United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
L.Y., Appellant
and
DEPARTMENT OF THE AIR FORCE, SPACE
& MISSILE SYSTEMS CENTER, LOS
ANGELES AIR FORCE BASE, El Segundo, CA,
Employer
__________________________________________
Appearances:
Toby Rubenstein, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1383
Issued: February 16, 2021

Case Submitted on the Record

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

On July 13, 2020 appellant, through counsel, filed a timely appeal from a January 30, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 20-1383.
On July 23, 2017 appellant, then a 60-year-old logistics management specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome as well as muscle, neck, and back spasms with radiculopathy due to factors of her federal

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.

employment.2 She described her contributing employment duties as handwriting and keyboard,
answering telephones, handwriting and typing meeting notes to be distributed approximately two
to three times per day, handling extensive paperwork, repetitive use of office equipment, lifting
luggage in and out of air plane overhead bins, typing on a laptop computer, and handling a carrying
case. Appellant indicated that these activities caused her to develop soreness in her wrists, arms,
and shoulders over time. She noted that she first became aware of her condition on June 4, 2007
and first realized that it was caused or aggravated by her federal employment on January 9, 2017.
Appellant stopped work on January 19, 2017.
By decision dated September 19, 2017, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that the employment events
occurred as she described. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On September 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s
September 19, 2017 decision. Counsel discussed appellant’s employment duties over the previous
eight years, including answering telephone calls for approximately one and a half hours a day,
keyboarding for approximately three to four hours a day, pinching, gripping, grasping, lifting and
carrying her laptop and luggage, walking and standing on concrete floors for approximately half a
mile a day, and as well as carrying, pushing and lifting her luggage on various travel assignments
over the years. He attached additional medical evidence and reasoned that it would be sufficient
to establish her claim.
Counsel attached a January 9, 2017 medical report in which Dr. Raven Copeland, Boardcertified in family medicine, reviewed appellant’s history of symptoms and diagnosed bilateral
carpal tunnel syndrome, bilateral hip joint pain, right tarsal tunnel syndrome, and muscle spasms
of the neck and back. In a diagnostic report of even date, Dr. Augusto Salceda, a Board-certified
radiologist, performed an x-ray of appellant’s hips, finding no fractures and mild narrowing in the
periacetabular region on the right hip joint.
Appellant also submitted a September 26, 2018 narrative medical report wherein Dr. John
Ellis, Board-certified in occupational medicine, reviewed the history of her employment duties
and observed that she filed multiple occupational disease claims related to her employment duties.3
Dr. Ellis detailed her subsequent medical history and diagnosed a muscle tendon unit strain of the
neck, a strain of the right shoulder, right shoulder traumatic arthritis, right shoulder tendinitis, a
strain of the left shoulder, right mid brachial plexus impingement, left mind brachial plexus
impingement, right medial epicondylitis, right cubital tunnel syndrome, left medial epicondylitis,
left cubital tunnel syndrome, right carpal tunnel syndrome, left carpal tunnel syndrome, right
thumb traumatic arthritis metacarpophalangeal joint, left middle finger trigger finger, muscle
2

The Board notes that appellant originally filed two separate Form CA-2s and that on August 2, 2017 OWCP
determined that her conditions were caused by the same work factors and added the evidence from the other claim to
the present one.
3

Appellant previously filed multiple Form CA-2s dated July 23, 2017 and September 18, 2018 claiming that she
developed right tarsal tunnel syndrome, bilateral knee osteoarthritis, left vitreous detachment, and right hip
osteoarthritis under OWCP File Nos. xxxxxxx653, xxxxxxx718, xxxxxxx825, and xxxxxxx342, respectively. On
January 14, 2019 it accepted, under OWCP File No. xxxxxxx342, unilateral primary osteoarthritis right hip.

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tendon unit strain of the back, deranged discs in the back, and right S1 spinal nerve impairment
and left S1 spinal nerve impairment. He opined that appellant’s conditions were caused by her
prolonged sitting, walking, and repetitive use of a straight keyboard at work.
By decision dated December 11, 2018, OWCP affirmed, as modified, its September 19,
2017 decision, finding that the new evidence submitted by appellant was sufficient to establish the
factual component of fact of injury. The claim remained denied, however, because she failed to
submit a rationalized opinion from her treating physician explaining how her diagnosed conditions
were causally related to the accepted factors of her federal employment.
Appellant subsequently submitted medical evidence dated from November 26, 2018 to
February 6, 2019 detailing her continued treatment for her diagnosed conditions.
On November 19, 2019 appellant, through counsel, requested reconsideration of OWCP’s
December 11, 2018 decision. In support thereof, appellant submitted a series of additional medical
evidence dated from November 26, 2018 to February 11, 2019 detailing her treatment relating to
her diagnosed conditions.
By decision dated January 30, 2020, OWCP denied modification of its December 11, 2018
decision.
The Board finds that this case is not in posture for decision.
OWCP did not make any findings regarding the evidence submitted in support of the
reconsideration request.4 It summarily denied appellant’s occupational disease claim without
complying with the review requirements of FECA and its implementing regulations.5 Section
8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an
award for or against payment of compensation.6 Its regulations at 20 C.F.R. § 10.126 provide that
the decision of the Director of OWCP shall contain findings of fact and a statement of reasons.7
As well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation should be
clear enough for the reader to understand the precise defect of the claim and the kind of evidence
which would overcome it.8
In its January 30, 2020 decision, OWCP failed to analyze the substantial amount of medical
evidence as to whether it was sufficient to establish causal relationship between appellant’s
diagnosed medical conditions and the accepted factors of her federal employment. The
4

See J.K., Order Remanding Case, Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case,
Docket No. 20-0450 (issued August 13, 2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued
July 27, 2020).
5
See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see also
20 C.F.R. § 10.607(b).
6

5 U.S.C. § 8124(a).

7

20 C.F.R. § 10.126.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

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January 30, 2020 decision simply noted: “[t]he evidence is [in]sufficient to modify the decision
dated [December 11, 2018] because the additional medical and factual evidence received and
reviewed by this Office was insufficient for the previous decision to be modified in any way.”
However, OWCP provided no discussion relative to the new medical evidence submitted by
appellant.9 The Board will therefore set aside OWCP’s January 30, 2020 decision and remand the
case for a de novo decision,
IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: February 16, 2021
Washington, DC

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

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

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

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J.K., supra note 4.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, SC, Employer
__________________________________________

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

Docket No. 14-209
Issued: April 11, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant filed a timely appeal from an August 9, 2013 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 OWCP properly terminated appellant’s compensation effective
August 9, 2013 on the grounds that she refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2).
FACTUAL HISTORY
OWCP accepted that on March 8, 2010 appellant, then a 49-year-old rural carrier,
sustained injuries to her head, shoulder, neck and back when she passed out at work and fell.
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5 U.S.C. § 8101 et seq.

