings, prior to finalizing
the overpayment. The Board concluded that as OWCP had failed to provide the claimant with
the right to challenge the amount of the overpayment or to request waiver, it had infringed upon
procedural rights. The case was remanded for OWCP to issue a preliminary determination
regarding any overpayment in accordance with its procedures, prior to making any final
overpayment decision.22
As in B.T., in the current March 18, 2015 decision, the Branch Chief modified the fact
and amount of overpayment from the initial June 3, 2014 preliminary determination, and also
from the February 5, 2015 final decision. Yet, appellant was not afforded another process by
which to present evidence to challenge the amount.
In K.G.,23 the Board set aside an OWCP August 20, 2007 decision finding that an
overpayment of compensation had been created in the amount of $7,183.80, and that the
claimant was at fault in the creation of the overpayment, thereby precluding waiver of
recovery.24 It had remanded the case for further development regarding fact of overpayment,
after which OWCP issued a final June 3, 2008 overpayment decision without issuing a new
preliminary determination. The fact and amount of overpayment and findings of fault had not
changed from the initial January 16, 2007 preliminary determination and final August 20, 2007
overpayment decision. However, when the case returned to the Board for the second time on
appeal, the Board found that OWCP had erred in not issuing a new preliminary determination.
The Board found that the claimant had been denied due process because it had failed to issue a
new preliminary determination from which she could request a hearing or review of the
20

20 C.F.R. §§ 10.431, 10.432.

21

Docket No. 13-1619 (issued February 24, 2014).

22

B.T., Docket No. 14-1909 (issued May 19, 2015).

23

K.G., Docket No. 08-2135 (issued April 16, 2009).

24

On January 16, 2007 OWCP made a preliminary determination that appellant was overpaid in the amount of
$7,183.80 for the period April 10 to July 7, 2007. It found that she was at fault in the creation of the overpayment as
she accepted a payment which she knew or should have known to be incorrect.

6

evidence. Similarly, in the case currently before the Board, OWCP has failed to afford appellant
due process as she was not issued a new preliminary determination of overpayment according to
its procedures.
Likewise in M.V.,25 a preliminary determination had been issued on April 3, 2012 and
finalized on October 10, 2012 finding an overpayment of compensation in the amount
$20,227.46. On appeal the Board remanded the case for further development of the medical
evidence for its schedule award determination and further determined that it was premature to
address the overpayment issue as the case was not in posture for determination.26 Per the
Board’s instructions on remand, OWCP further developed the medical evidence for its schedule
award determination and issued a new, final overpayment decision dated December 19, 2013
finding the same $20,227.46 overpayment amount. On a subsequent appeal, the Board remanded
the December 19, 2013 overpayment decision for failing to properly issue a new preliminary
determination notifying the claimant of its findings, providing the right to challenge the fact or
amount of overpayment, or to submit new information regarding waiver of recovery of the
overpayment.27 The Board notes that the fact and amount of overpayment had not changed from
the initial April 3, 2012 preliminary determination and October 10, 2012 final overpayment
decision. Yet, the Board nonetheless found that the claimant had not been afforded his
procedural rights as OWCP had failed to issue a new preliminary determination.
The Board notes that, in the current case, as the fact and amount of overpayment differed
in two subsequent decisions following the initial June 3, 2014 preliminary determination,
appellant was not afforded her procedural rights to challenge the fact and new amount of
overpayment and to request a waiver of recovery of the overpayment.28 In both M.V. and K.G.,
the fact and amount of the overpayment did not change from the preliminary to the final
overpayment decision issued on remand.29 However, the Board still determined that procedural
rights had been denied without a new preliminary determination prior to its final overpayment
decision. As in this case, OWCP failed to issue a new preliminary determination notifying
appellant of its new findings, providing her with the right to challenge the fact and new amount
of overpayment, or to submit new information regarding waiver of recovery of the overpayment.
Consequently, it did not comply with the procedural rights under its regulations.30
25

M.V., Docket No. 13-798 (issued August 14, 2013).

