United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, LAPEER POST
OFFICE, Lapeer, MI, Employer
__________________________________________

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

Docket No. 18-0223
Issued: June 27, 2018

Case Submitted on the Record

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

JURISDICTION
On November 9, 2017 appellant, through counsel, filed a timely appeal from an August 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right ankle injury
causally related to the accepted November 21, 2016 employment incident.

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 November 23, 2016 appellant, then a 35-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1), alleging that, on November 21, 2016, she sustained a right
ankle sprain when her right ankle turned and popped while she was descending slippery steps from
a porch, while in the performance of her federal employment duties. She stopped work on
November 23, 2016.
In a supplemental statement, appellant asserted that she was assigned to pick up eight
packages from 2210 Broker Road. When she arrived, there were 77 packages waiting for pick up.
On her fourth trip to retrieve the packages, appellant’s right ankle “went all the way out” and she
hit some decorations, but did not fall all the way down. Appellant informed her supervisor that
she had twisted her ankle. She sought medical treatment on November 22, 2016. Appellant
provided a note dated November 22, 2016 from a nurse practitioner with an illegible signature.
In a development letter dated November 30, 2016, OWCP requested additional factual and
medical evidence in support of appellant’s claim. It afforded her 30 days for a response.
Appellant underwent right ankle x-rays on January 6, 2017 which were read as normal.
Dr. John Olenyn, Board-certified orthopedic surgeon, completed a form report on January 9, 2017
and diagnosed sprained right ankle.
By decision dated January 13, 2017, OWCP denied appellant’s traumatic injury claim,
finding that although she had established that the employment incident occurred as alleged, she
had not provided medical evidence of diagnosed condition as required to establish fact of injury.
On December 12, 2016 Dr. Olenyn noted appellant’s history of injury on November 21,
2016 when ascending stairs and noted “sounds like she sustained an inversion injury of the ankle.”
He diagnosed right ankle sprain and treated appellant with a protective boot. Dr. Olenyn
recommended that appellant undergo physical therapy and wean herself from the protective boot.
He released appellant to light-duty work on December 12, 2016. Dr. Olenyn examined appellant
on January 9, 2017 and continued to diagnose right ankle sprain.
In a letter dated January 25, 2017, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
Dr. Olenyn examined appellant on February 13, 2017 and noted that she had not started
physical therapy, but was still wearing braces and working with restrictions. In a March 13, 2017
note, he diagnosed right ankle sprain with no swelling, deformity, and crepitus. On March 30,
2017 Dr. Olenyn released appellant to full-duty work.
Appellant testified during the oral hearing held on June 22, 2017. She described the events
of November 21, 2016 as being assigned Route 2 and a pick up notice for packages off of Bullock
Road.3 Appellant was notified of 8 packages for pick up, but found 77 packages when she arrived
3
As previously noted, in her initial statements appellant indicated her injury occurred on Broker Road rather than
Bullock Road. It is unclear from the record whether this was a misstatement by appellant or an error of the court
reporter.

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at the address. She notified her supervisor of this via telephone and the supervisor instructed her
to retrieve all the packages. On her fourth trip to collect the packages, appellant’s right ankle
“went all the way out” appellant felt and heard a pop and fell to her right.) When she returned to
the employing establishment appellant reported the incident to her manager, D.H. The following
day, appellant sought medical treatment. She denied any previous right ankle injuries.
D.H. responded in an undated statement and disputed appellant’s assignment to pick up
packages on November 21, 2016 on Bullock Road. She did recall appellant’s statement to her on
November 21, 2016 that she had slipped and turned her ankle. D.H. also provided her assessment
of the medical evidence as well as appellant’s condition on November 21, 2016. Appellant
responded to D.H.’s statement on August 14, 2017 and corrected the address of her injury to 2210
Broker Road as noted in her original statement.
By decision dated August 23, 2017, OWCP’s hearing representative found that appellant
had established that the November 21, 2016 employment incident occurred as alleged, and that she
had provided medical evidence of a diagnosed condition (right ankle sprain). However, he denied
appellant’s claim as the medical evidence of record did not establish causal relationship between
her diagnosed condition and her accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish 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 of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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

4

Supra note 1.

5

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

6

A.D., id. 5; T.H., 59 ECAB 388 (2008).

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employment factors identified by the claimant.7 This medical opinion must include an accurate
history of the employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right ankle
injury causally related to the accepted November 21, 2016 employment incident.
It is undisputed that on November 21, 2016 appellant was descending stairs and slipped
while collecting packages in the performance of her federal employment duties. However
appellant failed to submit sufficient medical evidence to establish that this employment incident
caused or aggravated her right ankle condition.9
In support of her claim, appellant submitted medical reports from Dr. Olenyn. Dr. Olenyn
described appellant’s employment activities on November 21, 2016 as ascending stairs and noted
“sounds like she sustained an inversion injury of the ankle.” He first examined appellant on
December 12, 2016 due to right ankle pain and diagnosed right ankle sprain. The Board finds that
the opinion of Dr. Olenyn is of limited probative value. While Dr. Olenyn suggested that
appellant’s injuries were caused by the November 21, 2016 employment incident, he did not
provide a proper history of injury. Appellant alleged that she was descending stairs, slipped, and
fell twisting her ankle. However, Dr. Olenyn related that appellant was ascending stairs when she
inverted her right ankle. The Board has held that medical opinions based on an inaccurate history,
are of diminished probative value.10
Dr. Olenyn also failed to provide a sufficient explanation as to the mechanism of injury
pertaining to this traumatic injury claim, namely how a possible inversion injury could result in a
right ankle sprain.11 Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.12 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record,
and provide medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.13 Without explaining how physiologically the
7

A.D., supra note 5; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

9

M.E., Docket No. 17-1857 (issued February 2, 2018).