She struck her head and left shoulder on the concrete. Appellant stopped work on
March 8, 2010. OWCP accepted her claim for multiple contusions of the head and left shoulder
without infection, thoracic spondylosis with myelopathy and concussion with loss of
consciousness of unspecified duration. Appellant received disability compensation beginning
April 24, 2010 and was placed on the periodic rolls as of September 15, 2010.
On April 19, 2011 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Charles Jervey, a Board-certified neurologist, for a second opinion
examination. In a July 18, 2011 report, Dr. Jervey provided an accurate history of the March 8,
2010 employment injury. Upon examination, he observed that appellant’s scalp was nontender
to palpation and sensation was intact to pinprick throughout. Reflexes were 1 to 2+ and
symmetrical throughout. Upon examination of her neck, Dr. Jervey observed full flexion but no
extension, right rotation was 40 degrees and left rotation was 30 degrees. No significant
tenderness to palpation was found. Dr. Jervey stated that there was no objective information to
establish a significant traumatic brain injury but he did not think that appellant’s injury had
resolved because her symptoms persisted. Appellant stated that she appeared to be able to do at
least some elements of her job, including prolonged sitting and/or standing, some walking,
reaching in front of her and reaching above her head. Dr. Jervey recommended a functional
capacity evaluation (FCE) to determine what restrictions should be placed.
In a September 8, 2011 FCE report, Catherine Sherlton, a physical therapist, noted
appellant’s diagnoses of left shoulder pain and head contusion as a result of a March 8, 2010
injury. She provided findings on examination. Ms. Sherlton stated that appellant demonstrated
the ability to stand, walk, bend and squat sustained and repetitive, reach overhead, pivot and
twist, push up to 45 pounds and pull up to 25 pounds. She noted that appellant could kneel,
crawl, climb stairs, reach and grasp with occasional breaks and could sit and stand alternatively
and use fine motor movement on a constant basis. Ms. Sherlton concluded that appellant’s
physical demand level was low.
In a December 27, 2011 report, Dr. Jervey reviewed the FCE and advised that appellant
was able to function within the defined guidelines and limitations. In a work capacity evaluation
form, he listed that she was able to perform her job with restrictions of standing up to 2.5 hours,
bending and stooping for 1 to 2 hours, pushing and pulling up to 10 pounds for 2.5 hours, lifting
squatting, kneeling for 2.5 hours and climbing for 3.5 hours. Dr. Jervey indicated that appellant
would have to be “episode free” for six months in order to operate a motor vehicle. He also
noted that she needed 10-minute breaks every 1 to 2 hours.
In reports dated September 9, 2011 to March 4, 2012, Dr. George M. Sandoz, a Boardcertified neurologist, related appellant’s complaints of headache and neck pain that occurred due
to head trauma. Examination of the cervical spine revealed muscle spasm and moderate pain
with motion. Dr. Sandoz observed no lumbar spine tenderness and normal mobility and
curvature. He diagnosed unspecified disc disorder of the cervical spine and other unspecified
superficial injury. Dr. Sandoz concluded that appellant was unable to work.
On May 9, 2012 OWCP found a conflict of opinion arose between Dr. Sandoz and
Dr. Jervey regarding appellant’s residuals and her ability to return to work. It referred her to

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Dr. Marshall A. White, a Board-certified neurologist, for an impartial medical examination to
resolve the conflict.
In a November 1, 2012 report, Dr. White provided an accurate history of the March 8,
2010 employment injury and a summary of the medical evidence of record. He noted that the
hospital records did not appear to indicate that appellant sustained any significant sequelae as a
result of the mild concussion from her fall or significant traumatic brain injury. Dr. White stated
that after the employment incident accident she continued to complain of memory loss related to
the reported head injury, neck pain, blurred vision and dizziness. Upon examination, he
observed normal balance, reflexes, motor power and sensation throughout with no cerebellar
signs present. Dr. White noted that appellant appeared quite anxious and impulsive and noted
scratch marks on her necks, arms and legs, which appeared to be some type of anxiety-driven,
neurocutaneous syndrome. Regarding her neck pain and headache, he reported that there was
documented degenerative disease present and that the fall and subsequent stress exacerbated the
degenerative arthritic condition.
Dr. White opined that appellant’s continued illness was directly driven by her disability
claim and symptomatology driven by the stress of her current situation. He reviewed her job
duties as a rural mail carrier and opined that even prior to her accident she was incapable of
performing the job. Dr. White stated that more detailed neuropsychological testing would
corroborate his assertions regarding appellant’s neurocognitive state and recommended formal
audiology evaluation with electronystagmogram if she continued to complain of dizziness. In a
work capacity evaluation form, he noted that she was able to work eight hours with restrictions
of two hours of twisting, two hours of pushing and pulling up to 10 pounds and lifting up to 20
pounds. No repetitive bending or stooping, squatting, kneeling or climbing was authorized.
Dr. White reported that appellant needed to take 15-minute breaks every 2 hours. He stated that
she reached maximum medical improvement.
On March 25, 2013 OWCP referred appellant for vocational rehabilitation counseling.
By notice dated March 26, 2013, the employing establishment offered appellant a
position as a modified rural carrier based on Dr. White’s November 1, 2012 report. The duties to
be performed included removing trash from work areas, lobbies and washrooms, general dusting
and cleaning, grass cutting, raking and maintenance of the grounds from 7:30 a.m. to 4:00 p.m.
with a 30-minute lunch break and 15-minute breaks after each 2 hours of work. The physical
requirements of the position consisted of two hours of pushing and pulling up to 10 pounds and
lifting up to 20 pounds. The position did not require twisting, repetitive bending or stooping,
squatting, kneeling or climbing. The employing establishment noted that there was another
custodian who would also be performing custodial duties that appellant may not be able to
perform due to her current restrictions.
On April 3, 2012 appellant refused the offered position and stated that she would be
applying for early retirement due to disability.
In a letter dated May 15, 2013, OWCP advised appellant that the offered position was
suitable and that she had 30 days to either accept or provide an explanation for her refusal. It
notified her that she would be paid for any difference in salary between the offered position and

