United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belvidere, IL, Employer
__________________________________________

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

Docket No. 15-102
Issued: February 26, 2015

Case Submitted on the Record

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

JURISDICTION
On October 20, 2014 appellant filed a timely appeal from a June 11, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a lung condition in the
performance of her federal employment duties.
FACTUAL HISTORY
On February 18, 2014 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging an aggravation of her pulmonary conditions as a result of her letter carrier
duties. She specifically attributed the aggravation of pulmonary conditions to exposure to heat
and cold while working outdoors eight hours a day. Appellant first noticed the condition and
1

5 U.S.C. § 8101 et seq.

realized that it was caused or aggravated by her employment on April 1, 2010. She was last
exposed to conditions alleged to have caused or contributed to her medical condition on
December 31, 2013.
In an undated supplemental statement, appellant explained that she delivered mail in
extreme cold and hot weather conditions. During the winter months, she was outside for over
eight hours delivering the mail. In extremely cold weather, appellant wore a mask but stated it
was hard to keep her inhaler from freezing. In the summer months, she tended to use her inhaler
more than twice a day because of exposure to flowers, cut grass, and bees/wasps. Appellant
alleged that the cold and hot weather exposure made it hard for her to breathe. She developed
pneumonia in January 2010, but did not know that she had it. Appellant believed it was just a
bad cough from working outside. After undergoing some testing, she discovered that she had
pneumonia along with lung scarring and problems. Appellant used the inhaler to control her
asthma. She denied smoking or ever having any pulmonary conditions prior to working as a
letter carrier.
Appellant submitted medical evidence.2
In a January 16, 2010 report, Dr. Shobha S. Iyengar, a Board-certified internist, noted that
appellant had hoarseness of voice for the last five to seven days and was feeling depressed as her
job had changed from working inside the post office to a city mail carrier. A diagnosis of acute
rhinolarysitus and depression was provided. In a February 10, 2010 report, Dr. Iyengar noted a
history of appellant’s cough and runny nose when exposed to cold for a few weeks, that she is a
nonsmoking mail carrier, and that she gets shortness of breath when walking. He diagnosed
cough when exposed to cold weather, shortness of breath when exposed to cold weather, and
chronic allergic rhinitis was provided. In a March 1, 2010 report, Dr. Iyengar diagnosed
exacerbation of reactive airway disease and heart burn. In a March 25, 2010 report, he
diagnosed positive mycoplasma antibodies and referred appellant to a pulmonologist.
In an April 1, 2010 report, Dr. Fredric C. Kullberg, a Board-certified internist, noted
appellant was a lifelong nonsmoker seen for evaluation of persistent paroxysmal cough that
developed in December 2009 which she attributed to the time she changed her occupational
duties from inside postal clerk to outside letter carrier. He reported that her symptoms persisted
throughout the winter. Appellant had no previous history of asthma although she developed
seasonal allergies and a runny nose and itchy eyes approximately four years ago for the first
time. Dr. Kullberg diagnosed parosysmal cough, probably multifactorial, including a major
component from acute and chronic rhinitis with postnasal drip syndrome, but likely also related
to underlying infiltrative process in the lungs of unknown age with a positive mycoplasma
antibody lite and also likely atypical pneumonia due to mycoplasma. An impression of cystic
infiltrate changes in the upper lobe was provided.

2

The evidence included diagnostic studies and laboratory reports from March 9, April 1, June 10 and 19, July 8,
and June 22, 2010, January 4, 2014; March 4, 23, and 24, and June 10, 2010, July 9, 2012 chest x-ray reports,
March 2003 and March 30, 2010, May 5, 2010, July 9, 2012, and January 7, 2013 computerized tomography (CT)
chest report, May 2005 and December 10, 2010 June 2, 2011 chest CTs; a June 11, 2010 surgical pathology report;
May 25 and December 15, 2010, January 5 and July 12, 2012, February 26, 2013 and January 31, 2014 progress
notes from an unidentified provider; and an undated medication information note.

2

On June 10, 2010 Dr. Kullberg performed a flexible fiberoptic bronchoscopy with
transbronchial biopsy and bronchoalveolar lavage which did not provide a specific diagnosis. In
a December 15, 2010 report, he stated that the source of appellant’s interstitial lung disease
remained obscure and he believed eosinophilic granuloma was still a consideration along with
possible “burnt out” sarcoidosis or previous hypersensitivity pneumonitis.
In a January 5, 2012 report, Dr. Kullberg noted that appellant reported her breathing had
done well recently and she had little trouble over the summer with the hot weather. Appellant
still had some cough and postnasal drainage but this was better as well. Examination and
diagnostic findings were provided. Dr. Kullberg noted the differential considerations would
include Langerhan cell histiocytosis, old sarcoidosis, connective tissue disease or previously
hypersensitivity pneumonitis.
Dr. Kullberg reported on July 12, 2012 that appellant had been having considerable
difficulty doing her mail route with the very hot weather. He noted that she had gained almost
20 pounds in weight since January which was probably contributing to her difficulty.
Examination findings were noted as well as suggestions to help appellant lose weight.
In a February 11, 2014 report, Dr. Kullberg indicated that he had been treating appellant
for significant pulmonary problems since April 2010. Appellant suffered from reactive airways
disease/asthma which was well controlled along with an extensive type of interstitial lung
disease in her upper lung zones with interlobular and interlobar septal thickening and some
honeycomb formation which had not progressed radiographically but was quite extensive since
2010 and could represent one of several idiopathic pulmonary conditions including eosinophilic
granuloma, sarcoidosis, or hypersensitivity pneumonitis. Dr. Kullberg opined that appellant was
very sensitive to hot or cold ambient weather conditions, and either extreme could cause severe
exertional dyspnea. This could be a significant determent in her work as a postal letter carrier.
In a letter dated March 19, 2014, OWCP advised appellant that the evidence of record
was insufficient to establish that her pulmonary conditions were causally related to her work as a
mail carrier. Appellant was afforded 30 days to submit a response to OWCP’s questions
regarding the factual aspects of the claim and to submit medical reports from an attending
physician, which included an explanation of how her work activities caused, or aggravated her
medical conditions.
In a March 27, 2014 report, Dr. Kullberg advised that he had been following appellant
since May 2010 when she was seen in pulmonary consultation regarding severe paroxysmal
cough. He noted her medical course and stated that the exact nature of the bilateral upper lobe
infiltrates had not been clearly defined. The transbronchial biopsy did not show specific
pathology. However, the evidence suggested sarcoidosis or Langerhans cells histiocytosis.
Dr. Kullberg noted that appellant had declined to undergo a surgical lung biopsy, but that there
may not have been great therapeutic value in this approach. Appellant had been treated for
suspected reactive airways with significant improvement in cough and wheeze, although she
remained very sensitive to the effects of cold air, which produced cough, marked shortness of
breath, and some wheezing. She improved dramatically when she was off of work for a month.
Dr. Kullberg noted that appellant’s clinical course had been one of improved exertional
dyspnea using prescribed medicine and inhaler. He opined that she suffered from reactive
3

airways/asthma, although spirometry had not shown clear-cut obstructive impairment. Appellant
suffered extensive unexplained upper lobe fibrotic change, which had not progressed in four
years, and may be due to Langerhans cell history of cytosis, hypersensitivy pneumonitis, or
sarcoidosis. Dr. Kullberg opined that appellant’s condition was not caused by her employment,
but rather from environmental factors.
In a decision dated June 11, 2014, OWCP denied the claim on the grounds that fact of
injury had not been met because appellant had failed to respond to the March 19, 2014
development questionnaire. It further found that the medical evidence did not establish a
diagnosed medical condition causally related to the work injury or event.
LEGAL PRECEDENT
An employee who claims benefits under FECA has the burden of establishing the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish fact of injury in an occupational disease claim, an employee must submit:
(1) a factual statement identifying employment factors alleged to have caused or contributed to
the presence or occurrence of the disease or condition; (2) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6 An
injury does not have to be confirmed by eyewitnesses in order to establish the fact that an
employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.7 An employee has not met his or her burden of proof establishing
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
3

C.S., Docket No. 08-1585 (issued March 3, 2009).