10

See J.F., Docket No. 17-1075 (issued January 8, 2018).

11

S.H., supra note 8; S.W., Docket No. 08-2538 (issued May 21, 2009).

12

S.H., supra note 8; Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

S.H., supra note 8; Lee R. Haywood, 48 ECAB 145 (1996).

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movements involved in the accepted employment incident caused or contributed to the diagnosed
condition, Dr. Olenyn’s opinion on causal relationship is equivocal in nature and of limited
probative value.14 The Board disagrees with counsel’s assessment of the medical evidence.
Appellant submitted reports from a nurse practitioner. However, the Board has held that
nurse practitioners are not considered physicians under FECA. Therefore, their reports are not
considered medical evidence and have no probative value.15
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.16 Appellant’s honest belief that the November 21,
2016 employment incident caused her medical conditions is not in question, but that belief,
however sincerely held, does not constitute the medical evidence to establish causal relationship.17
On appeal counsel contends that the medical evidence is sufficient to meet appellant’s
burden of proof and that OWCP’s decision “nit picks” even though causal relationship is clear and
unequivocal. For the reasons explained above, the Board finds that the evidence of record is
insufficient to meet appellant’s burden of proof.
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 a right ankle
injury causally related to the accepted November 21, 2016 employment incident.

14

S.H., supra note 8; L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued
April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued
November 16, 2012).
15

See F.M., Docket No. 16-1848 (issued March 16, 2018); 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); 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).
16

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

17

G.E, id.; H.H., Docket No. 16-0897 (issued September 21, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 27, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
FEDERAL JUDICIARY, U.S. BANKRUPTCY
COURT, Miami, FL, Employer
__________________________________________

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

Docket No. 07-108
Issued: March 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 16, 2006 appellant filed a timely appeal from the August 17, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of appellant’s case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 17, 2005.
FACTUAL HISTORY
On October 18, 2005 appellant, then a 60-year-old property and procurement specialist,
filed a claim alleging that he sustained a low back injury in the performance of duty the previous
day: “I picked up 10 cases of envelopes from the mailroom on the 1st floor and transported them
to the 15th floor. Having reached the storeroom I began checking in the envelopes and while
moving one of the cases I experienced excruciating pain in my back.”

On December 12, 2005 Dr. Bernard Gran, a consulting neurologist, related what
happened on October 17, 2005: “[Appellant] was picking up boxes and then slinging them to his
right and developed left lower back pain. He rested for a while picked up a box again and the
pain came back.” Dr. Gran noted a motor vehicle accident two years earlier, but appellant
denied injury. He continued: “I do have her [sic] report of [computerized tomography] scan or
lumbar spine performed on November 10, 2005 which revealed at the L4-5 level a central and
left paracentral herniated disc.”
On December 16, 2005 Dr. John T. McAdory, appellant’s family practitioner, noted the
history “hurt back lifting at work.” He diagnosed lumbar disc herniation with left radiculitis and
with an affirmative mark indicated that this condition was caused or aggravated by an
employment activity.
Dr. Gran examined appellant on January 3 and February 3, 2006. He diagnosed a small
lumbar herniated disc with no evidence of lumbar radiculopathy. Appellant underwent physical
therapy.
On July 12, 2006 the Office asked appellant to submit additional information to support
his claim, including his physician’s opinion, supported by medical explanation, as to how the
reported work incident caused or aggravated the claimed injury. “This explanation is crucial to
your claim,” the Office advised. The Office acknowledged a diagnosis of a central and left
paracentral herniated disc at the L4-5 level but noted that there was no medical rationale
establishing that this condition was caused or aggravated by the October 17, 2005 work incident.
In a decision dated August 27, 2006, the Office denied appellant’s claim for
compensation. The Office found that the medical evidence did not explain how the October 17,
2005 employment activities caused or aggravated the L4-5 central and left paracentral herniated
disc.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
1

5 U.S.C. §§ 8101-8193.

2

See generally John J. Carlone, 41 ECAB 354 (1989); Abe E. Scott, 45 ECAB 164 (1993).

3

Mary J. Briggs, 37 ECAB 578 (1986).

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factual and medical background of the claimant,4 must be one of reasonable medical certainty5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
ANALYSIS
The Office does not dispute appellant’s activities on October 17, 2005. Appellant
explained that he transported boxes of envelopes to the 15th floor, began checking in the
envelopes and while moving one of the cases experienced back pain. Dr. Gran, the consulting
neurologist, noted that appellant was slinging the boxes to his right and developed left lower
back pain. Appellant has established that he experienced a specific event or incident occurring at
the time, place and in the manner alleged. The question that remains is whether this incident
caused an injury.
Dr. McAdory, the attending family practitioner, submitted a report dated
December 16, 2005. He indicated with an affirmative mark that an employment activity caused
or aggravated appellant’s lumbar disc herniation with left radiculitis. This, however, is not
enough to establish the claim. The Board has held that, when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, that opinion has little probative
value and is insufficient to establish causal relationship.7 Appellant’s burden includes the necessity
of furnishing an affirmative opinion from a physician who supports his conclusion with sound
medical reasoning. As the Office notified appellant on July 12, 2006, such explanation is crucial
to his claim. Because Dr. McAdory did not explain how he came to his opinion, his December 16,
2005 form report is not sufficient to establish that appellant sustained an injury in the performance
of duty on October 17, 2005.
On appeal, appellant points to the December 12, 2005 report of Dr. Gran, the consulting
neurologist, who reported appellant’s work activity on October 17, 2005 and that a
November 10, 2005 electrodiagnostic study revealed an L4-5 central and left paracentral
herniated disc. Dr. Gran did not address the causal relationship between the two. He offered no
opinion on whether appellant’s work activities on October 17, 2005 caused the herniated disc; or
if the herniated disc was preexisting, whether appellant’s work activities aggravated it. Without
an opinion on causal relationship, Dr. Gran’s report is of diminished probative value to establish
appellant’s claim for compensation.8