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her date-of-injury position. OWCP informed appellant that, if she refused suitable work without
justification, it would terminate her compensation under section 8106(c)(2).
In a June 14, 2013 letter, appellant contended that Dr. White failed to address many of
her mental and physical impairments and did not examine her for her memory, motor skills or
agility. She reported that the job duties of dumping trash, cleaning, grass-cutting and raking
were beyond her scope of abilities and that her short-term memory loss would have her
wandering around forgetting who she was.
By letter dated July 19, 2013, OWCP advised appellant that her reasons for refusing the
offered position were not valid. It notified her that she had 15 days to accept the position or have
her compensation benefits and entitlement to disability compensation terminated.
In a July 18, 2013 report, Dr. Sandoz related that he had examined appellant since
June 16, 2010 after she was involved in a work-related accident on March 8, 2010. Since the
accident, appellant suffered from cervical disc and joint disease that was associated with
dizziness secondary to inner ear damage. Dr. Sandoz reported that she had developed
post-traumatic headaches, an impairment in memory and cognitive functions and post-traumatic
stress disorder and traumatic brain injury. He advised that appellant was not able to continue
with the work at the level that she did before.
In a June 16, 2010 report, Dr. Sandoz related appellant’s complaints of head injury,
headaches, dizziness, numbness and neck pain as a result of a March 8, 2010 trauma. He
reported that she had some difficulty with ambulation and needed some assistance with activities
of daily living and recommended that she remain off work. In an October 19, 2010 evaluation,
Dr. Jonathan Simons, a clinical psychologist, related appellant’s history of head injury following
a fall. Upon examination, he observed that she had problems with episodic memory and
repeated herself frequently. Dr. Simons stated that appellant was adequately oriented and that
her persistence and pace appeared to be adequate, except when interrupted by memory problems.
Appellant worked as a mail carrier for 24 years and stopped work following her injury.
Dr. Simons opined that, following her injury, she was left with a variety of neuropsychological
problems and significant memory problems. Appellant was not likely to be able to function in
work situations because she would have trouble following instructions. Dr. Simons diagnosed
adjustment disorder with depression and anxiety and impairment in memory and cognitive
functioning.
By decision dated August 9, 2013, OWCP terminated appellant’s monetary compensation
effective August 9, 2013 finding that she refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2). It found that Dr. White’s November 1, 2012 report represented the weight of
medical evidence and established that she was capable of performing the duties of the modified
carrier position.

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LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.2 Section
8106(c)(2) of FECA provides in pertinent part that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation.3 It is OWCP’s burden to terminate compensation under section
8106(c) for refusing to accept suitable work or neglecting to perform suitable work.4 The
implementing regulations provide that an employee who refuses or neglects to work after
suitable work has been offered or secured for the employee has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such a showing before entitlement to compensation is terminated.5
The Board has recognized that section 8106(c) serves as a penalty provision as it may bar
an employee’s entitlement to future compensation and, for this reason, will be narrowly
construed.6 To establish that a claimant has refused or abandoned suitable work, OWCP must
substantiate that the position offered was consistent with the employee’s physical limitations and
that the reasons offered for stopping work were unjustified.7 The issue of whether an employee
has the physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence of record.8
Additionally, it is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.9
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.10 The opinion of such specialist, if sufficiently well rationalized and
based upon a proper factual background, must be given special weight.11 When OWCP obtains
an opinion from an impartial medical specialist for the purpose of resolving a conflict in medical

2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

4

Joyce M. Doll, 53 ECAB 790 (2002).

5

20 C.F.R. § 10.517(a).

6

H. Adrian Osborne, 48 ECAB 556 (1997).

7

See Linda Hilton, 52 ECAB 476 (2001); Lizzie M. Greer, 49 ECAB 681 (1998).

8

See Marilyn D. Polk, 44 ECAB 673 (1993).

9

Richard P. Cortes, 56 ECAB 200 (2004); Gayle Harris, 52 ECAB 319, 321 (2001).

10

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675
(issued May 4, 2009).
11

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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evidence and the specialist’s opinion requires clarification or elaboration, OWCP must secure a
supplemental report from the specialist to correct the defect in the original report.12
ANALYSIS
OWCP accepted that appellant sustained for multiple contusions of the head and left
shoulder without infection, thoracic spondylosis with myelopathy and concussion with loss of
consciousness of unspecified duration as a result of a March 8, 2010 employment injury.
Appellant stopped work and received compensation on the periodic rolls. By decision dated
August 9, 2013, OWCP terminated her compensation for wage-loss benefits on the grounds that
she refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
OWCP found that a conflict in medical opinion between appellant’s treating physician,
Dr. Sandoz, who opined that appellant was totally disabled and the second opinion examiner,
Dr. Jervey, who found that she could return to full duty with restrictions. It properly referred
appellant to Dr. White for an impartial medical examination to resolve the medical conflict.
In a November 1, 2012 report, Dr. White reviewed appellant’s history and provided an
accurate history of the March 8, 2010 employment injury. He noted that following the work
injury she continued to complain of memory loss, neck pain, blurred vision and sensation.
Dr. White reported that upon examination appellant exhibited normal balance, reflexes, motor
power and sensation throughout with no cerebellar signs. Regarding appellant’s neck pain and
headache, he noted that there was documented degenerative disease present and that the fall and
subsequent stress exacerbated the degenerative arthritic condition. Dr. White stated that there
was no evidence of significant permanent injury. He reviewed appellant’s job duties as a rural
mail carrier and opined that prior to her accident she was incapable of performing the job. In a
work capacity evaluation form, Dr. White indicated that she was able to work eight hours with
restrictions.
The Board finds that Dr. White’s opinion is not sufficiently to resolve the conflict in
medical evidence or to establish that appellant was capable of performing the offered custodial
position. Dr. White stated that she was unable to perform the duties of her rural carrier position
before the accident but recommended that she return to work with restrictions. The Board notes
that he failed to adequately explain his how appellant was not capable of work before her
March 8, 2010 employment injury but was now capable of limited duty.
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.13
The Board notes that Dr. White recommended more detailed
neuropsychological testing to corroborate his findings and a formal audiology evaluation with
electronystagmogram. OWCP did not, however, seek further clarification of these issues or refer
12

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
13

Id.

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appellant for further testing and evaluation as suggested by Dr. White. Because Dr. White’s
report is not sufficiently rationalized, his opinion is insufficient to resolve the conflict in medical
evidence.14
The Board notes that OWCP did not adequately consider how appellant’s medical
conditions affected her ability to perform the job duties of the offered position. It is well
established that all preexisting and subsequently acquired impairments, whether work related or
not, must be considered in assessing the suitability of an offered position.15 OWCP did not
adequately consider whether appellant’s neuropsychological conditions affected her ability to
perform the modified carrier position. Appellant submitted reports by Drs. Sandoz and Simons,
which indicate that she has a variety of neuropsychological conditions which affect her memory
and cognitive functioning.
The Board finds that as a medical conflict remains unresolved and the medical evidence
does not clearly establish that the modified carrier position was within appellant’s capabilities,
OWCP did not meet its burden of proof to terminate her wage-loss compensation under 5 U.S.C.
§ 8106(c)(2).
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation effective August 9, 2013 on the grounds that she refused an offer of suitable work.

14

See A.G., Docket No. 9-1599 (issued May 11, 2010).

15

See Richard P. Cortes, 56 ECAB 200 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers
and Return to Work, Chapter 2.814.4(c)(7) (June 2013).