4

S.P., 59 ECAB 184 (2007).

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

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

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doubt on an employee’s statement in determining whether a prima facie case has been
established.8
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9 Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11
ANALYSIS
Appellant alleged her pulmonary conditions were aggravated due to her work duties as a
mail carrier requiring her to be exposed to heat and cold, eight hours a day. OWCP denied her
claim, finding insufficient factual and medical evidence to establish that she sustained a medical
condition as a result of those employment duties. The Board finds that appellant’s duties as a
letter carrier did expose her to hot and cold weather while delivering mail but she has failed to
establish these employment factors caused or aggravated her diagnosed pulmonary conditions.
In reports dated January to March 2010, Dr. Iyengar diagnosed cough, shortness of
breath, chronic allergic rhinitis, and exacerbation of reactive airways disease. Cough and
shortness of breath is generally a description of a symptom, not a firm medical diagnosis.12
While Dr. Iyengar diagnosed medical conditions of chronic allergic rhinitis and exacerbation of
reactive airways disease during exposure to cold weather, his medical reports are not supported
by medical rationale to explain the nature of the relationship between the diagnosed condition
and the employment factors identified in this case, namely how hot and cold temperature
exposure resulted in the diagnosed condition.13
Dr. Kullberg noted appellant’s symptoms, his examination findings, and results of
objective testing. However, he could not relate the cause of her persistent parosysmal cough or
limited upper lobe interstitial lung disease to appellant’s federal duties. Rather, Dr. Kullberg
stated the source of her interstitial lung disease remained obscure. He indicated that her
interstitial lung disease may be caused by eosinophilic granuloma, sarcoidosis, or
hypersensitivity pneumonitis. While Dr. Kullberg stated that appellant’s exposure to hot or cold
ambient weather conditions could cause severe exertional dyspnea, which could be a significant
8

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

9

J.Z., 58 ECAB 529 (2007).

10

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

See E.B., Docket No. 13-1705 (issued January 8, 2014).

13

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).

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determent in her letter carrier work, failed to provide a rationalized opinion explaining the causal
relationship between appellant’s interstitial lung disease and employment.14
The remainder of the medical evidence, including reports of diagnostic testing and
studies, are insufficient to establish the claim as they fail to provide an opinion on the causal
relationship.
On appeal, appellant contends she did not have any health issues before she became a city
letter carrier. However, the medical evidence of record is insufficient to establish a causal
relationship between her diagnosed medical conditions and the duties of her federal employment.
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 her burden of proof to establish that she
sustained a lung condition in the performance of her federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, MID HUDSON
PROCESSING & DISTRIBUTION CENTER,
Newburgh, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0727
Issued: January 26, 2021

Case Submitted on the Record

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

JURISDICTION
On February 13, 2020 appellant, through counsel, filed a timely appeal from a January 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 21, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $33,695.97 during the period September 1, 2016
through December 7, 2019, for which she was not at fault, as she concurrently received Social
Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation
benefits without appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$569.81 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On January 10, 2001 appellant, then a 48-year-old small package and bundle sorter clerk,
filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained a burning
sensation in her back side, in her elbows, and across her shoulders when she was bumped offbalance and fell while in the performance of duty. OWCP initially accepted the claim for lumbar
strain, and later expanded acceptance of the claim to include permanent aggravation of
degenerative osteoarthritis of the lumbar spine. Appellant stopped work on January 10, 2001.
OWCP paid her compensation on the periodic rolls effective June 17, 2001. By decision dated
June 14, 2007, it reduced appellant’s compensation based on her capacity to earn wages in the
constructed position of cashier.
A January 29, 2006 Notification of Personnel Action (PS Form 50) listed appellant’s
retirement coverage as the Federal Employees Retirement System (FERS). On an EN1032 form
dated August 15, 2016, appellant replied “No” as to whether she was in receipt of SSA benefits as
a part of an annuity for federal service. On EN1032 forms dated August 23, 2017, August 16,
2018, and August 21, 2019, appellant replied “Yes,” indicating that she had received SSA benefits
as part of an annuity for federal service.
On October 8, 2018 OWCP requested information from SSA regarding appellant’s dual
benefits.
On November 25, 2019 OWCP received a completed FERS/SSA dual benefits calculation
form from SSA dated November 5, 2019, wherein SSA calculated appellant’s SSA age-related
retirement benefit rates with and without a FERS offset. The form indicated that the SSA rate with
FERS was $1,368.00 effective September 2016, $1,373.00 effective December 2016, $1,373.00
effective July 2017, $1,400.00 effective December 2017, and $1,439.50 effective December 2018.
The form further indicated that the SSA rate without FERS was $532.00 effective September 2016,
$534.00 effective December 2016, $534.00 effective July 2017, $544.00 effective December 2017,
and $559.50 effective December 2018. The SSA representative noted that appellant began
receiving age-related retirement benefits in September 2016.
In a letter dated December 18, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her SSA age-related retirement benefits attributable to
federal service, her FECA wage-loss compensation had been adjusted.
OWCP completed a FERS offset calculation form on December 18, 2019. It determined
the 28-day FERS offset amount for the days in each period and computed a total overpayment of
$33,695.97. This form indicated that: from September 1 through November 30, 2016, appellant
2