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

8

As with Dr. McAdory’s form report, a bare opinion without sound medical reasoning is of little value. To
establish the element of causal relationship, Dr. Gran would have to offer not only an opinion on causal relationship
but he would have to clarify to the Office why his opinion is sound, logical and medically rational.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on October 17, 2005.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Yuma, AZ, Employer
__________________________________________

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Appearances:
Linda J. Cerasale, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1383
Issued: December 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 2, 2014 appellant, through his representative, filed a timely appeal of a
February 3, 2014 merit decision and a May 7, 2014 nonmerit 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,079.47 for the period September 1, 2012 through December 14, 2013 because he
received full compensation benefits concurrent with Social Security Act (SSA) retirement
benefits; (2) whether appellant was at fault in creating the overpayment, thereby precluding
waiver of recovery; (3) whether OWCP properly required repayment of the overpayment by
deducting $300.00 every 28 days from appellant’s continuing compensation; and (4) whether
OWCP properly denied appellant’s request for a prerecoupment hearing.
1

5 U.S.C. § 8101 et seq.

On appeal, appellant argues that he was unaware that he was receiving dual benefits as he
thought he was in receipt of disability benefits and not retirement benefits from SSA.
FACTUAL HISTORY
This case has previously been before the Board. The Board, by decision dated April 10,
2001, set aside OWCP’s October 25, 1999 denial of appellant’s request for the purchase of a
whirlpool spa tub due to a conflict in the medical opinion evidence.2 OWCP had accepted that
he sustained cervical and lumbosacral strains, internal derangement of the left knee and
subluxation at L5 when he slipped on a truck step on December 4, 1985.3 In an October 29,
2004 decision, the Board reversed OWCP’s September 15, 2003 decision terminating
compensation.4 The Board, in an April 18, 2005 decision reversed a June 23, 2004 OWCP
decision concerning an overpayment of compensation as it found that he was not in receipt of
dual payments for the period April 1, 1990 through October 4, 2003.5 On August 23, 2005 the
Board issued an order denying the Director’s petition for reconsideration.6
Appellant completed and signed a Form EN1032 on September 7, 2013 indicating that he
had not worked for the previous 15 months, was not self-employed and had not received either
retirement benefits or SSA benefits as part of an annuity under the Federal Employees
Retirement System (FERS). He noted that he received SSA benefits for his private sector
employment and disability. This form stated, “I understand that I must immediately report to
OWCP any improvement or employment activity, any change in the status of claimed
dependents, any third-party settlement, and any monies or income or change in monies or income
from federally assisted disability or benefit programs.”
In a facsimile (fax) transmittal dated September 24, 2013, OWCP requested SSA to
provide information regarding the dual benefits appellant received. It forwarded a form entitled
“FERS SSA DUAL BENEFITS CALCULATIONS FAX TRANSMITTAL.” Appellant’s name,
date of birth and social security number were noted on the form. OWCP also provided
information regarding the date he was first eligible to receive benefits under FECA. The form
asked SSA to provide separate benefit calculations of SSA with FERS and SSA without FERS.
An SSA representative responded on November 19, 2013. Effective September 2012,
appellant’s SSA rate with FERS was $1,453.90 a month. Excluding his FERS contributions, he
would have received only $1,385.20 in SSA benefits a month. Beginning December 2012, the
amounts increased to $1,478.60 (with FERS) and $1,408.70 (without FERS). Effective

2

Docket No. 00-1203 (issued April 10, 2001).

3

On the nonfatal summary sheet, OWCP lists appellant’s post-traumatic stress syndrome under concurrent
disabilities not due to the accepted employment injury.
4

Docket No. 04-253 (issued October 29, 2004).

5

Docket No. 04-2136 (issued April 18, 2005).

6

Order Denying Petition for Reconsideration, Docket No. 04-2136 (issued August 23, 2005).

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December 5, 2013, OWCP reduced appellant’s 28-day compensation rate by $64.52 based on the
recent information provided by SSA.
On December 30, 2013 OWCP issued a preliminary overpayment determination finding
that appellant received an overpayment of compensation in the amount of $1,079.47 for the
period September 1, 2012 through December 14, 2013. It explained that part of his SSA
retirement benefits were subject to offset. For the period September 1 through November 30,
2012, the FERS offset (based on 28 days) was $2.2648 per day for 91 days equaling $206.10.
For the period December 1, 2012 through December 14, 2013 the FERS offset (based on 28
days) was $2.3044 per day for 379 days equaling $873.37. This created an overpayment in the
amount of $1,079.47. OWCP noted that appellant’s compensation had not been reduced
effective September 1, 2012 and thus, an overpayment existed. It found that he was at fault in
the creation of the overpayment because he should have known or reasonably been aware that he
was not entitled to receive SSA retirement benefits and FECA benefits at the same time. OWCP
advised appellant of his right to either request a telephone conference, request a decision on the
written record, or to request a prerecoupment hearing with the Branch of Hearings and Review.
Appellant was afforded 30 days to respond in writing to the preliminary determination but did
not respond.
By decision dated February 3, 2014, OWCP finalized the overpayment decision. It
denied waiver of recovery of the overpayment because appellant was at fault in the creation of
the overpayment. OWCP directed recovery of the overpayment by deducting $300.00 from his
continuing compensation payments every 28 days.
In a letter dated February 4, 2014, appellant and his wife requested a prerecoupment
hearing and submitted a completed overpayment questionnaire form.
By decision dated May 7, 2014, the Branch of Hearings and Review denied appellant’s
February 5, 2014 request for a hearing finding that, “The final decision concerning an
overpayment is not subject to the hearing provision of 5 U.S.C. § 8124(b).” It noted that it did
not receive a request for a hearing following the preliminary overpayment determination.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.7
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply: “in disability cases, FECA benefits will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal

7

5 U.S.C. § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued
February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

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service.”8 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain
information from SSA in the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without
the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service and that
amount will be deducted from FECA benefits to obtain the amount of compensation payable.9
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation and SSA benefits from September 1,
2012 to December 14, 2013. As previously stated, the portion of SSA benefits he earned as
federal employee as part of his FERS retirement package and the receipt of benefits under FECA
and FERS benefits concurrently is a prohibited dual benefit.10 OWCP requested and SSA
provided information regarding appellant’s applicable SSA rates and their effective dates. Based
on these rates, it determined that the prohibited dual benefits he received from September 1,
2012 to December 14, 2013, created an overpayment of compensation in the amount of
$1,079.47.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period September 1, 2012 to December 14, 2013 and finds that it properly determined that he
received benefits totaling $1,079.47 for this period, thus creating an overpayment of
compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA11 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA of would be against equity and
good conscience.12
OWCP may consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each recipient of
8

See also R.C., Docket No. 09-2131 (issued April 2, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11
(February 1995); OWCP does not require an election between FECA benefits and SSA benefits except when they
are attributable to the employee’s federal service.
9

FECA Bulletin No. 97-09 (issued February 3, 1997). Retirement benefits paid by OPM or SSA can be paid
concurrently with a schedule award without any deduction from FECA benefits.
10

See P.G., Docket No. 13-589 (issued July 9, 2013); FECA Bulletin No. 97-9 (issued February 3, 1997).

11

5 U.S.C. § 8129(b).

12

J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55
ECAB 245 (2004).

4

compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she received from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in reporting events, which may affect entitlement to or the amount of
benefits. A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment: (1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) Failed to provide information which he or
she knew or should have known to be material; or (3) Accepted a payment which he or she knew
or should have known to be incorrect (this provision applies only to the overpaid individual).13
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.14
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment because he accepted a
payment that he knew or should have known was incorrect. However, it did not adequately
explain this finding. OWCP based fault on appellant’s knowledge that he knew he was receiving
SSA retirement benefits and not disability benefits. It bases its decision on an assumption that he
should have been aware that his SSA disability payments had been converted into retirement
benefits. OWCP has offered no proof supporting this contention. Appellant has stated that he
was unaware that his benefits from SSA were for retirement and not for his disability. OWCP
must establish that he knew or should have known beginning September 2012 that he was
accepting both SSA and FERS retirement benefits and FECA compensation benefit. The Board
finds that the record is devoid of any evidence showing that appellant was aware that his SSA
disability benefits became part of his FERS retirement benefits on September 1, 2012. As
OWCP has not shown that he knew or should have known that he was accepting dual payments,
it erred in finding that he was at fault in the creation of the overpayment.
The Board will set aside OWCP’s February 3, 2014 decision on the issue of fault. On
remand, OWCP must determine whether appellant is eligible for waiver of recovery of the
overpayment and if he is not, OWCP must, by law, recover the debt. The Board will remand the
case for further development of the evidence on appellant’s current financial circumstances and
for an appropriate final decision on the issue of waiver.15
LEGAL PRECEDENT -- ISSUE 4
OWCP regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.16 Failure to request the prerecoupment hearing within 30 days shall
13

20 C.F.R. § 10.433(a).

14

Id. at § 10.433(b).

15

In view of the Board’s decision on waiver, the issue on recovering the overpayment from continuing
compensation payments is moot.
16

20 C.F.R. § 10.432.

5

constitute a waiver of the right to a hearing.17 The only right to a review of a final overpayment
decision is with the Board.18 The hearing provisions of section 8124(b) of FECA do not apply to
final overpayment decisions.19
ANALYSIS -- ISSUE 4
The December 30, 2013 preliminary determination of overpayment provided appellant
with a right to request a prerecoupment hearing within 30 days. As noted above, if a claimant
does not request a hearing within 30 days, it is considered a waiver of the right to a hearing.20
When the final overpayment decision is issued, there is no right to a hearing or a review of the
written record and OWCP does not have discretion to grant such a request. The only right to
appeal is with the Board.21 As appellant’s written request for a hearing was dated more than
30 days after the December 30, 2013 preliminary determination, it was untimely and he thus
waived his right to a prerecoupment hearing.22 Furthermore, the Branch of Hearings and Review
properly advised appellant that the decision was not subject to the hearing provision under
5 U.S.C. § 8124(b).23
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,079.47 and that OWCP properly denied his request for a
prerecoupment hearing before an OWCP hearing representative as it was untimely filed. The
Board further finds that OWCP has not established that appellant was at fault in creating this
overpayment and the case is remanded for further development on the issue of waiver of
recovery of the overpayment.

17

Id.; see also L.C., 59 ECAB 569 (2008); Willie C. Howard, 55 ECAB 564 (2004).

18

20 C.F.R. § 10.440(b).

19

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

20

20 C.F.R. § 10.432.

21

Id. at 10.440(b).