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ORDER
IT IS HEREBY ORDERED THAT the August 9, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 11, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, SC, Employer
__________________________________________

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

Docket No. 07-1193
Issued: September 21, 2007

Case Submitted on the Record

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

JURISDICTION
On March 24, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated August 28, 2006 affirming the denial of her
occupational disease claim. The Board also has jurisdiction to review the Office’s February 27,
2007 nonmerit decision denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits.
ISSUES
The issues are: (1) whether appellant established that she sustained a foot condition
caused or aggravated by her federal employment; and (2) whether the Office properly refused to
reopen her case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 21, 2003 appellant, then a 39-year-old food service worker, filed an
occupational disease claim alleging that on February 20, 2003 she first realized that her bilateral

foot condition was employment related. Specifically she attributed her condition to long periods
of standing, walking and bending over the pot sink and pulling and pushing large food carts.
In a letter dated November 3, 2003, the Office advised appellant that additional evidence
was needed in support of her claim. Appellant was instructed to provide medical evidence,
including a comprehensive medical report from a treating physician containing a diagnosis,
results of examinations and tests, the treatment provided and the doctor’s opinion on the cause of
her condition.
By decision dated December 20, 2003, the Office denied appellant’s claim on the
grounds that she did not submit any medical evidence to establish that her foot condition was
caused or aggravated by her federal employment.
On July 19, 2004 appellant requested reconsideration and submitted medical evidence in
support of her claim.
In a July 31, 2003 treatment note, Dr. Angus M. McBryde, Jr., a treating Board-certified
orthopedic surgeon, diagnosed bilateral plantar fasciitis and released appellant to work effective
August 11, 2003. He also stated that he had “written a note for a job change.” Dr. McBryde
diagnosed bilateral plantar fasciitis which he noted “has been previously diagnosed and which
has improved with the time off.” He recommended that appellant limit the amount of time she
stands or walks.
On September 17, 2003 Dr. Renee Hutto-Altman, a treating podiatrist, diagnosed right
heel plantar and heel spur based upon x-ray interpretations. She noted that appellant’s job
required standing and delivering food for several hours. Dr. Hutto-Altman opined that, based
upon her work duties and heel spur diagnosis, loss of work time could be expected until the
problem resolved.
On May 20, 2004 Dr. McBryde noted that appellant was not working as she “could not
find work that permitted her only limited time on her feet.” He diagnosed plantar fasciitis and
noted “[t]his is not thought to be work related.” On July 6, 2004 Dr. McBryde opined that
appellant’s bilateral plantar fasciitis was not employment related. He opined that the condition
was “a repetitive stress injury that could occur at any point, at any time, at any job or unrelated
work activity with standing and walking responsibilities.” Dr. McBryde concluded that if the
condition was due to her employment “there would be a bilateral problem since the same amount
of time was spent on her other foot.”
By decision dated October 20, 2004, the Office denied modification of the December 20,
2003 decision. It indicated that Dr. McBryde did not support appellant’s foot condition as
employment related.
On May 13, 2005 appellant requested reconsideration and submitted medical evidence,
including a March 7, 2005 neck magnetic resonance imaging (MRI) scan and a March 4, 2005
left wrist MRI scan. In reports dated February 23 to June 9, 2005, Dr. Green B. Neal, an
examining physician, noted that appellant had complaints of ankle and foot pain which started
approximately two years prior. On April 14, 2005 he noted that appellant worked for the
employing establishment for approximately seven years delivering heavy trays. Dr. Neal opined
2

that she developed hypertension due to her chronic pain. He stated that appellant “has a lot of
pathology in both ankles, the left wrist and the posterior cervical neck and LS spine.” An MRI
scan of the right revealed “a small amount of fluid seen surrounding the distal Achilles tendon
consistent with Achilles tendinitis.” Based upon appellant’s current physical condition, Dr. Neal
opined that she was unable to work. He noted that appellant had plantar fasciitis, two small cysts
near the talus, significant degenerative disease in her neck and spine, diabetes and significant
lipodystrophy.
On April 25, 2005 Dr. Michael R. Ugino, a Board-certified orthopedic surgeon,
diagnosed bilateral carpal tunnel syndrome, noting that it was worse on the left side than on the
right side.
By decision dated August 26, 2005, the Office denied modification of the October 20,
2004 decision.
On March 22, 2006 appellant requested reconsideration and submitted a March 15, 2006
chart note from Dr. Neal who diagnosed mild plantar fasciitis, bilateral tarsal tunnel syndrome in
her feet, bilateral carpal tunnel syndrome, bulging cervical disc, hypertension, diabetes, chronic
pain syndrome, degenerative arthritis, L3-4 disc protrusion with L4-5 and L5-S1 facet
arthopathy, fibromyalgia and C4-5 degenerative disc disease. Dr. Neal noted that appellant had
been diagnosed with mild plantar fasciitis prior to working for the employing establishment. He
opined that her employment duties exacerbated her preexisting problem of arthritis in the joints,
including the spine, that lead to her present disability. Dr. Neal noted the nature of work
appellant performed which included pushing and pulling a cart over a concrete floor for eight
years. He opined that she was totally disabled, which he attributed to the physical exertional of
the work she performed for eight years.
By decision dated May 1, 2006, the Office denied modification of the August 26, 2005
decision.
On June 27, 2006 appellant requested reconsideration and submitted medical evidence in
support of her request. In a June 14, 2006 report, Dr. Neal noted that he had been treating
appellant since February 2005 for severe feet and knee pain. He noted that her job required her
to do a lot of walking and standing for long distances as well as bending and pushing and pulling
of large food carts. These duties caused leg, knee and foot pain which was exacerbated by
walking any distance and standing which resulted in severe bilateral knee degenerative arthritis,
plantar fasciitis and tibialis and severe Achilles tendinitis. Dr. Neal stated that appellant’s
condition “is not related to a single event or a single day but is a culmination of all her work
environment over the years.” He concluded that there was a direct link between appellant’s foot
condition, bilateral carpal tunnel syndrome and her employment duties. Dr. Neal opined that her
preexisting bilateral knee degenerative arthritis had been aggravated by her foot condition. He
noted that a physical examination revealed tarsal tunnel syndrome, but he has been unable to
prove this by electromyogram testing.
By decision dated September 20, 2006, the Office denied modification of the May 1,
2006 decision.

3

On January 9, 2007 appellant requested reconsideration and submitted medical evidence,
including evidence previously submitted and considered. In office notes for the period
August 14 to November 13, 2006, Dr. Neal saw appellant for complaints of left arm pain. On
August 14, 2006 he reported that appellant had a normal colonoscopy. Dr. Neal stated that she
was doing well in a September 12, 2006 note.
By decision dated February 27, 2007, the Office denied further merit review. It found
that the medical evidence from Dr. Neal was duplicative of his prior reports and did not
constitute a basis for reopening the claim.1
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged, and that any disabilities and/or specific conditions 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
upon a traumatic injury or an occupational disease.4
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.6

1

The Board notes that appellant submitted new evidence with her appeal to the Board. However, the Board may
not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57 ECAB ___ (Docket No. 051622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

5 U.S.C. §§ 8101-8193.

3

Bonnie A. Contreras, 57 ECAB ___ (Docket No. 06-167, issued February 7, 2006): Caroline Thomas, 51 ECAB
451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).
4

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Victor J. Woodhams, 41 ECAB 345 (1989).