received an overpayment of compensation in the amount of $2,508.00; from December 1, 2016
through June 30, 2017, she received an overpayment of compensation in the amount of $5,863.78;
from July 1 through November 30, 2017, she received an overpayment of compensation in the
amount of $4,231.88; from December 1, 2017 through November 30, 2018, she received an
overpayment of compensation in the amount of $10,300.22; and from December 1, 2018 through
December 7, 2019, she received an overpayment of compensation in the amount of $10,792.09.
On December 19, 2019 OWCP notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $33,695.97 as she had received FECA
wage-loss compensation benefits for the period September 1, 2016 through December 7, 2019 that
had not been reduced by the portion of her SSA age-related retirement benefits attributable to her
federal service, and that this portion of her SSA benefit was a prohibited dual benefit. It further
advised her of its preliminary determination that she was not at fault in creating the overpayment.
OWCP requested that appellant complete the enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. Additionally, it notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
On January 5, 2020 appellant, through counsel, requested that OWCP render a decision
based upon the written evidence regarding possible waiver of the overpayment. In an attached
Form OWCP-20, appellant advised that her monthly income included $3,091.54 in “comp” and
$1,304.00 in SSA benefits, for a total monthly income of $4,395.54. She further advised that her
monthly expenses included $650.00 for housing, $400.00 for food, $100.00 for clothing, $850.00
for utilities, and $650.00 for other expenses, for a total of $2,650.00 in monthly expenses.
Appellant indicated that she had assets in checking and savings accounts of $95,000.00 and
$67,000.00 in a Thrift Savings Plan (TSP) account. No documentation of her income, expenses,
or assets was provided.
By decision dated January 21, 2020, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $33,695.97 because the
SSA/FERS offset was not applied to FECA payments for the period September 1, 2016 through
December 7, 2019. It further found that she was not at fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment, because she had assets over $6,200.00 and
because she had not shown she needed substantially all of her current net income to meet current
ordinary and necessary living expenses. OWCP required repayment of the overpayment by
deducting $569.81 from appellant’s continuing compensation benefits beginning March 1, 2020.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 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.5

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

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Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$33,695.97 because she concurrently received FECA wage-loss compensation benefits and SSA
age-related retirement benefits for the period September 1, 2016 through December 7, 2019
without appropriate offset.
The record indicates that, while appellant was receiving wage-loss compensation under
FECA, she also received SSA age-related retirement benefits attributable to her federal service
during the relevant period. A claimant cannot receive both compensation for wage loss and SSA
age-related retirement benefits attributable to federal service for the same period.8 Consequently,
the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS and without FERS for specific periods
from September 1, 2016 through December 7, 2019. OWCP provided its calculations of the
amount that should have been offset during the relevant period based on information provided by
SSA for the period September 1, 2016 through December 7, 2019 in its December 19, 2019
preliminary overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period September 1, 2016 through December 7, 2019 and finds that an overpayment of
compensation in the amount of $33,695.97 was created.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.10 Section 10.438 of OWCP’s regulations provides that the individual who received
6

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
7

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

8

See D.M., Docket No. 19-1369 (issued June 30, 2020).

9

See L.W. supra note 6; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
10

5 U.S.C. § 8129.

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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.11
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.12 Section 10.436 provides that 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 expense, 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.13 For waiver of
recovery of the overpayment under the defeat the purpose of FECA standard, appellant must show
that he or she needs substantially all of his or her current income to meet current ordinary and
necessary living expenses, and that assets do not exceed the resource base.14 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16 It considered
appellant’s financial information to determine if recovery of the overpayment would defeat the
purpose of FECA.
The Board finds that OWCP properly determined that appellant’s assets exceeded the
relevant resource base. OWCP found that, after its review of the documents of record, appellant’s
assets exceeded the resource base of $6,200.00 for an individual as provided in OWCP’s
procedures.17 It was therefore unnecessary for OWCP to consider whether her monthly income

11

20 C.F.R. § 10.438.

12

Id. at §§ 10.434-10.437.

13

Id. at § 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).
14

Id.

15

Id.

16

Id. at § 10.436.

17

See supra note 14 at Chapter 6.400.4.a(2) (September 2018).

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exceeds her monthly ordinary and necessary expenses by more than $50.00.18 Appellant did not
establish that she was entitled to waiver on the basis of defeating the purpose of FECA.19 There
is also no evidence to support that appellant gave up a valuable right or changed her position for
the worse, in reliance on her FECA compensation. Appellant, therefore, did not establish that
recovery of the overpayment was against equity and good conscience.20
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.21
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.22
Section 10.441 of OWCP’s regulations provides that, when an overpayment of
compensation 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 the 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 hardship.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$569.81 from appellant’s continuing compensation every 28 days.
The record supports that, in requiring repayment of the overpayment by deducting $569.81
from appellant’s compensation payments every 28 days, OWCP took into consideration the
financial information she submitted as well as the factors set forth in 20 C.F.R. § 10.441 and found
that this method of recovery would minimize resulting hardship. Therefore, OWCP properly
required recovery of the overpayment by deducting $569.81 from appellant’s continuing
compensation every 28 days.24

18

Id. at Chapter 6.400.4.a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
19

See R.D., Docket No. 19-1598 (issued April 17, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020).

20

Id.

21

Id.

22

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

23

Id.

24

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$33,695.97 for the period September 1, 2016 through December 7, 2019, for which she was not at
fault, because she concurrently received FECA benefits and SSA age-related retirement benefits
without appropriate offset. The Board further finds that OWCP properly denied waiver of recovery
of the overpayment and properly required recovery of the overpayment by deducting $569.81 from
her continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kansas City, MO,
Employer
__________________________________________

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)

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

Docket No. 20-1396
Issued: November 22, 2021

Case Submitted on the Record

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

JURISDICTION
On July 20, 2020 appellant, through counsel, filed a timely appeal from a January 23, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 23, 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
medical benefits, except for those related to her left knee medial meniscus tear, effective
December 17, 2015; (2) whether appellant has met his burden of proof to establish continuing
residuals on or after December 17, 2015.
FACTUAL HISTORY
On February 23, 2012 appellant, then a 51-year old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on February 19, 2012 she sustained injury to her hand, knees, ankles,
and body when she caught her foot on a mail tray and fell to the floor while in the performance of
duty. She did not stop work, but she began working in a limited-duty position without wage loss
on February 20, 2012. OWCP initially accepted appellant’s claim for sprains of the knees and
ankles.4
On December 17, 2012 OWCP expanded appellant’s accepted conditions to include a neck
sprain, sprains of the heels, and aggravation of L4-5 disc protrusion, and aggravation of L4-5 and
L5-S1 annular tears. On February 1, 2013 it expanded her accepted conditions to include
aggravation of L5-S1 disc protrusion and bilateral wrist sprains. On June 5, 2013 OWCP expanded
her accepted conditions to further include medial meniscus tear of the left knee. On July 16, 2013
Dr. Prem Parmar, a Board-certified orthopedic surgeon, performed OWCP-authorized left knee
surgery, including arthroscopy with debridement of patellar chondromalacia and plice excision.5
In September 2013, Dr. Parmar recommended that appellant undergo arthroscopic surgery on her
right knee, which he believed was necessitated by residuals of her accepted employment injury.
On October 11, 2013 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions to Dr. Edward J. Prostic, a Board-certified orthopedic surgeon, for
a second opinion examination and evaluation. It requested that Dr. Prostic indicate whether
appellant had continuing employment-related residuals and whether right knee surgery was
necessitated by the February 19, 2012 employment injury.
In a November 4, 2013 report, Dr. Prostic discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant complained of pain
in her neck, back, and all extremities, and that she exhibited limited cervical motion and abnormal
quadriceps angles of the knee, greater on the right than on the left. Dr. Prostic advised that he
doubted that right knee surgery “would be helpful at this time” and noted that “the current
difficulties in the right knee are very likely the same as in the previous ‘right knee sprain.’”
In a November 6, 2013 report, Dr. Parmar indicated that appellant continued to have left
knee symptoms after her July 16, 2013 surgery, and that she had some chondromalacia of her right
4

Under a separate prior claim, assigned OWCP File No. xxxxxx289, OWCP accepted that on July 3, 2003 appellant
sustained a bulging disc at L5-S1. Under another separate prior claim, assigned OWCP File No. xxxxxx344, OWCP
accepted that on August 10, 2005 appellant sustained a left ankle sprain, and sprain/strains of the right shoulder/arm,
right knee/leg, and of the thoracic and lumbar regions. OWCP administratively combined the files for OWCP File
Nos. xxxxxx289, xxxxxx344, and xxxxxx300, designating the latter as the master file.
5

Appellant stopped work for the period July 15 through 29, 2013 and OWCP paid wage-loss compensation for
disability from work on the supplemental rolls for this period.