22

20 C.F.R. § 10.432; see also A.M., Docket No. 13-222 (issued September 25, 2013) and E.V., Docket No.
10-1284 (issued February 3, 2011) (where appellants not only untimely requested a prerecoupment hearing
following a preliminary overpayment determination, but also submitted said request after the preliminary
determination was finalized).
23

Id. at § 10.440(b); see A.M. and E.V., id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2014 is affirmed. The decision of OWCP dated
February 3, 2014 is affirmed in part, set aside in part and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: December 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 20-0364
Issued: March 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 4, 2019 appellant filed a timely appeal from a November 25, 2019 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 OWCP received additional evidence following the November 25, 2019 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability from work, commencing September 9, 2019, causally related to his accepted July 1,
2014 employment injury.
FACTUAL HISTORY
On July 2, 2014 appellant, then a 31-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on July 1, 2014 he dislocated his right shoulder when he tried to
intercept a vehicle while in the performance of duty. On August 29, 2014 OWCP accepted the
claim for sprain of right shoulder and upper arm, superior glenoid labrum lesion; sprain of right
shoulder and upper arm, rotator cuff; and other specified disorder of bursae and tendons in the
shoulder region on the right.3 It paid appellant wage-loss compensation on the supplemental rolls
from November 5, 2017 to January 6, 2018, on the periodic rolls from January 7, 2018 until
March 31, 2018, and on the supplemental rolls again from April 1, 2018 to September 9, 2019.
In a March 30, 2018 report, Dr. Geoffrey M. Millican, a Board-certified orthopedic
surgeon, diagnosed impingement syndrome of the right shoulder, incomplete rotator cuff tear or
rupture of the right shoulder, not specified as traumatic, bicipital tendinitis, right shoulder, and
superior glenoid labrum lesion of right shoulder sequela. He opined that he was “unsure why
[appellant] had global weakness…” with a negative electromyography and nerve conduction
velocity (EMG/NCV) study. Dr. Millican advised that he would allow appellant to return to work
with sedentary restrictions, as he “could not use his right/dominant extremity.” On March 30,
2018 he completed a work capacity evaluation (Form OWCP-5c) advising sedentary duty,
including sitting and standing as tolerated and position change every 15 minutes. Dr. Millican
indicated that maximum medical improvement was reached “for biceps only.”
In an April 3, 2018 memorandum, the employing establishing indicated that appellant was
approved for light duty until April 6, 2018. It noted that his assignment would be based on his
ability to perform assigned functions based upon his physician’s instructions. On May 23, 2018
the employing establishment continued appellant’s light-duty assignment until June 8, 2018.
In a May 25, 2018 memorandum, the employing establishment confirmed that on May 23,
2018 appellant returned to work, four hours per day, restricted duty.
OWCP received diagnostic reports. A May 8, 2017 magnetic resonance imaging (MRI)
scan of the right shoulder interpreted by Dr. Richard Anguiano, a Board-certified diagnostic
radiologist, revealed Os-acromiale, postsurgical changes at superior glenoid with magnetic
susceptibility artifacts, no definite labral tear and biceps tenosynovitis. An August 3, 2017 MRI
scan of the right shoulder read by Dr. Golden Pan, a radiologist, revealed several findings, which
3

Appellant has a prior claim for a May 26, 2008 traumatic injury under OWCP File No. xxxxxx150. OWCP
accepted the claim for sprain of shoulder and upper arm, acromioclavicular, on the right. The record reflects that, in
that claim, appellant reached maximum medical improvement on January 28, 2009 and returned to regular duty. He
also has a prior claim for a September 20, 2017 traumatic injury under OWCP File No. xxxxxx533. This claim was
accepted for right shoulder sprain.

2

included a full-thickness tear of the anterior third of the supraspinatus. A February 9, 2018
electrodiagnostic study of appellant’s right upper extremity was within normal limits. A June 28,
2018 electrodiagnostic study related to appellant’s right rotator cuff strain, right superior glenoid
labrum lesion, and right shoulder lesion, was within normal limits. The examiner noted that
appellant appeared to have developed a conversion syndrome in which he was not moving any of
the muscles of the upper right limb. He related that he could not identify any electrodiagnostic
abnormality that would explain the complete paralysis of the right upper limb.
In a June 7, 2018 report, Dr. John V. Puig, II, Board-certified in family practice and sports
medicine, noted that appellant had significant worsening of his symptoms. He completed a work
capacity (Form OWCP-5c) and indicated that appellant could not perform his usual job due to
decreased range of motion (ROM) of the right shoulder. Dr. Puig recommended a sedentary, fourhour workday, “desk duty only.”
On April 2, 2019 OWCP referred appellant for a second opinion examination with
Dr. James Butler, a Board-certified orthopedic surgeon, to determine appellant’s work capabilities
and whether he continued to suffer residuals of the employment injury.
In a May 8, 2019 report, Dr. Butler noted appellant’s history of injury and treatment and
the accepted conditions in the claim. He explained that appellant continued to suffer from residuals
of the work-related injury and had developed psychosomatic paralysis of the right upper extremity
with no strength, no mobility, and visible atrophy. Dr. Butler indicated that no further treatment
was warranted, however, the prognosis was poor from an orthopedic standpoint. He noted that
appellant might need further mental health evaluation for his conversion syndrome. Dr. Butler
advised that appellant had reached MMI and opined that appellant could not return to work as a
border patrol agent. However, he noted that appellant could perform sedentary desk duty with no
use of his right upper extremity.
On June 14, 2019, OWCP received an undated report from Dr. Puig, who noted that he had
reviewed the report from Dr. Butler. Dr. Puig indicated that he concurred with Dr. Butler’s
opinion, with the exception that it was his opinion that appellant was unable to perform sedentary
duty. He explained that appellant had made several attempts to return to work, but was unable to
complete more than four hours of sedentary duty per day and was unable to perform the duties
appropriately. Dr. Puig opined that appellant was unemployable in any capacity.
In a June 28, 2019 impairment rating, Dr. Daniel C. Valdez, a Board-certified orthopedic
surgeon, indicated that appellant had lost complete function and range of motion of his entire right
upper extremity. He assigned an impairment rating of 100 percent to the right upper extremity.
On July 12, 2019 OWCP determined that a conflict existed between Dr. Puig and
Dr. Butler regarding appellant’s ability to work. It referred appellant to Dr. James Hood, a Boardcertified orthopedic surgeon, for an impartial medical examination.
In an August 22, 2019 report, Dr. Hood noted appellant’s history of injury and treatment
and his review of the statement of accepted facts (SOAF). He found that appellant would not sit
for the examination or remove the sling on his right arm and that no physical examination was
possible. Dr. Hood noted that an EMG/NCV study was unrevealing. He indicated that he was