26

The Board set aside an October 20, 2012 schedule determination finding that the claimant was not entitled to
more than 20 percent impairment of the right upper extremity and instructed OWCP to refer him for a new impartial
medical specialist for an impairment evaluation. The Board further set aside an October 10, 2012 decision finding
that appellant received an overpayment of compensation because he received excess compensation for a schedule
award in the amount of $20,227.46. It determined that it was premature to address the overpayment issue as the case
was not in posture for determination regarding the extent of permanent impairment. Id.
27

M.V., Docket No.14-1131 (issued November 14, 2014).

28

20 C.F.R. § 10.431(d).

29

Supra note 24 and 26.

30

20 C.F.R. §§ 10.431, 10.432; see also K.H., Docket No. 11-603 (issued September 27, 2011); and K.G. supra
note 24.

7

Accordingly, the case will be remanded for OWCP to issue a preliminary determination
regarding overpayment consistent with its own procedures.
CONCLUSION
The Board finds that OWCP improperly issued its March 18, 2015 overpayment decision.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 19, 2016
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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1740
Issued: June 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 16, 2019 appellant filed a timely appeal from March 1 and 15 and April 15,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish entitlement
to wage-loss compensation for the period December 8, 2018 through January 18, 2019 and
January 19 through February 1, 2019 causally related to the December 5, 2016 employment injury;
and (2) whether appellant has met his burden of proof to establish that the acceptance of his claim
should be expanded to include an additional right knee condition as a consequence of the
December 5, 2016 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2016 appellant, then a 54-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 5, 2016 he injured his right foot and ankle after his
foot gave way when stepping on a curb as he was delivering mail while in the performance of duty.
OWCP accepted his claim for right ankle sprain. Appellant stopped work on December 5, 2016
and worked intermittently thereafter.
On February 1, 2017 the employing establishment offered appellant a part-time limitedduty position as a city carrier associate effective January 24, 2017. On January 31, 2017 appellant
accepted the position and returned to work.
Appellant filed a claim for compensation (Form CA-7) requesting intermittent
compensation for disability for four hours per day beginning January 21, 2017.
On February 24, 2017 appellant filed a notice of recurrence (Form CA-2a) for disability
alleging that, after returning to part-time limited-duty work on February 6, 2017, he experienced
right knee pain causally related to the accepted December 5, 2016 employment injury. He asserted
that the manner in which he walked due to his right ankle injury caused him to overcompensate
and injure his right knee. Appellant stopped work on February 13, 2017.
In a development letter dated March 3, 2017, OWCP notified appellant of the definition of
a recurrence of disability and informed him of the type of evidence necessary to establish his
recurrence claim. It afforded appellant 30 days to submit additional evidence.
By decision dated April 26, 2017, OWCP denied appellant’s wage-loss compensation
claim finding that the medical evidence of record failed to establish that he was disabled as a result
of the accepted work-related medical conditions. It explained that it had not accepted a right knee
condition and that compensation benefits for disability could not be paid for a condition not
accepted as work related.
Reports from Dr. Robert T. Nixon, Jr., a Board-certified orthopedist, dated December 19,
2016 to January 30, 2017, noted treatment for right ankle pain after a twisting injury at work on
December 6, 2016. He diagnosed right ankle sprain and right Achilles tendinitis and
recommended a controlled ankle movement (CAM) walker boot, physical therapy, and sedentary
work. Dr. Nixon continued to treat appellant from February 27 to April 14, 2017 for right knee
pain. He diagnosed right knee meniscal tear and opined that appellant’s right knee was injured at
the time of his ankle injury. Dr. Nixon recommended arthroscopic surgery. In a duty status report
(Form CA-17) dated March 17, 2017, he again diagnosed right knee meniscus tear and opined that
appellant required right knee surgery. Dr. Nixon returned him to sedentary work.
A magnetic resonance imaging (MRI) scan of the right knee dated March 10, 2017 revealed
thickening and signal abnormality of the anterior cruciate ligament (ACL) compatible with old
avulsion injury and mucinous degeneration, attenuation of the medial meniscus surgery, and
arthritis from degenerative joint disease (DJD)/osteoarthritis (OA), medial worse than lateral.
In a report dated April 18, 2017, Dr. Nathan Hammel, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA), reviewed the statement of accepted facts (SOAF) and
2