2

knee due to the February 19, 2012 fall at work. He also advised that appellant continued with
“issues with her wrists and ankles,” which were related to the February 19, 2012 employment
injury.
OWCP requested a supplemental report from Dr. Prostic to clarify his opinion on the issue
of appellant’s employment-related residuals. In a November 8, 2013 report, Dr. Prostic noted, “I
have no objective evidence to indicate that the left ankle sprain, right ankle sprain, left heel sprain,
right heel sprain, right wrist sprain, left wrist sprain, cervical spine sprain, or lumbar spine
aggravation of L4-5 and L5-S1 disc protrusion and annular tears is [sic] still active.”
On January 8, 2014 OWCP determined that there was a conflict in the medical opinion
evidence regarding whether appellant had residuals of her accepted employment injuries , other
than her left knee employment injury/conditions, which was determined to have not resolved. In
order to resolve the conflict, it referred appellant, along with a SOAF and series of questions to
Dr. David J. Clymer, a Board-certified orthopedic surgeon, for an impartial medical examination
and evaluation. OWCP requested that Dr. Clymer evaluate whether appellant required right knee
surgery due to employment-related residuals and whether her various other accepted employment
conditions, other than those relating to the left knee, had resolved.
In a February 25, 2014 report, Dr. Clymer discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant had a primary
complaint of right knee pain, but also had moderate generalized areas of discomfort in the back
and upper extremities, as well as mild generalized irritability in her right ankle and hind foot.
Appellant exhibited mild patellar crepitus in both knees. Dr. Clymer discussed the diagnostic
testing for appellant’s right knee and opined that appellant had minor patellofemoral
chondromalacia, which the February 19, 2012 fall at work might have aggravated. He indicated
that there was no significant localized cartilage instability, ligament injury, or meniscus tear in the
right knee and opined that, therefore, the likelihood of significant symptomatic improvement with
right knee arthroscopy was “rather low.” Dr. Clymer recommended continued conservative nonsurgical treatment for the right knee. He noted that, with regard to the multiple other areas of
sprains and strains involving the ankles, heels, wrists, neck, and lumbar spine, “I see nothing today
on my objective clinical exam[ination] nor in the history and review of records which would
suggest there is a significant ongoing problem in these areas which would require further
treatment.” Dr. Clymer further indicated, “I believe the sprains and strains in general have
resolved.” He opined that appellant could work a job that involved moderate sedentary duties and
moderate standing and walking.
In a notice dated May 20, 2014, OWCP advised appellant that it proposed to terminate her
medical benefits, except for those related to her left knee. It informed her that the proposed
termination action was justified by the well-rationalized February 25, 2014 report of Dr. Clymer,
the impartial medical specialist. OWCP advised appellant that this report carried special weight
with respect to employment-related residuals and afforded her 30 days to submit evidence
challenging the proposed termination action.
Appellant submitted additional medical evidence, including reports of Dr. Parmar from
May and June 2014.
By decision dated July 3, 2014, OWCP terminated her medical benefits except for those
related to her left knee medial meniscus tear, effective July 3, 2014.
3

On July 22, 2014 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings of Review. A telephonic hearing was held on
February 9, 2015. By decision dated April 29, 2015, OWCP’s hearing representative reversed the
July 3, 2014 decision, finding that Dr. Clymer’s February 25, 2014 report did not contain sufficient
medical rationale to resolve the conflict in the medical opinion evidence regarding employmentrelated residuals. The representative remanded the case to OWCP and directed that appellant be
referred back to Dr. Clymer for additional evaluation regarding the extent of appellant’s
employment-related residuals, to be followed by the issuance of a de novo decision.
On remand OWCP referred appellant to Dr. Clymer for examination and evaluation, and
requested a supplemental medical report regarding whether appellant continues to possess one or
more of the accepted employment conditions. In an August 3, 2015 report, Dr. Clymer reported
the findings of his August 3, 2015 examination of appellant. He indicated that appellant reported
chronic neck discomfort and stiffness, chronic midback discomfort, chronic low back discomfort,
chronic bilateral hand pain/numbness/weakness, chronic bilateral knee pain, and chronic bilateral
ankle and heel discomfort. Dr. Clymer noted that, during the examination, appellant exhibited
subjective discomfort upon palpation in these regions. He provided a discussion of appellant’s
diagnostic testing, noting that it showed some degenerative processes in the neck, wrists, knees,
ankles, and low back. Dr. Clymer advised that the opinions he expressed in his February 25, 2014
report remained unchanged. He noted, “[w]hile I feel [appellant] may well have sustained various
areas of sprain and strain as a result of the work-related fall on February 19, 2012, the objective
clinical examination and multiple objective radiographic studies have not revealed evidence of any
significant structural injuries which I feel would be clearly benefited by further surgical
intervention.” Dr. Clymer indicated that appellant’s subjective symptoms were certainly
significant and diffuse, involving multiple areas, but noted that it was unlikely that any aggressive
or surgical measures would be of any clear benefit. He posited that surgical intervention at
appellant’s neck, wrists, knees, ankles, and back might even worsen her conditions in those
regions. Dr. Clymer indicated that appellant might have significant ongoing subjective
complaints, which would significantly limit the subjective sense of her ability to continue
functioning at work. He advised that a more conservative approach with encouragement, activity,
and moderate use of medications afforded the best opportunity to allow appellant to continue
functioning and working in a safe and comfortable fashion.
By decision dated December 17, 2015, OWCP terminated appellant’s medical benefits,
except for those related to her left knee medial meniscus tear, effective that same date, based on
the February 25, 2014 report of Dr. Clymer as clarified by his August 3, 2015 supplemental report.
On December 30, 2015 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings of Review. A telephonic hearing was held on
August 1, 2016. By decision dated September 14, 2016, OWCP’s hearing representative affirmed
the December 17, 2015 decision.
On March 6, 2017 appellant requested reconsideration of the September 14, 2016 decision.
She submitted a December 7, 2016 report from Dr. Parmar who reported physical examination
findings and indicated, “[i]t is my impression and still has been since I first saw her that she has
this work-related accident of February 2012. Appellant sustained injuries to both her wrists, knees,
and ankles.” In a February 7, 2017 report, Dr. Regina M. Nouhan, an osteopath and Boardcertified surgeon, indicated that appellant had a cervical disc condition and bilateral carpal tunnel
syndrome as a direct result of her work duties. In a February 16, 2017 report, Dr. Kathryn
4