3

“astounded that in reviewing the medical records” there were no imaging studies. Dr. Hood
advised that additional diagnostic evidence was needed, to include imaging studies of the right
shoulder.
Appellant stopped all work on September 1, 2019.4
In a September 9, 2019 addendum report, Dr. Hood noted his review of a September 4,
2019 MRI scan and advised that it did not reveal any physical reason for appellant’s inability to
move his arm. He opined that appellant could work eight hours per day with restrictions only to
the right arm. Dr. Hood strongly recommended a psychiatric examination to determine whether
appellant had a conversion disorder, as opposed to malingering.
In a September 12, 2019 report, Dr. Puig noted that appellant presented for evaluation of
his right shoulder injury from July 1, 2014. He diagnosed right shoulder anterior superior labral
tear, right shoulder rotator cuff supraspinatus strain, right shoulder pain, right shoulder effusion,
right shoulder impingement syndrome, mild conversion disorder, and anxiety disorder due to a
known physiological condition. Dr. Puig opined that appellant was “unable to use the right arm at
any capacity whatsoever.” He opined that appellant had reached MMI and that he did not expect
any further improvement regarding the use of the right arm. Dr. Puig noted that he concurred with
appellant awaiting full medical discharge. In an accompanying September 12, 2019 work capacity
evaluation (Form OWCP-5c), he advised that appellant was permanently disabled from work.
On October 3, 2019 appellant filed a wage-loss compensation (Form CA-7) claiming
recurrent disability from work for the period from September 1 to 14, 2019.
In a development letter dated October 10, 2019, OWCP advised appellant of the
deficiencies of his wage-loss compensation claim and requested that he submit additional factual
and medical evidence supporting that he was disabled from employment for the claimed period.
It requested a report from his physician addressing the relationship between his claimed period of
disability and his employment injury. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a September 12, 2019 report, Dr. Puig diagnosed right shoulder anterior superior labral
tear, right shoulder rotator cuff/supraspinatus strain, right shoulder pain, right shoulder effusion,
right shoulder impingement syndrome, and mild conversion disorder. He recommended an Ortho
Cor active system to manage appellant’s pain and assist with returning him to work.
By decision dated November 25, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that he was disabled from work
commencing September 9, 2019. It accorded the special weight of the evidence to IME Dr. Hood,
who opined that appellant was capable of returning to full-duty work with permanent restrictions.

4

The employing establishment noted that appellant had medically retired.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim.6 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.7
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.8 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.9
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.10
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the limited-duty requirements.11
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.12
5

Supra note 1.

6

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

7

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

8

T.W., Docket No. 19-1286 (issued January 13, 2020).

9

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

10

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

11

C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
12

Id.

5

FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.13
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.14 Where OWCP has referred the case to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and
based upon a proper factual background, must be given special weight.15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP properly determined that there was a conflict between Dr. Puig and Dr. Butler, the
second opinion physician, regarding appellant’s ability to work. In order to resolve the conflict, it
properly referred appellant to Dr. Hood for an impartial medical examination and an opinion on
the matter, pursuant to 5 U.S.C. § 8123(a).
However, the Board finds that further development is warranted as the reports by Dr. Hood
are insufficient to carry the special weight of the medical evidence.
In his August 22, 2019 report, Dr. Hood opined that he was “astounded” that there were no
imaging studies for his review. The Board notes the record contains MRI scans dated May 8 and
August 2, 2017. It is unclear why he was not provided with these records. While Dr. Hood
obtained a September 4, 2019 MRI scan, the record does not reflect that he was provided with the
prior MRI scans for review. Dr. Hood’s review of appellant’s medical history was, therefore, not
based upon a complete record.
Additionally, Dr. Hood concluded that appellant could work eight hours per day with
restrictions pertaining to his right arm; however, he did not specify appellant’s restrictions. In this
regard, the Board notes that the record does not include a position description describing the
physical requirements of appellant’s date of injury position, nor does the record include any written
offer of modified limited duty, with the physical requirements of the modified assignment, after
the date of injury. The Board is therefore unable to ascertain whether, given appellant’s physical
restrictions, he could perform the duties of his date-of-injury position, or a modified limited-duty
position if available to him on September 9, 2018. The Board also notes that Dr. Hood strongly
recommended a psychiatric examination to determine whether appellant had a conversion disorder.
However, OWCP did not develop the evidence in this regard.
As Dr. Hood did not have appellant’s prior imaging studies for his review, did not have a
position description or offer of modified limited duty which described the physical requirements
of appellant position, and as OWCP failed to develop the evidence with regard to his

13
14

5 U.S.C. § 8123(a); 20 C.F.R. § 10.321; see C.B., supra note 11; Shirley L. Steib, 46 ECAB 309, 317 (1994).
R.N., supra note 11; Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15
Y.I., Docket No. 20-0263 (issued November 30, 2020); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T.,
Docket No. 08-1675 (issued May 4, 2009); Gary R. Sieber, 46 ECAB 215, 225 (1994).