medical records. He noted that appellant sought authorization for an arthroscopy and
meniscectomy for the right knee. The DMA opined that there was no causal relationship between
the accepted right ankle sprain and the proposed arthroscopy and meniscectomy of the right knee.
He noted that the MRI scan did not demonstrate clear evidence of a meniscal tear, appellant had
not reported symptoms suggestive of a tear, he had a prior history of right knee arthroscopy, and
he was obese. The DMA further opined that the proposed surgical procedures were not medically
necessary.
By decision dated May 25, 2017, OWCP denied appellant’s claim for a recurrence of
disability finding that the medical evidence he submitted failed to establish that his accepted
December 5, 2016 employment injury had worsened to the extent that he was disabled from his
work duties.
On June 22, 2017 appellant, through his then counsel, requested an oral hearing before an
OWCP hearing representative which was held on November 17, 2017.
In a June 19, 2017 report, Dr. Nixon noted that appellant sustained a work-related right
ankle injury on December 5, 2016. He indicated that appellant was prescribed a CAM walker boot
for his ankle condition and reported experiencing increasing right knee pain with use of the boot.
Dr. Nixon advised that the right knee injury was causally related to the ankle injury as it had been
aggravated due to the sprain and the use of the CAM walker boot. In reports dated October 23,
2017, he noted that after wearing the CAM walker boot for the right ankle appellant developed
increasing right knee pain. Dr. Nixon advised that appellant had prior treatment for right patella
femoral arthritic changes and the most recent MRI scan revealed chondromalacia and an
abnormality of the meniscus.
By decision dated January 26, 2018, OWCP’s hearing representative vacated the April 26
and May 25, 2017 decisions and remanded the case for further medical development. She
determined that appellant submitted sufficient medical evidence from Dr. Nixon supporting that
he injured his right knee or aggravated a preexisting right knee condition causally related to the
December 5, 2016 employment injury and that further development was merited. The hearing
representative instructed OWCP to refer appellant for a second opinion evaluation.
On February 13, 2018 OWCP referred appellant, the case file, a SOAF, and a series of
questions to Dr. Mysore S. Shivaram, a Board-certified orthopedic surgeon, for a second opinion
examination and an opinion on appellant’s employment-related conditions and disability.
Appellant continued to submit reports from Dr. Nixon dated from January 24 to March 28,
2018, in which he diagnosed right knee pain, probable meniscal tear, patellofemoral
chondromalacia, and right ankle pain. Dr. Nixon opined that appellant’s right knee injury was
causally related to his accepted ankle injury and recommended right knee arthroscopic surgery.
In a March 5, 2018 medical report, Dr. Shivaram described appellant’s December 5, 2016
employment injury, noting that he stepped on a curb and slipped injuring his right ankle. He
diagnosed mild right ankle sprain, sprain of the right Achilles tendon, both resolved, and
degenerative arthritis of the right knee and right big toe. Dr. Shivaram indicated that appellant had
no complaints of right knee symptoms until two and a half months following the ankle injury at