Cameron, an osteopath and Board-certified family practitioner, opined that appellant had a bulging
disc at C4-5 and herniated disc at C5-6, which constituted unresolved conditions related to the
February 19, 2012 employment injury.
By decision dated November 14, 2017, OWCP denied modification of the September 14,
2016 decision.
On November 13, 2018 appellant requested reconsideration of the November 14, 2017
decision. She submitted January 17 and October 25, 2018 reports from Dr. Parmar who
maintained that appellant had a chondral injury to her right knee and bilateral ankle sprains, with
likely synovitis, which were due to her February 19, 2012 employment injury. In a June 26, 2018
report, Dr. Nouhan opined that the diagnosed conditions of bilateral carpal tunnel syndrome, left
ulnar nerve syndrome, and right wrist tendinitis were caused by the February 19, 2012 fall at work.
By decision dated January 3, 2019, OWCP denied modification of the November 14, 2017
decision.
On December 28, 2019 appellant requested reconsideration of the January 3, 2019
decision. She submitted an October 9, 2019 report from Dr. Parmar who opined that she continued
to have bilateral knee and ankle conditions related to the February 19, 2012 employment injury.
In October 18 and 21, 2019 reports, Dr. Cameron maintained that appellant had disc protrusions
and annular tears at L4-5 and L5-S1, which were related to the February 19, 2012 employment
injury.6
By decision dated January 23, 2020, OWCP denied modification of the January 3, 2019
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 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. 9 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10

6

Appellant also submitted an October 1, 2019 report from Dr. Nouhan, which was similar to a previously submitted
February 7, 2017 report.
7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

10

See R.P., Docket No. 17-1133 (issued January 18, 2018).

5

Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits, except for those related to her left knee meniscus tear, effective
December 17, 2015.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Parmer, appellant’s attending physician, and OWCP’s referral physician, Dr. Prostic,
on the issue of whether appellant continued to have residuals of his accepted conditions, which
necessitated medical treatment. In order to resolve the conflict, OWCP properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. Clymer for an impartial medical examination and an
opinion on the matter. 14
In a February 24, 2014 report, Dr. Clymer discussed the diagnostic testing for appellant’s
right knee and opined that appellant had minor patellofemoral chondromalacia, which the
February 19, 2012 fall at work might have aggravated. He indicated that there was no significant
localized cartilage instability, ligament injury, or meniscus tear in the right knee and opined that,
therefore, the likelihood of significant symptomatic improvement with right knee arthroscopy was
“rather low.” Dr. Clymer recommended continued conservative nonsurgical treatment for the right
knee. He noted that, with regard to the multiple other areas of sprains and strains involving the
ankles, heels, wrists, neck, and lumbar spine, “I see nothing today on my objective clinical
exam[ination] nor in the history and review of records which would suggest there is a significant
ongoing problem in these areas which would require further treatment.” Dr. Clymer further
indicated, “I believe the sprains and strains in general have resolved.”
The Board finds that Dr. Clymer’s February 25, 2014 report is not sufficiently well
rationalized to carry special weight and to justify OWCP’s termination of appellant’s medical
benefits, except for those related to her left knee meniscus tear.15 Dr. Clymer provided only a
11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who
shall make an examination.” 5 U.S.C. § 8123(a).
14

15

See supra note 12.

6

cursory and minimal discussion of the multiple medical conditions accepted as caused by the
February 19, 2012 employment injury. With respect to the resolution of these conditions, he
simply noted, without elaboration, that he believed “the sprains and strains in general have
resolved.” The conditions accepted by OWCP included a neck sprain, bilateral sprains of the
wrists, knees, ankles, and heels, and aggravation of L4-5 disc protrusion and L4-5, and aggravation
of L5-S1 annular tears. Dr. Clymer did not provide any discussion of how and when each of these
conditions resolved. The fact that he failed to provide adequate medical rationale in support of his
opinion renders it of limited probative value on the issue of continuing employment-related
residuals and the need for medical treatment.16
In an August 3, 2015 supplemental report, Dr. Clymer advised that the opinions he
expressed in his February 25, 2014 report remained unchanged. He noted, “[w]hile I feel
[appellant] may well have sustained various areas of sprain and strain as a result of th e workrelated fall on February 19, 2012, the objective clinical examination and multiple objective
radiographic studies have not revealed evidence of any significant structural injuries which I feel
would be clearly benefited by further surgical intervention.” Dr. Clymer indicated that appellant’s
subjective symptoms were certainly significant and diffuse, involving multiple areas, but noted
that it was unlikely that any aggressive or surgical measures would be of any clear benefit.
The Board notes that Dr. Clymer’s August 3, 2015 supplemental report is of limited
probative value on the underlying issue of the case because it does not provide any further
discussion, fortified with medical rationale, to explain how and when appellant’s multiple accepted
medical conditions had resolved such that he would not require medical benefits to treat those
conditions. In fact, Dr. Clymer acknowledged that appellant had a number of symptoms in each
of the bodily regions where OWCP accepted employment-related conditions. He emphasized that
surgical intervention was not recommended, but he did not adequately explain why appellant
would not continue to have employment-related residuals, which would necessitate some form of
medical treatment.
Because there remains an unresolved conflict in the medical opinion evidence regarding
employment-related residuals and the need for medical treatment of continuing employmentrelated conditions, the Board finds that OWCP failed to meet its burden of proof. 17
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits, except for those related to her left knee meniscus tear, effective
December 17, 2015.18

16

See Y.D., Docket No. 16-1896 (issued February 10, 2017). See also supra note 9.

17

See L.H., Docket No. 17-1859 (issued May 10, 2018); R.R., Docket No. 15-0380 (issued April 10, 2015).

18

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

7

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Minneapolis, MN,
Employer
__________________________________________

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

Docket No. 21-1308
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 9, 2020 appellant filed a timely appeal from a March 31, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 31, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish more than 23 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On December 9, 2009 appellant, then a 33-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 10, 2009 she injured her left knee when she
tripped over a stack of totes. OWCP accepted the claim for left knee strain and authorized left
kneecap repair/arthroscopic surgery, which was performed on July 26, 2012. It also authorized
the removal of left support implant, which was performed on February 7, 2014, and total left knee
arthroplasty, which was performed on January 21, 2015.
On December 17, 2015 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
By decision dated February 8, 2016, OWCP granted appellant a schedule award for 23
percent left lower extremity permanent impairment. The award ran 66.24 weeks for the period
January 23, 2016 to April 30, 2017 and was based on the impairment rating of Dr. Ann M. Reiner,
an occupational and environment physician, and the January 14, 2016 report of Dr. David I.
Krohn, a Board-certified internist, serving as an OWCP district medical adviser (DMA). The
diagnostic basis for the schedule award was appellant’s total knee replacement.
By decision dated July 29, 2016, OWCP expanded acceptance of the claim to include left
leg sprain, left lower leg joint pain, left gait abnormality, closed dislocation of patella, c ramp in
limb, and venous embolism and thrombosis of deep vessels of the lower extremity.
On December 2, 2019 appellant filed a Form CA-7 claim for an increased schedule award.
On January 8, 2020 OWCP referred appellant, along with the case record, an updated
statement of accepted facts (SOAF), and a series of questions to Dr. Chester A. DiLallo, a Boardcertified orthopedic, for a second opinion evaluation regarding permanent impairment of
appellant’s left lower extremity. The January 8, 2020 SOAF provided to Dr. DiLallo included past
treatment modalities and noted that appellant previously received a schedule award for 23 percent
permanent impairment of the left lower extremity.
In a report dated February 4, 2020, Dr. DiLallo noted his review of the SOAF and
appellant’s medical records. He determined that appellant had reached MMI on February 4, 2020.
Upon examination of the left knee, Dr. DiLallo found a slightly shortened stance on the left side,
3

Docket No. 18-1620 (issued May 6, 2019).