5

See D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); William Taylor, 50 ECAB 234
(1999); see also 20 C.F.R. § 10.5(q).
6

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Donna L. Mims, 53 ECAB 730 (2002).

4

The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant8 and must be one of reasonable medical certainty9 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10
ANALYSIS -- ISSUE 1
Appellant alleged that her bilateral foot condition was due to long periods of standing,
walking and bending over a pot sink and pulling and pushing large food carts. The employing
establishment did not dispute that appellant was engaged in such employment activities as a food
service worker. The Board finds that the evidence establishes that appellant’s job required her to
stand, walk and bend as well as push and pull food carts. The issue to be resolved is whether
appellant’s bilateral foot condition resulted from these employment activities. The Board finds
that the medical evidence is not sufficient to establish her claim.
In a September 17, 2003 report, Dr. Hutto-Altman, a treating podiatrist, diagnosed right
heel plantar and heel spur based upon x-ray interpretation. She indicated that it was expected
that appellant would have periods of lost work until her right heel spur and plantar condition was
resolved. However, Dr. Hutto-Altman did not address the issue of causal relationship. She
failed to explain how appellant’s job duties caused or aggravated her right foot condition. As
Dr. Hutto-Altman’s report does not address the relevant issue of causal relationship, it is of
diminished probative value.11
Similarly, the reports by Dr. McBryde are insufficient to support her claim. Dr. McBryde
diagnosed plantar fasciitis in reports dated July 31, 2003 and May 20, 2004. In a July 6, 2004
report, he opined that appellant’s plantar fasciitis was not employment related. As Dr. McBryde
concluded that her foot condition was not caused or aggravated by her employment, his opinion
is not sufficient to establish her claim.
Appellant submitted diagnostic reports regarding back, hand and foot conditions;
however, these reports do not contain a discussion on causal relationship. As noted, the requisite

7

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Conard Hightower, 54 ECAB 796
(2003); Leslie C. Moore, 52 ECAB 132 (2000).
8

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007); Tomas Martinez, 54 ECAB 623 (2003);
Gary J. Watling, 52 ECAB 278 (2001).
9

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005); John W. Montoya, 54
ECAB 306 (2003).
10

J.M., supra note 6; Judy C. Rogers, 54 ECAB 693 (2003).

11

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Leslie C. Moore, supra note 7.

5

evidence needed to establish the claim was a medical report from a physician explaining how her
federal employment contributed to her diagnosed conditions.12
In an April 14, 2005 report, Dr. Neal diagnosed plantar fasciitis, two small cysts near the
talus, significant degenerative disease in appellant’s neck and spine, diabetes and significant
lipodystrophy. In a March 15, 2006 chart note, he diagnosed mild plantar fasciitis, bilateral
tarsal tunnel syndrome in her feet, bilateral carpal tunnel syndrome, bulging cervical disc,
hypertension, diabetes, chronic pain syndrome, degenerative arthritis, L3-4 disc protrusion with
L4-5 and L5-S1 facet arthopathy, fibromyalgia and C4-5 degenerative disc disease. In an
June 14, 2006 report, Dr. Neal attributed severe bilateral knee degenerative arthritis, plantar
fasciitis and tibialis and severe Achilles tendinitis due to the pain in her legs, knee, which had
been exacerbated by long walking or standing. He opined that there was a direct link between
appellant’s feet problems and bilateral carpal tunnel syndrome and her employment duties.
Dr. Neal also opined that appellant’s preexisting bilateral knee degenerative arthritis had been
aggravated by her feet problems. He provided no explanation other than a conclusory statement
attributing appellant’s condition to her employment. Dr. Neal did not provide adequate medical
rationale to explain how the various conditions he diagnosed had been caused or aggravated by
her employment duties.13 Moreover, he did not start treating appellant until 2005 and she
stopped work in late 2003. Without additional explanation or rationale, Dr. Neal’s reports are
insufficient to establish causal relationship or show that appellant’s condition had been caused or
aggravated by her employment duties. The Board finds that Dr. Neal’s reports are insufficient to
establish a causal relationship between appellant’s diagnosed condition and employment factors,
as Dr. Neal did not provide sufficient explanation or rationale to fortify his conclusions.
Dr. Ugino did not address causal relationship and thus his report is insufficient to
establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is causal relationship between her claimed condition and her
employment.14 To establish causal relationship, she must submit a physician’s report in which
the physician reviews the employment factors identified as causing her condition and, taking
these factors into consideration as well as findings upon examination, state whether the
employment injury caused or aggravated the diagnosed conditions and present medical rationale
in support of his or her opinion.15 Appellant failed to submit such evidence in this case and,
therefore, has failed to discharge her burden of proof to establish that she sustained an
employment-related foot condition.

12

Victor J. Woodhams, supra note 4.

13

Roma A. Mortenson-Kindschi, 57 ECAB ___ (Docket No. 05-977, issued February 10, 2006) (where the Board
found that a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale).
14

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

15

Calvin E. King, 51 ECAB 394 (2000).

6

LEGAL PRECEDENT -- ISSUE 2
The Act16 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.17 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.18
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.19
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.20 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.21
ANALYSIS -- ISSUE 2
The Office denied appellant’s occupational disease claim on the grounds that the medical
evidence did not establish that her foot condition was causally related to her federal employment.
The Board finds that appellant’s request for reconsideration met none of the regulatory
requirements for a review of the merits of this decision.
Appellant’s January 9, 2007 request for reconsideration did not allege that the Office
erroneously applied or interpreted a specific point of law and did not advance a relevant legal
argument not previously considered by the Office. She is thus not entitled to further review on
the merits of her case under the first two sections of 10.606(b)(2).22 Though appellant stated that
new medical evidence formed the basis for reconsideration, the evidence she submitted with her
16

5 U.S.C. § 8101 et seq.

17

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

18

20 C.F.R. § 10.605.

19

20 C.F.R. § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

20

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

21

20 C.F.R. § 10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005).

22

20 C.F.R. § 10.606(b)(2)(i) and (ii).

7

request was duplicative of that previously considered; a December 12, 2006 nerve conduction
study and office notes for the period August 14 to November 13, 2006 by Dr. Neal. Neither
Dr. Neal nor the report of the diagnostic test discuss the cause of appellant’s condition. As there
was no new relevant or pertinent evidence for the Office to consider. Appellant was not entitled
to review under the third section of 10.606(b)(2).23
Because appellant did not meet any of the statutory requirements for a review of the
merits of her claim, the Office properly denied her January 9, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
developed an occupational disease over the course of her employment and that the Office
properly denied appellant’s request for reconsideration without conducting a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 27, 2007 and August 28, 2006 are affirmed.
Issued: September 21, 2007
Washington, DC

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

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

23

20 C.F.R. § 10.606(b)(2)(iii).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVCIE, POST OFFICE,
Saint Charles, IL, Employer
__________________________________________

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

Docket No. 16-0805
Issued: February 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 10, 2016 appellant, through counsel, filed a timely appeal from a February 3,
2016 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 the case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of the
left upper extremity.