3

work. He further noted that MRI scan findings demonstrated significant degenerative changes
involving the medial compartment and patellofemoral joint of the right knee suggesting a
preexisting right knee condition. Dr. Shivaram opined that, based on the available medical records,
appellant sustained a mild sprain of the right ankle and right Achilles tendon which should have
resolved by March 5, 2017. He determined appellant’s right knee problems were unrelated to the
December 5, 2016 employment injury. In an addendum report, Dr. Shivaram opined that the use
of a CAM walker was not responsible for the onset of right knee pain. He noted appellant’s
symptoms were secondary to preexisting degenerative arthritis of the right knee and there was
insufficient evidence to support that the CAM boot contributed to the knee condition.
Dr. Shivaram opined that there was no relationship between the employment injury and the right
knee condition.
In a letter dated June 12, 2018, OWCP advised appellant that a conflict in medical opinion
existed between Dr. Shivaram, OWCP’s second opinion examiner, and Dr. Nixon, appellant’s
treating physician, regarding whether the right knee condition was causally related to the
December 5, 2016 employment injury. It referred him, along with the case record, a list of
questions, and a SOAF, to Dr. David A. Fetter, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In reports dated April 25 to August 29, 2018, Dr. Nixon noted that appellant remained
symptomatic with right knee pain on posterior lateral and anteromedial aspect of the knee. He
diagnosed right knee medial meniscus tear and right knee chondromalacia and again recommended
arthroscopic surgery.
On August 17, 2018 the employing establishment offered appellant a sedentary limitedduty position for five hours a day. Appellant accepted the position.
In a September 6, 2018 report, Dr. Fetter described a history of the December 5, 2016
employment injury, noted his review of the medical reports, and reported appellant’s continued
complaints. Upon physical examination of appellant’s lower extremity there was mild antalgic
gait, negative effusion and swelling of either knee, no right ankle instability, and intact motor and
sensory examination of the lower extremities other than global decreased right foot sensation.
Dr. Fetter noted that x-rays of the knees and ankles revealed degenerative changes. He reported
diagnoses of right ankle sprain resolved, preexistent degenerative right knee condition not caused
by the employment injury, and right gastrocnemius muscle weakness, etiology undetermined.
Dr. Fetter opined that appellant sustained a temporary work-related right ankle sprain which
resolved on March 5, 2017. He concluded that appellant’s right knee condition was not related to
the December 5, 2016 employment injury. Dr. Fetter returned appellant to work regular duty
without restrictions.
OWCP subsequently received a July 7, 2015 operative report from Dr. Nixon, who
performed an arthroscopy of the right knee with chondroplasty and limited synovectomy. He
provided post-surgical diagnoses of right knee patellofemoral chondromalacia and right knee
synovitis.
On July 27, 2018 Dr. Nixon noted that appellant presented with persistent right knee pain
localized in the posterolateral and anterior aspect of the knee. He diagnosed right knee pain with
4

patellofemoral chondromalacia and possible meniscus tear. Dr. Nixon provided work restrictions
of primarily sedentary work due to limitations on standing and walking. He recommended
arthroscopic surgery.
In a September 26, 2018 report, Dr. Nixon treated appellant for right knee pain, slightly
improved since the last visit. He reported standing and walking limits which prevented him from
his full activities. Dr. Nixon diagnosed right knee medial meniscus tear and right knee
chondromalacia and again recommended arthroscopic surgery.
Appellant was treated by Dr. Dana Tarandy, a Board-certified orthopedist, on October 23,
2018 who returned him to full-duty work on November 3, 2018. Dr. Tarandy noted that appellant
was scheduled to have surgery on November 21, 2018 and would be off work for 8 to 12 weeks.
On January 18, 2019 appellant filed a Form CA-7 for disability from work for four hours
per day for the period December 8, 2018 through January 18, 2019. He filed a Form CA-7 for
disability from work for four hours per day for the period January 19 through February 1, 2019.
In development letters dated January 29 and February 12, 2019, OWCP requested that
appellant submit additional information to support his claim for compensation beginning
December 8, 2018, including medical evidence establishing that his partial disability was due to
the accepted condition for the period claimed. It afforded him 30 days to respond. No additional
evidence was received.
By decision dated March 1, 2019, OWCP denied appellant’s claim for compensation for
the period December 8, 2018 through January 18, 2019. It indicated that on January 29, 2019 he
was instructed to submit medical evidence supporting disability during the period claimed within
30 days, but he failed to respond.
By decision dated March 15, 2019, OWCP denied appellant’s claim for compensation for
the period January 19 through February 1, 2019. It indicated that on February 12, 2019 he was
instructed to submit medical evidence supporting disability during the period claimed within 30
days, but he failed to respond.
By decision dated April 15, 2019, OWCP denied appellant’s request to expand the
acceptance of his claim to include a right knee condition finding the special weight of medical
evidence rested with the opinion of Dr. Fetter, the impartial medical examiner, who opined in a
September 6, 2018 report that the right knee condition was not causally related to the December 5,
2016 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.3 Under FECA the
2

Id.