2

tenderness in the inferior patella and lateral side of the knee in the collateral ligaments region, no
effusion, some slight medial instability, and the patella could not be subluxed by manual pressure.
He also reported full left knee extension and flexion to 120 degrees. Dr. DiLallo referred to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),4 Knee Regional Grid and noted that, for the left knee, the diagnostic key factor was a
total knee replacement arthroplasty with a good result (good position, stable, and functional).5 He
noted a grade modifier for functional history (GMFH) of 3 based on a pain disability questionnaire,
which yielded a raw score of 113. Dr. DiLallo found that a grade modifier for clinical studies
(GMCS) was not applicable and that no other grade modifiers were applicable.6 He explained that
application of the net adjustment formula resulted in a finding of -+1 or grade D, which was the
equivalent of 25 percent permanent impairment of the left lower extremity.
On February 7, 2020 OWCP referred Dr. DiLallo’s report, the medical record, and SOAF,
to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser
(DMA). In a report dated March 21, 2020, Dr. Slutsky noted his disagreement with Dr. DiLallo’s
impairment rating of 25 percent left lower extremity permanent impairment. Based on his review
of Dr. DiLallo’s report and SOAF, Dr. Slutsky calculated 21 percent left lower extremity
permanent impairment. In reaching this determination, he assigned a class of diagnosis (CDX) for
the diagnosis of total knee replacement with fair or good result of class 2 7 (class 2, default value
of 25 percent). 8 Dr. Slutsky assigned a GMFH of 0 as Dr. DiLallo related that appellant had no
gait derangement, a grade modifier for physical examination (GMPE) of 2 due to general palpatory
tenderness and no instability and no GMCS as it was used to define the class of impairment. 9 He
explained that application of the net adjustment formula resulted in a finding of -2 or grade A,
which was the equivalent of 21 percent permanent impairment of the left lower extremity. 10
Dr. DiLallo noted that this was less than her prior impairment rating.
By decision dated March 31, 2020, OWCP denied appellant’s claim for an increased
schedule award.

4

A.M.A., Guides (6 th ed. 2009).

5

Id. at 511, Table 16-3.

6

Id. at 516, Table 16-6.

7

Dr. Slutsky noted a class 3 instead of class 2. However, this appears to be a typographical error as he refers the
midrange of 25 percent. The midrange is 25 percent for a class 2 while the midrange for a class 3 is 37 percent.
8

Supra note 6.

9

Id. at 516, Table 16-6, 517, Table 16-7, and 519, Table 16-8.

10

Id. at 521.

3

LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a membe r shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.13 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left knee, the relevant position of the left leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 15 After CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores. 17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.18

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
14

M.T., Docket No. 21-0169 (issued October 14, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
15

See supra note 5 at 509-11.

16

Id. at 515-22.

17

Id. at 23-28; see D.W., Docket No. 21-0840 (issued November 30, 2021); R.V., Docket No. 10-1827 (issued
April 1, 2011).
18

See supra note 16 at Chapter 2.808.6(f) (March 2017).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.
In a February 4, 2020 report, Dr. DiLallo, based upon a review of the medical records, a
SOAF, and series of questions, diagnosed a total left knee replacement. He provided a permanent
impairment rating based upon the sixth edition of the A.M.A., Guides. Dr. DiLallo assigned a
CDX for the diagnosis of total knee replacement with fair or good result of class 2 based on a good
result and a GMFH of 3 based on a pain disability questionnaire which yielded a raw score of 113.
He applied the net adjustment formula and calculated 25 percent permanent impairment of the left
lower extremity based upon the DBI methodology.
OWCP referred Dr. DiLallo’s report to the DMA, Dr. Slutsky. In a report dated March 21,
2021, Dr. Slutsky found 21 percent left lower extremity permanent impairment. He disagreed with
Dr. DiLallo’s finding of 25 percent left lower agreement impairment, which he explained was due
to the difference in the application of the GMFH. Dr. Slutsky explained that he determined
appellant GMFH of 0 rather than GMFH 3, as found by Dr. DiLallo, which he explained was based
Dr. DiLallo’s finding of no gait derangement.
Dr. Slutsky properly reviewed the medical evidence and evaluated appellant’s impairment
of the left lower extremity in accordance with the A.M.A., Guides, as a GMFH of 0 rather than
GMFH of 3, based upon no gait derangement. The Board further finds that Table 17-12, cited by
Dr. DiLallo as the basis for finding a GMFH of 3 is inapplicable as it pertains to the pelvis and not
the knee.
As there is no medical evidence of record in conformance with the sixth edition of the
A.M.A., Guides, establishing that appellant has greater impairment than that which was previously
awarded, the Board finds that appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION, FEDERAL AVIATION
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 17-1996
Issued: March 5, 2018

Case Submitted on the Record

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

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from an August 1, 2017 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
ISSUE
The issue is whether appellant met his burden of proof to establish that he reached
maximum medical improvement (MMI) thereby warranting consideration of his entitlement to a
schedule award pursuant to 5 U.S.C. § 8107.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 1, 2017 decision.
The Board’s jurisdiction is limited to evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 15, 2015 appellant, then a 33-year-old motor carrier safety inspector, filed a
traumatic injury claim (Form CA-1) alleging that, on April 13, 2015, during an inspection for
mechanical violations, he leaned over and felt a sharp pain in his lower left back. He stopped
work on April 15, 2015. OWCP accepted appellant’s claim for sprain of the lumbar region of
the back and thoracic or lumbosacral neuritis or radiculitis.3
On March 22, 2017 appellant filed a claim for a schedule award (Form CA-7).
By letter dated March 28, 2017, OWCP asked appellant’s treating physician,
Dr. William C. Eves, a Board-certified orthopedic surgeon, to provide an opinion as to whether
appellant had reached MMI. It also asked Dr. Eves to address appellant’s physical examination
findings, his diagnoses of conditions affecting the extremities, and the percentage of permanent
impairment of the affected extremities with an explanation as to how the impairment was
calculated pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4
By development letter dated May 18, 2017, OWCP asked appellant to have his physician
provide the above-noted information. Appellant was afforded 30 days to submit the requested
medical report.
In a May 17, 2017 report, received by OWCP on June 6, 2017, Dr. Eves diagnosed
lumbar disc disorder and L4-5 disc herniation. He noted that appellant had a very good result
with one L5 epidural injection in 2015. Dr. Eves noted that he did not think appellant’s
condition had worsened, but did note that appellant had to cease physical therapy treatments
because of exacerbation of his pain. He indicated that, before repeating the L5 epidural
injection, he would like to have appellant undergo magnetic resonance imaging (MRI) scan as
his prior MRI scan was outdated.
In a June 27, 2017 report, Dr. Kenneth A. Romero, Board-certified anesthesiologist and
colleague of Dr. Eves, reviewed the results of a June 15, 2017 MRI scan. He noted that the MRI
scan documented a disc herniation at L4-5 with impingement of the traversing left L5 nerve root
which correlated to appellant’s previous MRI scan from 2015. Dr. Romero indicated that
appellant previously benefitted from an epidural injection in 2015. He opined that appellant
would benefit from a repeat L4-5 epidural injection, but that he wanted to wait until after his
Social Security disability proceedings were completed.