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.

FACTUAL HISTORY
On August 29, 2011 appellant, then a 44-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sprained her left arm in the performance of
duty. OWCP accepted the claim for a sprain of the shoulder and upper arm at the left rotator
cuff, other specified disorders of the bursae and tendons of the left shoulder region, and a
complete left rotator cuff rupture.
On May 2, 2012 Dr. Arif Saleem, a Board-certified orthopedic surgeon, performed a left
rotator cuff repair, subacromial decompression, distal clavicle excision, and biceps tendon
tenotomy. On December 10, 2012 he performed a capsular release of the left shoulder to treat
adhesive capsulitis. Appellant was returned to work in a modified letter carrier position.3
Dr. Saleem on October 18, 2013 noted that appellant had undergone a left shoulder
rotator cuff repair on May 2, 2012 and a capsular release on December 10, 2012. He opined that
she had reached maximum medical improvement (MMI) on April 3, 2013 and released her from
care.
On December 6, 2013 appellant filed a claim for a schedule award (Form CA-7).
In an impairment evaluation dated December 30, 2013, Dr. Neil Allen, a Board-certified
internist and neurologist, discussed appellant’s complaints of pain and loss of motion in her left
shoulder. He found that she had reached MMI. On examination Dr. Allen measured muscle
strength of 4/5 of the left internal rotators. Referencing Table 15-34 on page 475 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), he utilized the range of motion (ROM) methodology to find left
shoulder impairment. Dr. Allen found that 125 degrees flexion equaled three percent
impairment, 30 degrees extension equaled one percent impairment, 80 degrees abduction equaled
six percent impairment, 30 degrees internal rotation equaled four percent impairment, and 45
degrees adduction and 80 degrees external rotation equaled no impairment. He combined the
impairments in loss of shoulder motion to find 14 percent permanent impairment of the left
upper extremity. Dr. Allen applied a grade modifier of 2 for loss of motion and a grade modifier
of 3 for functional history to find a total left upper extremity permanent impairment of 15
percent. He noted that the A.M.A., Guides allowed the use of the ROM method as an alternative
calculation for a rotator cuff tear and advised that for appellant it “reflected a more accurate
impairment than the DBI [diagnosis-based impairment] method.”
Dr. Saleem evaluated appellant on March 26, 2014 for left arm, neck, hand, and shoulder
blade numbness and tingling. He diagnosed cervical radiculitis and a history of prior shoulder
surgeries. Dr. Saleem related, “In terms of [appellant’s] shoulder, rating her recovery, I think I
can[not] really do that until her neck is resolved.”
On July 3, 2014 Dr. Saleem recommended a cervical magnetic resonance imaging (MRI)
scan. He measured ROM for the left shoulder as 170 degrees forward elevation, 100 degrees
3

By decision dated October 17, 2013, OWCP reduced appellant’s wage-loss compensation to zero based on its
finding that her actual earnings as a modified city carrier effective July 13, 2013 fairly and reasonably represented
her wage-earning capacity.

2

abduction, and 40 degrees external rotation. Dr. Saleem found radiculopathy through the left
arm and diagnosed cervical radiculitis.
The MRI scan study of the cervical spine, obtained on July 30, 2014, revealed a small
disc herniation at C4-5 without stenosis and a disc protrusion at C5-6 with mild foraminal
stenosis on the right, both more prominent than on a prior study, and a small central protrusion at
C3-4.
An OWCP medical adviser reviewed the record on September 15, 2014 and found that
the ROM findings obtained by Dr. Saleem on July 3, 2014 exceeded those obtained by Dr. Allen.
Using Table 15-5 on page 403 of the A.M.A., Guides, he identified the diagnosis as a rotator cuff
tear with residual loss which yielded a default value of five percent under the DBI method of
calculating permanent impairment. The medical adviser indicated that applying grade modifiers
would not alter the award. He found that appellant reached MMI on April 3, 2013 “when the
treatment for the shoulder was concluded and attention was shifted to the neck as the pain
generator.”
By decision dated April 1, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the left upper extremity. The period of the award ran for 15.6
weeks from August 10 to November 27, 2013.
On April 9, 2015 appellant, through counsel, requested a telephone hearing.
On October 28, 2015 Dr. Eugene P. Lopez, a Board-certified orthopedic surgeon,
requested that OWCP expand acceptance of appellant’s claim to include a cervical disc
herniation with radiculopathy.
At the telephone hearing, held on November 19, 2015, counsel contended that OWCP’s
medical adviser should have found seven percent impairment under the A.M.A., Guides given
his use of the DBI method. He also contended that OWCP medical adviser should have
determined whether Dr. Allen properly provided an impairment rating rather using his own
findings.
By decision dated February 3, 2016, the hearing representative affirmed the April 1, 2015
decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.4 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.5 FECA, however, does not specify the manner by which the percentage loss
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

3

5 U.S.C.

of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides.” The document included various changes to the original text, intended to
serve as an erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these
changes were formally incorporated into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 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.8
ANALYSIS
The issue on appeal is whether appellant has more than five percent permanent
impairment of the left upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.9
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.10 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the

6

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual,.
8

Isidoro Rivera, 12 ECAB 348 (1961).

9

T.H., Docket No. 14-0943 (issued November 25, 2016).

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.11
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the February 3, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 13, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

Supra note 9.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S POSTAL SERVICE, ST. JAMES PARK
STATION POST OFFICE, San Jose, Employer
__________________________________________

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

Docket No. 21-1106
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On July 12, 2021 appellant filed a timely appeal from a June 9, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $24,136.16, for the period November 1, 2017
through April 24, 2021, for which she was without fault, because she concurrently received Social
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the June 9, 2021 merit decision. 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.