3
M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); see also
Nathaniel Milton, 37 ECAB 712 (1986).

5

term disability means incapacity, because of an employment injury, to earn the wages that the
employee was receiving at the time of injury.4 For each period of disability claimed, the employee
has the burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.5 Whether a particular injury caused an employee to be disabled from
employment and the duration of that disability are medical issues which must be proven by the
preponderance of the reliable, probative, and substantial medical evidence.6
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish entitlement to
wage-loss compensation for the periods December 8, 2018 through January 18, 2019 and
January 19 through February 1, 2019 causally related to the accepted December 5, 2016
employment injury.
In support of his claim appellant submitted reports from Dr. Nixon dated December 19,
2016 to September 26, 2018. Dr. Nixon diagnosed right ankle sprain, right knee medial meniscus
tear, and right knee chondromalacia and recommended arthroscopic surgery. Appellant also
submitted an October 23, 2018 report from Dr. Tarandy who noted that he could return to work
full duty on November 3, 2018. Dr. Tarandy also noted that appellant was scheduled to have
surgery on November 21, 2018 and would be off work for 8 to 12 weeks. These reports lack
probative value in addressing appellant’s claimed period of disability commencing December 8,
2018 as they predate the claimed period and do not specifically address or attribute the period of
disability to the accepted right ankle sprain.8 Evidence that does not address his accepted
conditions and dates of disability is insufficient to establish his claim.9
Appellant has not submitted other medical evidence to support that his claimed periods of
disability were due to the accepted ankle condition related to his December 5, 2016 employment

4

A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB
746 (2004); 20 C.F.R. § 10.5(f).
5

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

6

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

7

J.B., Docket No. 19-0715 (issued September 12, 2019).

8

D.J., Docket No. 18-0200 (issued August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).

9

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

6

injury. Therefore, the Board finds that he has not met his burden of proof to establish his wageloss compensation claim.10
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment injury must be based on a complete
factual and medical background.13 Additionally, the physician’s opinion must be expressed in
terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factor(s).14
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.15 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.16
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.17
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.18 Where OWCP has referred the case to an impartial medical examiner to resolve a

10

See K.A., Docket No. 17-1718 (issued February 12, 2018).

11

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

12

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

13

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

Id.

15
See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
16

A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).
17

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

18

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

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conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and
based upon a proper factual background, must be given special weight.19
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include an additional right knee condition as a
consequence of the accepted December 5, 2016 employment injury.
OWCP determined that a conflict in the medical opinion evidence was created between
Dr. Nixon, appellant’s treating physician, who opined that appellant’s diagnosed right knee
condition should be included in his claim, and Dr. Shivaram, OWCP’s referral physician, who
concluded that there was no medical evidence to support a causal relationship between the
December 5, 2016 employment injury and an additional right knee condition. It properly referred
appellant to Dr. Fetter for an impartial medical examination in order to resolve the conflict in
medical evidence, pursuant to 5 U.S.C. § 8123(a).
In a September 6, 2018 report, Dr. Fetter noted his review of the SOAF and the medical
record. He related appellant’s continued complaints of right ankle and right knee pain. Upon
examination of appellant’s lower right extremity, Dr. Fetter observed mild antalgic gait, negative
effusion and swelling of the bilateral knees, no right ankle instability, and intact motor and sensory
examination of the lower extremities except for decreased right foot sensation. He noted that a
right knee x-ray examination revealed degenerative changes in the right knee. Dr. Fetter diagnosed
right ankle sprain resolved, preexistent degenerative right knee condition not caused by work
injury, and right gastrocnemius muscle weakness, etiology undetermined. He concluded that the
preexistent degenerative right knee condition was not causally related to the December 5, 2016
employment injury.
The Board finds that Dr. Fetter’s opinion is entitled to the special weight of the medical
opinion evidence and establishes that appellant’s right knee condition was not causally related to
the accepted December 5, 2016 employment injury. Dr. Fetter accurately described the
employment injury and noted his review of the medical record, including the SOAF. He performed
a thorough, clinical examination and provided findings on examination. Dr. Fetter noted that
x-rays of the right knee revealed preexisting degenerative changes not causally related to the
December 5, 2016 employment injury. The Board concludes that Dr. Fetter’s opinion is entitled
to the special weight accorded an impartial medical examiner with regard to the issue of whether
the acceptance of appellant’s claim should be expanded to include a right knee condition.20 As
such, appellant has not met his burden of proof to expand the accepted conditions of his claim.
Following Dr. Fetter’s report, appellant submitted a September 26, 2018 report from
Dr. Nixon who diagnosed right knee medial meniscus tear and right knee chondromalacia and
recommended arthroscopic surgery. Similarly, an October 23, 2018 report from Dr. Tarandy noted
19