3

Appellant received wage-loss compensation on the supplemental roll for partial disability on two dates:
October 9 and November 30, 2015. By decision dated February 17, 2016, OWCP denied his claim for wage-loss
compensation for the period November 23 through 25, 2015 because the medical evidence did not substantiate that
the disability was caused by the employment injury. In a decision dated February 26, 2016, it denied appellant’s
claim for compensation for the period commencing December 14, 2015 because medical reports only contained a
diagnosis of pain, and pain is not a valid diagnosis.
4

A.M.A., Guides (6th ed. 2009).

2

On August 1, 2017 OWCP denied appellant’s claim for a schedule award. It determined
that the evidence of record did not support that he had reached MMI.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body.5 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the sixth edition of the A.M.A., Guides.6
The Board has explained that permanent impairment may only be rated according to the
A.M.A., Guides after MMI has been achieved.7 An impairment should not be considered
permanent until a reasonable time has passed for the healing or recovery to occur. The A.M.A.,
Guides explain that impairment should not be considered permanent until the clinical findings
indicate that the medical condition is static and well-stabilized. The A.M.A., Guides note that an
individual’s condition is dynamic. MMI refers to a date from which further recovery or
deterioration is not anticipated, although over time there may be some expected change. Once
impairment has reached MMI, a permanent impairment rating may be performed.8
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
is to be made in each case upon the basis of the medical evidence in that case.9 The date of MMI
is usually considered to be the date of the medical examination that determined the extent of the
impairment.10
ANALYSIS
OWCP accepted that on April 13, 2015 appellant sustained a lumbar sprain and thoracic
or lumbosacral neuritis or radiculitis. However, it denied his claim for a schedule award as it
determined that he had not yet reached MMI.

5

5 U.S.C. § 8107.

6
20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013).
7

See B.C., Docket No. 16-2062 (issued November 18, 2016).

8

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI - meaning that the physical condition of the injured member of the body has stabilized and will not
improve further – has been reached).
9

See D.S., Docket No. 15-1244 (issued August 24, 2015).

10

W.S., Docket No. 16-0344 (issued April 4, 2016).

3

The Board notes that it is well established that a schedule award cannot be determined
and paid until a claimant reaches MMI.11 OWCP specifically requested a report from appellant’s
physician regarding the status of MMI. In their reports, both Dr. Eves and Dr. Romero clearly
opined that appellant was currently undergoing treatment which may improve his underlying
conditions. Both physicians noted that appellant had prior success with an L5 epidural injection
in 2015, and indicated that another injection would be the next step in appellant’s treatment. No
physician of record indicated that MMI had been reached. Although appellant argued that
OWCP never asked Dr. Eves for an opinion with regard to MMI and permanent impairment, the
record indicates that a letter was sent to Dr. Eves on March 28, 2017 asking for this information.
In addition, OWCP sent a letter to appellant on May 18, 2017 asking him to submit the necessary
medical report.
Accordingly, OWCP properly determined that entitlement to schedule award was not
established as MMI had not been reached.12
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
reached MMI thereby warranting consideration of his entitlement to a schedule award pursuant
to 5 U.S.C. § 8107.

11

See Joseph R. Waples, 44 ECAB 936 (1993).

12

See id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2017 is affirmed.
Issued: March 5, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camarillo, CA, Employer
__________________________________________

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

Docket No. 16-0835
Issued: August 8, 2016

Case Submitted on the Record

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

JURISDICTION
On March 15, 2016 appellant filed a timely appeal from a January 21, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between December 3, 2014, the most recent merit OWCP decision, and 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 to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant contends that her request for reconsideration was timely filed.
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new evidence. The Board, however, is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1); D.B., Docket No.
12-1653 (issued March 26, 2013).

FACTUAL HISTORY
On August 4, 2014 appellant, then a 55-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that the pain in her lower back, shoulder, neck, thumb, wrist,
forearm, and hands was caused by carrying heavy trays, pushing a cart with heavy mail, casing
mail, and shuffling the mail in her hand at work.
In an August 22, 2014 letter, OWCP advised appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
OWCP received medical evidence from Dr. Charles Adams, an attending Board-certified
family practitioner. A September 3, 2014 work restriction summary form report indicated that
appellant could return to modified-duty work with restrictions through September 17, 2014. A
September 5, 2014 work restriction summary form advised that appellant was temporarily totally
disabled through September 17, 2014. In an attending physician’s report (Form CA-20),
attending physician’s supplemental report (Form CA-20a), and industrial work status report
dated September 8, 2014, Dr. Adams noted an August 1, 2014 date of injury and advised that
repetitive motion caused pain in appellant’s arms, shoulders, neck, and lower back. He reported
findings on examination and diagnosed low back pain with bilateral sciatica, bilateral shoulder
tendinitis, and right and left wrist tenosynovitis. In the September 8, 2014 Form CA-20 report,
Dr. Adams responded “yes” that appellant’s injury was consistent with a work-related injury
based on her history and physical examination. He placed her on modified activity from
September 3 to 17, 2014. In the September 8, 2014 Form CA-20a report, Dr. Adams advised
that appellant was totally disabled from September 5 to 17, 2014 due to incapacitating injury or
pain.
In a September 11, 2014 work status report, Dr. Marinor I. Torres, a family practitioner,
placed appellant off work from September 5 to 30, 2014. She reported that she was unable to
perform any kind of work due to her current left shoulder and low back pain. Dr. Torres listed
her physical restrictions. She concluded that appellant could return to work at full capacity on
October 1, 2014. In a September 26, 2014 work status report, Dr. Torres placed appellant off
work from October 1 to 31, 2014 due to her current left shoulder and low back pain and
reiterated her physical restrictions.
On September 22, 2014 appellant described the employment duties she believed caused
her claimed conditions. She indicated that she performed these activities from 7:30 a.m. to 9:30
a.m. or 9:45 a.m., five days a week. These activities included lifting and flats, unwrapping flats,
pulling down mail from cases, bending to transfer trays and arrange parcels, pulling and pushing
heavy metal bins, pushing and pulling the hand brakes in appellant’s truck, entering, and exiting
her vehicle to deliver mail to customers. Appellant described the development of her claimed
conditions beginning in 2011. She stated that she first experienced pain in her shoulders, arms,
wrists, and lower back. Appellant took Aleve for her pain. On August 1, 2014 she had severe
pain in the stated areas. Appellant claimed that she had never been diagnosed with or sustained
an injury to her hand, arm, or wrist.