6

recommendation for a psychiatric evaluation, the Board finds that his opinion did not resolve the
conflict regarding appellant’s ability to work, and his reports are not entitled to special weight.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.16 Once
it undertakes development of the record, OWCP must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.17
On remand OWCP shall obtain appellant’s position description and any written offer of
modified work pertaining to appellant’s work status on September 9, 2018. It shall also refer
appellant for a psychiatric examination to determine whether he had an employment-related
conversion disorder. OWCP shall then refer appellant’s entire medical record to Dr. Hood and
request that he provide a supplemental opinion. After this and other such further development as
deemed necessary, it shall issue a de novo decision.18
CONCLUSION
The Board finds that this case is not in posture for decision.

16

See J.C., Docket No. 20-0064 (issued September 4, 2020); L.B., Docket No. 19-0432 (issued July 23, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).
17

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

18

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the
issues depends on frequent cross-referencing between case files. See Federal (FECA) Procedure Manual, Part 2 -Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000). On remand as the present claim and
appellant’s prior claims File No. xxxxxx150, and File No. xxxxxx533 involve similar conditions, OWCP shall
administratively combine the claims for a full and fair adjudication of the present claim.

7

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.19
Issued: March 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, WESTERN
REGIONAL OFFICE, San Francisco, CA,
Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1292
Issued: January 31, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 12, 2006 appellant filed a timely appeal from a February 16, 2006 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 24, 2005 on the grounds that her accepted cervical and
lumbar strains had resolved; (2) whether she met her burden of proof to establish that she had a
consequential emotional condition caused by her accepted conditions; and (3) whether appellant
established that she had any continuing employment-related disability after May 24, 2005.

FACTUAL HISTORY
On July 31, 1991 appellant, then a 50-year-old accounting technician, sustained
employment-related cervical and lumbar strains when she was injured by a door while on travel
status in Washington, DC. She returned to work intermittently until December 3, 1991.
Appellant stopped work and was placed on the periodic rolls. An April 22, 1992 cervical spine
magnetic resonance imaging (MRI) scan demonstrated incipient cervical spondylosis at C6-7 and
was otherwise normal. Lumbar spine MRI scan demonstrated minimal incipient degeneration of
the lumbosacral disc with a minimal bulge without compression. By decision dated May 18,
1992, appellant’s request for an attendant allowance was denied. On July 9, 1993 she was
terminated by the employing establishment.
By report dated March 19, 1997, Dr. Norman M. Harris, Board-certified in orthopedic
surgery, reported that her MRI scans were unchanged. On March 22, 1997 appellant sustained
an injury when she tripped and fell at a grocery store. In April 1997, she came under the care of
Dr. Fred Blackwell, a Board-certified orthopedic, surgeon, who noted her complaints of diffuse
pain involving multiple body parts including both hips, both shoulders, both elbows, neck and
back. Dr. Blackwell diagnosed chronic lumbosacral strain and sprain with fibromyalgia and
probable functional overlay. In 2001, appellant had left knee surgery and, in 2003, underwent
triple bypass surgery. In July 2004, she moved to Texas.
On December 8, 2004 the Office1 referred appellant to Dr. Robert M. Chouteau, a Boardcertified osteopath specializing in orthopedic surgery. By report dated January 11, 2005,
Dr. Chouteau noted the history of injury, his review of the record and appellant’s complaints of
cervical, thoracic, lumbar, left arm and leg pain, dysesthesias and weakness. Cervical, thoracic
and lumbar spine examination demonstrated point tenderness with full range of motion. Tinel’s,
Phalen’s and straight leg raising tests were negative bilaterally. Thoracic and lumbar spine
x-rays were normal. Cervical spine x-ray demonstrated paraspinal musculature spasms. He
diagnosed traumatic cervical, thoracic, lumbar myositis/strain with no neurocirculatory deficit of
the upper or lower extremities. Dr. Chouteau opined that, although appellant’s cervical and
lumbar strains had not completely resolved, they were much improved and she could return to
work as an accounting technician with a 10-pound lifting restriction. Electromyography and
nerve conduction studies of the upper and lower extremities were performed at his request and
demonstrated mild left peroneal motor neuropathy. In a functional capacity evaluation,
Dr. Chouteau noted that appellant did not exert full effort and advised that she could return to her
previous sedentary position.
By letter dated February 3, 2005, the Office informed appellant that it proposed to
terminate her wage-loss compensation on the grounds that she had no continuing employmentrelated disability from work.

1

In March 1992, the Office referred appellant to Dr. Michael R. Bartos, a Board-certified psychiatrist,
Dr. Alan C. Roth, a Board-certified physiatrist, and Dr. Steven J. Holtz, a Board-certified neurologist, for second
opinion evaluations and to Dr. James R. Cole, Ph.D., for neuropsychological testing. In July 1992, she underwent
pain management.