Gary R. Sieber, 46 ECAB 215, 225 (1994).

20

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

8

that appellant was scheduled to have surgery on November 21, 2018 and would be off work for 8
to 12 weeks. However, these reports are insufficient to establish the claim as the physicians did
not specifically address whether appellant’s employment activities had caused or aggravated a
diagnosed right knee condition.21 Additionally, Dr. Nixon was on one side of the conflict resolved
by Dr. Fetter. The Board has held that reports from a physician who was on one side of a medical
conflict are generally insufficient to overcome the special weight accorded to the IME, or to create
a new conflict.22 Dr. Nixon’s report is thus insufficient to overcome the special weight accorded
to Dr. Fetter’s opinion or to create a new conflict in medical opinion.23
On appeal appellant asserts that he submitted sufficient medical evidence supporting
disability for the period claimed. As explained above, he failed to submit rationalized medical
evidence establishing a causal relationship between the specific period of claimed disability and
the accepted conditions.
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 entitlement to
wage-loss compensation for the periods December 8, 2018 through January 18, 2019 and
January 19 through February 1, 2019 causally related to the accepted December 5, 2016
employment injury. The Board further finds that appellant has not met his burden of proof to
establish that the acceptance of his claim should be expanded to include an additional right knee
condition as a consequence of the accepted December 5, 2016 employment injury.

21

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
22

See S.S., Docket No. 17-1361 (issued January 8, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes,
52 ECAB 387 (2001).
23

See S.S., id.; K.R., Docket No. 16-0542 (issued December 21, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the April 15 and March 1 and 15, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, HUNTINGTOWN
POST OFFICE, Huntingtown, MD, Employer
__________________________________________