2

In a December 3, 2014 decision, OWCP denied appellant’s claim. It found that the
medical evidence of record did not contain a rationalized medical opinion to establish a causal
relationship between her medical conditions and the accepted factors of federal employment.
By appeal request form and letter dated December 1, 2015, received on December 7,
2015, appellant requested reconsideration. She reiterated the nature of her duties and advised
that she had submitted medical evidence. In support of her request, appellant resubmitted
Dr. Adams’ September 8, 2014 Form CA-20a report.
The new evidence submitted by appellant included a September 5, 2014 lumbosacral xray report completed by Dr. Donald J. Flanigan, a Board-certified radiologist. Dr. Flanagan
provided an impression of vertebral bodies that were normal in height and alignment, mild
degenerative changes of the vertebral bodies and articular facets, and well-preserved, symmetric,
and maintained intervertebral disc spaces. There was no soft tissue abnormality. There was a
sclerosis of the articular facet at L5 on the right that was most likely a benign process.
Dr. Flanagan advised that if there was evidence of malignancy, then further evaluation would be
warranted.
In a September 3, 2014 progress note and February 12, 2015 Form CA-20 report,
Dr. Adams provided appellant’s history and findings on examination. He reiterated his
diagnoses of low back pain with bilateral sciatica, bilateral shoulder tendinitis, and right and left
wrist tenosynovitis. Dr. Adams again responded “yes” that appellant’s injury was consistent
with a work-related injury based on her history and physical examination. In the February 12,
2015 Form CA-20 report, he noted that she had been placed on modified duty at work and home
from September 3 to 17, 2014. In State of California workers’ compensation request for
authorization forms dated September 3, 2014, Dr. Adams sought treatment authorization for
appellant’s diagnosed bilateral wrist condition.
In a September 3, 2014 progress note, a nurse noted appellant’s medical history and
diagnoses of low back pain with bilateral sciatica, bilateral shoulder tendinitis, and right and left
wrist tenosynovitis.
In a July 27, 2015 progress note, Dr. Genevieve E. Moya Viamonte, a Board-certified
family practitioner, provided examination findings and assessed left shoulder impingement
syndrome. She advised that her assessment was consistent with a work injury from repetitive
heavy lifting. Dr. Moya Viamonte reported that appellant’s injury improved while off work and
worsened when she returned to work.
In a January 21, 2016 decision, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.3
3

20 C.F.R. § 10.607(a) (2011).

3

Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations, if the
claimant’s application for review shows clear evidence of error on the part of OWCP.4 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to shift the weight
of the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.6
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.7 The Board makes an independent determination of whether a claimant has
submitted, clear evidence of error on the part of OWCP.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a merit review of her
claim. OWCP regulations9 and procedures10 establish a one-year time limit for requesting
reconsideration, which begins on the date of the original OWCP decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,11
4

Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

5

See Alberta Dukes, 56 ECAB 247 (2005).

6

Robert G. Burns, 57 ECAB 657 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
8

Nancy Marcano, 50 ECAB 110 (1998).

9

20 C.F.R. § 10.607(a); see supra note 5.

10

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.4 (October 2011); see Veletta C. Coleman,
48 ECAB 367 (1997).
11

See Robert F. Stone, 57 ECAB 292 (2005).

4

including any merit decision by the Board and any merit decision following action by the
Board.12 Appellant has requested reconsideration of OWCP’s December 3, 2014 merit decision
which denied her occupational disease claim because the medical evidence of record was
insufficient to establish that her medical conditions were caused by the accepted employment
factors. She had one year from the date of the December 3, 2014 decision to make a timely
request for reconsideration. Appellant’s request for reconsideration was received by OWCP on
December 7, 2015. As her request for reconsideration was received more than one year after the
December 3, 2014 merit decision, the Board finds that it was untimely filed.
The Board also finds that appellant has not demonstrated clear evidence of error by
OWCP. The issue is medical in nature and, on reconsideration, appellant resubmitted
Dr. Adams’ September 8, 2014 Form CA-20a report. OWCP had previously considered this
evidence and in submitting this document, she did not explain how this evidence was positive,
precise, and explicit in manifesting on its face that OWCP committed an error in denying her
claim for compensation. The resubmission of evidence is insufficient to raise a substantial
question as to the correctness of OWCP’s decision.
Appellant submitted additional medical evidence on reconsideration. Dr. Adams’
September 3, 2014 progress note and Form CA-20 and February 12, 2015 Form CA-20a reports
reiterated his prior diagnoses of low back pain with bilateral sciatica, bilateral shoulder
tendinitis, and right and left wrist tenosynovitis. He also reiterated his opinion on causal
relationship by responding “yes” that appellant’s injury was consistent with a work-related injury
based on her history and physical examination. A mere checkmark or affirmative notation in
response to a form question on causal relationship is not sufficient to establish a claim.13
Further, Dr. Adams did not explain with medical rationale how the performance of appellant’s
accepted work duties caused the diagnosed conditions.14 The Board finds, therefore, that this
evidence of record does not raise a substantial question concerning the correctness of OWCP’s
decision. Dr. Adams’ state workers’ compensation authorization forms which requested
authorization for medical treatment of appellant’s diagnosed bilateral wrist condition do not
establish clear evidence of error as they do not provide a rationalized medical opinion stating that
the diagnosed condition was caused by the accepted employment factors.15
Dr. Moya Viamonte’s July 27, 2015 progress note found that appellant’s diagnosed left
shoulder impingement syndrome was consistent with a work-related injury that involved
repetitive heavy lifting. While this progress note offers some support for causal relationship, the
Board has held that the term clear evidence of error is intended to represent a difficult standard.
12

See E.C., Docket No. 13-1937 (issued February 6, 2014); Federal (FECA) Procedure Manual, supra note 7 at
Chapter 2.1602.4(a) (October 2011).
13

See Gary J. Watling, 52 ECAB 278 (2001).

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also, Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett,
52 ECAB 332 (2001).
15

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).

5

Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error and would not require a review of a case.16 The Board finds, therefore, that
Dr. Moya Viamonte’s progress note is insufficient to shift the weight of the evidence in favor of
appellant’s claim or raise a substantial question that OWCP erred in denying her occupational
disease claim.
Dr. Flanagan’s September 5, 2014 diagnostic test results found that appellant had various
lumbar conditions, but did not address whether the diagnosed conditions were caused by the
accepted employment factors.17 Consequently, this report does not raise a substantial question as
to the correctness of OWCP’s decision or shift the weight in favor of appellant’s claim.
The September 3, 2014 progress note from a nurse is not probative medical evidence. A
nurse is not a physician as defined under FECA.18 Thus, this evidence does not shift the weight
in favor of appellant to demonstrate clear evidence of error on the part of OWCP in the issuance
of its December 3, 2014 decision.
On appeal, appellant contends that her request for reconsideration was timely filed. As
discussed above, the evidence demonstrates that her reconsideration request was received by
OWCP after the one-year time period had elapsed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.

16

D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a)
(February 2016).
17

Supra note 15.

18

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2016
Washington, DC

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

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

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

7