Security Administration (SSA) age-related retirement benefits while also receiving FECA wageloss compensation without an appropriate offset; and (2) whether OWCP properly denied waiver
of recovery of the overpayment.
FACTUAL HISTORY
On July 6, 1990 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained multiple injuries when attacked from behind by an
unknown female assailant when loading her mail pouch while in the performance of duty. She
stopped work on the date of injury. A July 25, 1990 nonfatal summary (NFS) notes appellant’s
retirement plan code as “K,” indicating her enrollment in the Federal Employees Retirement
System (FERS) and Federal Insurance Contribution Act. On July 31, 1990 OWCP accepted the
claim for multiple abrasions. Appellant remained off work and OWCP paid her total disability
compensation through April 17, 1991. She returned to full-time restricted duty on April 18, 1991.
On January 7, 1994 OWCP accepted a recurrence of disability.
On May 18, 1995 OWCP expanded acceptance of the claim to include displacement of
lumbar intervertebral disc, a cervical disc bulge, and a lumbar sprain. It subsequently expanded
acceptance of the claim to include adjustment disorder with depressed mood.
Following a period of intermittent, part-time light-duty work, appellant retired from the
employing establishment effective September 17, 1998.3 OWCP paid wage-loss compensation
benefits on the periodic rolls. 4
On December 3, 2013 OWCP issued a letter advising appellant to notify OWCP upon her
receipt of SSA retirement benefits. It related that section 8116(d)(2) of FECA (5 U.S.C.
§ 8116(d)(2)) required that a claimant’s continuing compensation benefits be reduced if he or she
began receiving SSA retirement benefits based on his or her age and federal service. OWCP noted
that it was notifying appellant of this requirement as she had recently attained 62 years of age, the
minimum age at which an individual is eligible to receive SSA retirement benefits. It noted that
failure to report receipt of such retirement benefits to OWCP could result in an overpayment of
compensation, which could be subject to recovery. Consequently, if appellant had been approved
for SSA retirement benefits, or were currently receiving SSA retirement benefits, to contact OWCP
immediately so that it could begin the process of making any necessary adjustments to h er
compensation benefits.
On January 7, 2021 OWCP provided SSA with a dual benefits calculation form. It listed
the computation period as November 22, 2013 to present. On March 11, 2021 OWCP received
the completed FERS/SSA dual benefits calculation form, wherein SSA calculated SSA benefit
rates with a FERS offset and without a FERS offset from November 2017 through December 2020.
3
On April 20, 1999 OWCP granted appellant a schedule award for 29 percent permanent impairment of the right
upper extremity and 33 percent permanent impairment of the right lower extremity. The period of the award ran for
185.52 weeks from June 2, 1997 through December 21, 2000. OWCP subsequently reinstated appellant on the
periodic rolls.
4

On March 2, 2012 OWCP changed appellant’s status code to PN, entitled to payment on periodic rolls as she
remained totally disabled and her condition was “not expected to improve.”

2

Beginning November 2017, the SSA rate with FERS was $1,174.00 and without FERS was
$624.10. Beginning December 2017, the SSA rate with FERS was $1,197.40 and without FERS
was $636.50. Beginning December 2018, the SSA rate with FERS was $1,230.90 and without
FERS was $654.30. Beginning December 2019, the SSA rate with FERS was $1,250.50 and
without FERS was $664.70. Beginning December 2020, the SSA rate with FERS was $1,266.70
and without FERS was $673.30.
On May 7, 2021 OWCP prepared a FERS offset calculation based on the SSA
documentation wherein it noted the calculation of appellant’s overpayment from November 1,
2017 through April 24, 2021. It determined that, during the period November 1 through 30, 2017,
she received an overpayment in the amount of $543.86. For the period December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $6,749.29. For the
period December 1, 2018 through November 30, 2019, she received an overpayment in the amount
of $6,938.21. For the period December 1, 2019 through November 30, 2020, appellant received
an overpayment in the amount of $7,068.22. For the period December 1, 2020 through April 24,
2021, she received an overpayment in the amount of $2,836.58. The total overpayment was
determined to be $24,136.16.
In a letter dated May 7, 2021, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under FERS and
that portion required an offset of her FECA compensation benefits, in the amount of $593.40 every
28 days. OWCP indicated that, to account for her SSA offset, appellant’s FECA wage-loss
compensation would be adjusted to reflect a new net compensation amou nt of $2,494.25 effective
April 25, 2021.
On May 7, 2021 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $24,136.16 had been created because the
FERS/SSA offset was not applied to payments for the period November 1, 2017 through April 24,
2021 for this period. It determined that appellant was without fault in the creation of the
overpayment. OWCP requested that she submit a completed overpayment recovery questionnaire
(Form OWCP-20) to determine a reasonable repayment method and advised h er that she could
request a waiver of recovery of the overpayment. It further requested financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. OWCP advised appellant that it would deny waiver if
she failed to furnish the requested financial information within 30 days. It provided an
overpayment action request form and further notified her that, within 30 days of the date of the
letter, she could contest the overpayment and request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing. Appellant did not respond.
By decision dated June 9, 2021, OWCP finalized the May 7, 2021 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $24,136.16 because it had failed to offset her compensation payments for the period
November 1, 2017 through April 24, 2021 by the portion of her SSA benefits that were attributable
to federal service. It further found that she was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment because the evidence of record failed to establish
that recovery of an overpayment would defeat the purpose of FECA as she had not responded to

3

the request for financial information. OWCP further found that recovery of the overpayment
would not be against equity and good conscience as appellant had no t shown that she would
experience severe financial hardship in attempting to repay the debt, and that she had not asserted
detrimental reliance. It directed recovery of the overpayment by lump sum payment of $24,136.16.
Appellant was advised by OWCP that if she was unable to refund the entire amount that she should
contact OWCP if she wished to enter into an installment payment program.
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.5 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. 6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-related benefits that are attributable to federal
service of the employee. 7 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. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $24,136.16 for the period November 1, 2017 through April 24,
2021, for which she was without fault, as she concurrently received SSA age-related retirement
benefits and FECA wage-loss compensation without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to f ederal service for the same period. 9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to her federal service from November 1, 2017 through April 24, 2021.
Consequently, the fact of overpayment has been established.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); E.R., Docket No. 21-0133 (issued November 15, 2021); M.R., Docket No. 20-1622 (issued
June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 2021); see S.O., Docket No. 18-0254 (issued August 2,
2018); L.J., 59 ECAB 264 (2007).
8

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

9

See supra note 8; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795
(issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

4

To determine the amount of the overpayment, the portion of the SSA age-related retirement
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. SSA provided age-related retirement benefits
rates with and without FERS during the specific period November 1, 2017 through April 24, 2021.
OWCP provided its calculation for each relevant period based on a FERS offset calculation
worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2017 through April 24, 2021 and finds that an overpayment of compensation
in the amount of $24,136.16 was created.
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 with out 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 regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.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 current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics. 13 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. 14
OWCP’s procedures provide that the assets must not exceed a resource base o f $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

12

Id. at §§ 10.434-10.437.

13

Id. at § 10.436.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2020).