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

Docket No. 21-0298
Issued: August 26, 2021

Case Submitted on the Record

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

JURISDICTION
On December 23, 2020 appellant filed a timely appeal from a November 24, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 25, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the November 24, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 21, 2017 appellant, then a 25-year-old sales, services, and distribution
associate, filed a traumatic injury claim (Form CA-1) alleging a left knee injury on November 21,
2017 when her left knee buckled as she exited her postal vehicle and she fell to the ground while
in the performance of duty. She stopped work on November 24, 2017, but returned to limitedduty work on a full-time basis in December 2017. OWCP accepted appellant’s claim for complex
tears of the medial and lateral menisci of the left knee and on March 30, 2018 she stopped work
and underwent OWCP-authorized left knee surgery, including anterior cruciate ligament
reconstruction, medial meniscal repair, and partial lateral meniscal debridement. OWCP paid
appellant wage-loss compensation for disability from work on the supplemental rolls commencing
March 30, 2018 and on the periodic rolls commencing February 3, 2019.
On November 9, 2019 appellant began working in a limited-duty position, which required
standing for one hour per day and walking for one and a half hours per day. She stopped work on
November 18, 2019 and filed a notice of recurrence (Form CA-2a) on December 6, 2019, alleging
that she sustained a recurrence of disability on November 18, 2019 due to her November 21, 2017
employment injury.3
In a December 12, 2019 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim. It afforded her 30 days to respond.
In response, appellant submitted statements regarding the progression of her left leg
symptoms. She also submitted a December 4, 2019 report from Dr. Easton Manderson, a Boardcertified orthopedic surgeon, who indicated that he had been treating appellant for left knee pain
and that she had been unable to return to work for the period November 19 through 22, 2019.
Dr. Manderson advised that appellant could not lift more than 20 pounds. In a separate
December 4, 2019 report, he noted that appellant would not be able to work for the period
December 4 through 16, 2019 and could not lift more than 20 pounds.
In a December 18, 2019 report, Dr. Manderson indicated that appellant had been under his
care for a complex tear of the medial meniscus and noted that she was allowed to return to work
on January 3, 2020, but could not engage in bending, prolonged standing, or lifting more than 20
pounds. He indicated, “[p]lease allow patient to work light status due to knee pain.” In an undated
report, Dr. Manderson advised that appellant had been unable to work for the period January 3
through 24, 2020 and indicated that she could only perform light-duty work due to knee pain.
Dr. Christopher K. Riley, a Board-certified family practitioner, noted in a January 15, 2020
report, that appellant indicated that she continued to experience complications from her left knee
surgery. He diagnosed lower back nerve impingement, neuropathy, and patellofemoral symptoms.
On a “patient active problem list” Dr. Riley listed the conditions of current left knee meniscus tear
and left knee anterior cruciate ligament tear. In a partially legible February 7, 2020 report, Dr. Eric
Yakish, a Board-certified orthopedic surgeon, diagnosed: status post left knee surgery with mild
increased signal and heterogeneity of the posterior medial meniscus; minimal hypertrophic
3
Appellant inadvertently indicated that she sustained a recurrence of disability on November 14, 2019, but she did
not actually stop work until November 18, 2019.

2

changes without significant cartilage thinning; slight lateral tibiofemoral cartilage heterogeneity;
and borderline joint effusion with mild edema at Hoffa’s fat pad and small inferior retropatellar
bursa. On February 10, 2020 he provided the same diagnoses. Appellant also submitted a partially
legible February 7, 2020 report from Dr. Eharuna Tychus, a Board-certified internist, who
indicated that appellant had recently been diagnosed with patellofemoral syndrome.
By decision dated February 19, 2020, OWCP denied appellant’s recurrence claim, finding
that she had not submitted sufficient medical evidence to demonstrate that her November 18, 2019
work stoppage was causally related to her accepted November 21, 2017 employment injury. It
explained that appellant did not establish that her disability was “due to a material
change/worsening” of her employment-related conditions.
In a February 27, 2020 letter, appellant requested that her claim be “upgraded” to include
acceptance of patellofemoral syndrome and nerve impingement. In a March 19, 2020 letter, she
requested reconsideration of OWCP’s February 19, 2020 decision. Appellant submitted an
October 29, 2019 report from Dr. Manderson who provided a clinical impression of torn medial
meniscus and indicated that appellant could perform light-duty work for six hours per day.
Dr. Manderson noted, “Once the cause of her present disabling pain is identified and properly
treated after proper rehabilitation she will be able to return to regular duty.” In an October30, 2019
report, he recommended work restrictions, including lifting no more than 20 pounds. On
February 11, 2020 Dr. Manderson indicated that appellant could perform light-duty work with
restrictions including lifting no more than 20 pounds. In a February 13, 2020 report, Dr. Carl
Cappelletti, a physical medicine and rehabilitation physician, indicated that he administered a
steroid injection in appellant’s left knee at the Hoffa’s fat pad.
By decision dated June 25, 2020, OWCP denied modification of its February 19, 2020
decision. It also found that appellant had not met her burden of proof to expand the acceptance of
her claim to include the additional conditions of patellofemoral syndrome and nerve impingement.
On November 17, 2020 appellant requested reconsideration of the June 25, 2020 decision.
In a November 17, 2020 statement, she again argued that her claim should be “upgrade[d]” to
include the acceptance of patellofemoral syndrome and nerve impingement.
Appellant submitted several job position descriptions from 2019 and 2020 with related
offer letters, a January 22, 2019 administrative document concerning her medication regimen and
upcoming medical appointments, a March 19, 2020 letter regarding her attempts to obtain medical
documentation, an October 26, 2020 letter regarding vocational rehabilitation placement, a
document containing brief summaries of Board cases concerning the termination of compensation,
a portion of a document discussing federal health benefits, and several letters concerning the
progress of her reconsideration request. She also submitted an unsigned July 24, 2020 letter from
an unidentified healthcare provider noting appellant’s history of injury and that her symptoms were
aggravated during the period November 9 to December 4, 2020.
By decision dated November 24, 2020, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record9 and the submission of evidence or argument, which
does not address the particular issue involved does not constitute a basis for reopening a case.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant neither established that OWCP erroneously applied or interpreted a specific
point of law, nor did she advance a relevant legal argument not previously considered by OWCP.
In a November 17, 2020 statement, appellant argued that her claim should be “upgrade[d]” to
4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6
20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2020).
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). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

8

20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
9

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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include the acceptance of patellofemoral syndrome and nerve impingement. However, OWCP had
previously considered and rejected this same argument when it previously denied appellant’s
claim. The Board has held that the submission of evidence or argument, which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.11
Appellant also submitted a document containing brief summaries of Board cases concerning the
termination of compensation, but this document of general application would not be relevant to
the issues of the present case. The Board has held that the submission of evidence or argument,
which does not address the particular issue involved, does not constitute a basis for reopening a
case.12
Accordingly, the Board finds that appellant is not entitled to a review of the merits based
on either the first or second requirement under 20 C.F.R. § 10.606(b)(3).
On reconsideration appellant also did not submit probative medical evidence despite the
fact that the underlying issues of this case, recurrence of disability and expansion of the accepted
conditions, are medical in nature. She submitted an unsigned July 24, 2020 letter from an
unidentified healthcare provider, but this document does not constitute medical evidence under
FECA as there is no indication that the author is a physician.13 Appellant also submitted other
documents, including several job position descriptions from 2019 and 2020 with related offer
letters, a January 22, 2019 administrative document concerning her medication regimen and
upcoming medical appointments, a March 19, 2020 letter regarding her attempts to obtain medical
documentation, an October 26, 2020 letter regarding vocational rehabilitation placement, a portion
of a document discussing federal health benefits, and several letters concerning the progress of her
reconsideration request. These documents also are not relevant to the underlying issues of the case
and, thus, would not require reopening of appellant’s case for merit review. As noted above, the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.14 Therefore, appellant also failed to satisfy the third
requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

See supra note 9.

12

See supra note 10.

13
See S.D., Docket No. 21-0292 (issued June 29, 2021); C.B., Docket No. 09-2027 (issued May 12, 2010) (a
medical report may not be considered as probative medical evidence if there is no indication that the person completing
the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not
constitute probative medical evidence); Merton J. Sills, 39 ECAB 572, 575 (1988).
14

See supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Shafter, HI , Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0733
Issued: May 27, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
On March 2, 2021 appellant filed an appeal from an August 19, 20141 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0733.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180th day following the August 19, 2014 decision was February 15, 2015. As
appellant did not file an appeal with the Board until March 2, 2021, more than 180 days after the
1

Although appellant indicated that he was appealing from an October 28, 2012 decision, the Board notes that there
is no OWCP decision issued on that date. The only OWCP decision of record is dated August 19, 2014.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3

Id. at § 501.3(e).

August 19, 2014 OWCP decision, the Board finds that the appeal docketed as No. 21-0733 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0733 is dismissed.
Issued: May 27, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2