5

each additional dependent. 15 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per
immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry,
and artwork. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment 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. 17 Appellant, however, had the responsibility to provide the appropriate financial
information and documentation to OWCP, but failed to do so.18
In its preliminary overpayment determination dated May 7, 2021, OWCP explained the
importance of providing the completed Form OWCP-20 along with supporting financial
documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish
the requested financial information within 30 days. Appellant did not respond. As she did not
submit a completed Form OWCP-20 with supporting financial documentation of her income,
assets, and expenses, OWCP could not determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.19
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment of compensation.
On appeal, appellant contends that recovery of the overpayment would create financial
hardship as she remained totally disabled due to both occupational and nonoccupational
conditions. As noted above, she did not submit the financial information necessary for OWCP to
consider waiver of recovery of the overpayment.

15

Id. at Chapter 6.400.4a(2).

16

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

17

20 C.F.R. § 10.436.

18

Id. at § 10.438.

19

P.N., Docket No. 20-1159 (issued April 20, 2021); see S.W., Docket No. 20-0544 (issued September 21, 2020).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$24,136.16 for the period November 1, 2017 through April 24, 2021, for which she was without
fault, because she concurrently received SSA age-related retirement benefits while also receiving
FECA benefits without an appropriate offset. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment. 20
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.J., Docket No. 19-1163 (issued September 22, 2020); J.R.,
Docket No. 19-1418 (issued March 4, 2020). As OWCP did not direct recovery from appellant’s continuing
compensation benefits, the Board does not have jurisdiction over the method of recovery of the overpayment in this
case. 20 C.F.R. § 10.441(a).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION FAIRTON, Fairton, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-0564
Issued: October 12, 2021

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 February 28, 2021 appellant filed a timely appeal from a December 2, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated July 28, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant had abandoned his request
for an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2020 appellant, then a 26-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that on June 8, 2020 he felt a sharp pain throughout his left leg and
lower back, as well as tingling in his left foot, when he descended steps while in the performance
of duty. On the reverse side of the claim form,appellant’s supervisor indicated that appellant was
injured in the performance of duty.
In a radiology report dated June 8, 2020, Dr. David Nussbaum, a Board-certified
neuroradiology specialist, noted that appellant had chronic lower back pain. He diagnosed mild
levoscoliosis.
In a report dated June 9, 2020, Dr. Shahnawez Khan, a Board-certified family practice
specialist, related that appellant was seen for a follow up of back pain that began eight months ago.
Dr. Andrew J. Rickard, a chiropractor, completed a duty status report (Form CA-17) on
June 9, 2020 wherein he noted appellant’s work restrictions.
OWCP received a magnetic resonance imaging (MRI) scan report dated June 10, 2020
from Dr. Khan. Dr. Khan diagnosed appellant with levoscoliosis and a mild straightening of the
lumbar spine with loss of the lumbar lordotic curvature. He also diagnosed a L5-S1 left posterior
paracentral inferior disc extrusion, mild left neural foraminal stenosis at L5-S1, and mild central
spinal stenosis at L4-5.
In a development letter dated June 22, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It advised him of the type of
factual and medical evidence needed and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the necessary evidence
In response to OWCP’s development questionnaire, appellant stated that on June 8, 2020
he was walking down the steps of a housing unit and when he reached the landing he experienced
immediate pain went through his back and entire left leg.
Appellant submitted an assessment dated November 16, 2019 from a registered nurse at
the employing establishment health unit. The assessment indicated that appellant was injured on
November 16, 2019 and had a sharp radiating pain from his lower back to his left knee.
OWCP received a letter dated July 21, 2020 from Dr. Khan, wherein he related appellant’s
history of injury at work on June 8, 2020. Dr. Khan related that appellant walked down uneven
stairs, which caused him to twist his back and left leg. He diagnosed mild levoscoliosis, mild loss
of intervertebral disc height at L5, and an annular disc bulge and foraminal disc osteophyte
complex, which resulted in a mild central spinal canal stenosis. Dr. Khan opined that appellant
sustained a temporary reaggravation of a previously reported back condition, which disabled him
for work from June 9 through 20, 2020.
By decision dated July 28, 2020, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish his diagnosed medical condition was causally
related to the accepted employment incident.
2

On August 15, 2020 appellant timely requested a telephonic hearing before a representative
of OWCP’s Branch of Hearings and Review.
In a letter dated September 30, 2020, addressed to appellant’s last known address, OWCP’s
hearing representative advised him that a telephonic hearing would be held on November 5, 2020
at 12:45 p.m. Eastern Standard Time (EST). The hearing representative also provided appellant
with a toll-free telephone number and passcode for access to the hearing. Appellant did not appear.
By decision dated December 2, 2020, OWCP’s hearing representative found that appellant
failed to appear at the telephonic hearing and had abandoned his request. The hearing
representative indicated that appellant received a 30-day advance notice of the hearing scheduled
for November 5, 2020 and found that there was no evidence that he had contacted OWCP either
prior to or subsequent to the scheduled hearing to request a postponement or explain h is failure to
appear.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing upon writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. Unless otherwise
directed in writing by the claims examiner, an OWCP hearing representative will mail a notice of
the time and place of the hearing to the claimant and any representative at least 30 days before the
scheduled date. 2 OWCP has the burden of proving that it mailed notice of the scheduled hearing
to a claimant. 3 Section 10.622(f) of OWCP’s regulations provides that a claimant who fails to
appear at a scheduled hearing may request in writing within 10 days after the date set for t he
hearing that another hearing be scheduled. 4 Where good cause for failure to appear is shown,
another hearing will be scheduled and conducted by teleconference. The failure of the claimant to
request another hearing within 10 days, or the failure of the claimant to appear at the second
scheduled hearing without good cause shown, shall constitute abandonment of the request for a
hearing. Where good cause is shown for failure to appear at the second scheduled hearing, review
of the matter will proceed as a review of the written record. 5 Where it has been determined that a
claimant has abandoned his or her right to a hearing, OWCP will issue a formal decision finding
that the claimant abandoned the request for a hearing. 6

2

Id. at § 10.617(b).

3

T.R., Docket No. 19-1952 (issued April 24, 2020); A.R., Docket No. 19-1691 (issued February 24, 2020).

4

20 C.F.R. § 10.622(f).

5

Id.

6

T.R., supra note 3; A.J., Docket No. 18-0830 (issued January 10, 2019); Federal (FECA) Procedure Manual, Part
2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).

3

ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before a representative of OWCP’s Branch of Hearings and Review.
The record establishes that on September 30, 2020, in response to appellant’s timely
request for an oral hearing, a representative of OWCP’s Branch of Hearings and Review properly
mailed a notice of the telephonic hearing scheduled for November 5, 2020 at 12:45 p.m.EST. The
hearing notice was mailed to his last known address of record and provided instructions on how to
participate. Appellant failed to appear and call in for the scheduled telephonic hearing. He did
not request a postponement or provide an explanation to OWCP for his failure to attend the hearing
within 10 days of the scheduled hearing. The Board, thus, finds that OWCP properly determined
that appellant abandoned his request for a telephonic hearing. 7
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before a representative of OWCP’s Branch of Hearings and Review.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2021
Washington, DC

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

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

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

7

Id.

4