2

Appellant disagreed with the proposed termination. She submitted a January 31, 2005
report from Dr. Richard Espey, a Board-certified physiatrist, who noted the history of injury and
appellant’s complaints of severe pain. Physical examination demonstrated tenderness in the
cervical and lumbar regions. Cervical spine x-ray was unremarkable and lumbar spine x-ray
demonstrated mild spondylosis with mild disc space narrowing at L5-S1. He diagnosed status
post employment injury with chronic cervical and lumbar pain with possible fibromyalgia.
By decision dated March 8, 2005, the Office terminated appellant’s wage-loss
compensation, finding that the weight of the medical evidence rested with the opinion of
Dr. Chouteau.
Appellant thereafter submitted a February 23, 2005 report in which Dr. Espey advised
that she should not work due to her severe pain, limited mobility, limited sitting and limited
ability to write, type or do other desk-type activity. On March 30, 2005 the Office vacated the
March 8, 2005 decision and returned appellant to the compensation rolls. The Office found that
a conflict in medical evidence had been created between Drs. Espey and Chouteau regarding
appellant’s disability and work capabilities.
On April 18, 2005 the Office referred appellant to Dr. Robert E. Holladay, Boardcertified in orthopedic surgery, for an impartial medical evaluation.2 In reports dated May 6,
2005, Dr. Holladay noted the history of injury, his review of medical records beginning in 1993
and appellant’s ongoing chronic pain symptoms involving multiple areas. Appellant stated that
she was unable to sit for any length of time without experiencing excruciating pain. Examination
of the cervical spine demonstrated tenderness to palpation with inconsistent motion testing.
Range of motion of the shoulders, wrists, elbows, hands, fingers, hips, knees and ankles was
normal bilaterally. Sensory examination of the upper and lower extremities was normal. Tinel’s
and Phalen’s tests were negative bilaterally. Straight leg raising in the sitting and supine
positions was negative to 90 degrees with complaints of low back pain in all positions.
Dr. Holladay advised that when appellant reported for a functional capacity evaluation her blood
pressure was uncontrolled and testing was limited to two minutes. The test was invalid due to
inappropriate effort. Dr. Holladay opined that both her cervical and lumbar strains had resolved
with no objective documentation of structural damage to her body. Appellant’s current
complaints were not related to the 1991 employment injury, noting that they did not have an
anatomic or physiological basis. Dr. Holladay concluded that appellant could return to her
regular job as an accounting technician with no restrictions.
By decision dated May 24, 2005, the Office terminated appellant’s compensation
benefits, effective that day.
In June 2005, appellant returned to California and on June 21, 2005 requested a hearing.
On November 3, 2005 she requested that her claim be expanded to include depression, stress and
anxiety caused by the 1991 injury. Appellant’s representative argued that the statement of
accepted facts should have included a psychological component. He also noted that
2

Dr. Holladay was furnished with the medical record, a statement of accepted facts that included a position
description and a set of questions. The statement of accepted facts indicated that the accepted conditions were
cervical and lumbar strains.

3

Dr. Holladay had not reviewed the 1992 medical reports of the Office referral physicians. In an
October 25, 2005 report, Dr. David C. Roberts, Ph.D., a clinical psychologist, noted the history
of injury, a review of limited medical evidence and appellant’s complaint of depression, anxiety,
worry and pain which had worsened since her injury. He performed psychological testing and
advised that appellant’s clinical presentation of depression was consistent with testing and
suggestive of moderate to severe anxiety which was potentially disruptive of her ability to
function. Dr. Roberts diagnosed major depressive disorder, moderate, chronic. He opined that
her pain was not fabricated but was perceived as exquisite and chronic and was disruptive to her
daily life. Dr. Roberts concluded that her condition hampered her ability to concentrate
adequately or to sustain the requisite cognitive focus demanded of a full-time employee.
At the hearing held on December 20, 2005, appellant testified about her ongoing medical
condition and that she had received no medical care from December 2003 until January 2005.
She submitted reports dated January 13 and 19, 2006 from Dr. Jeffrey K. Teraoka, Boardcertified in internal medicine and physiatry. Dr. Teraoka noted that she had chronic pain
complaints since the July 1991 employment injury and had been seen in his clinic since 1993
with diagnoses of fibromyalgia, fibromyositis and myofascial pain.
Musculoskeletal
examination demonstrated normal range of motion of the cervical spine and Spurling, Hoffman
and straight leg raising tests were negative with bilateral 5 out of 5 strength in her upper and
lower extremities and bilateral intact upper extremity sensation, which was slightly diminished in
the left lateral aspect of the left lower extremity. Dr. Teraoka advised that she needed continued
management of pain and further psychological-psychiatric evaluation secondary to pain.
In reports dated January 19 and 24, 2006, Dr. Michael E. Hebrard, a Board-certified
physiatrist, noted the history of injury and appellant’s treatment course and complaints of chronic
pain. Physical examination demonstrated voluntary muscle guarding in the cervical and lumbar
areas with painful decreased active range of motion and diffuse weakness in the upper and lower
extremities. Dr. Herbrard diagnosed cervical and lumbar discogenic pain and provided physical
restrictions that appellant sit and stand at will with no repetitive bending or twisting at the waist
or turning of the head and neck. He opined that there was a causal relationship between the
employment injury and her current complaints, noting that appellant showed signs of progressive
deterioration and advised that she needed ongoing treatment to help reduce her pain and level of
anxiety.
By decision dated February 16, 2006, an Office hearing representative found that, even
though it was not clear whether Dr. Holladay reviewed the 1992 second opinion evaluations, he
discussed appellant’s medical condition and treatment in detail. Therefore, he had sufficient
information on which to base his opinion that appellant’s accepted conditions had resolved and
that she could return to her previous position as an accounting technician. The hearing
representative further noted that the more recent examinations were more relevant to appellant’s
condition in 2005 than those rendered in 1992. As Dr. Holladay’s report was well reasoned and
thorough, it represented the special weight of medical opinion. The hearing representative found
that the Office properly terminated appellant’s compensation benefits and that appellant had not
established that she sustained a consequential emotional condition.

4

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
Section 8123(a) of the Federal Employees’ Compensation Act5 provides that 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.6 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on May 24, 2005. The Office determined that a conflict in the medical
evidence had been created between the opinions of Dr. Chouteau who provided a second opinion
evaluation for the Office and Dr. Espey, an attending physiatrist, regarding appellant’s work
capabilities. The Office then properly referred appellant to Dr. Holladay, Board-certified in
orthopedic surgery, for an impartial evaluation.8 In comprehensive reports dated May 6, 2005,
Dr. Holladay noted the history of injury, his review of medical records beginning in 1993 and
appellant’s ongoing chronic pain symptoms involving multiple areas and her report that she was
unable to sit for any length of time without experiencing excruciating pain. Physical findings
included cervical spine tenderness to palpation with inconsistent motion testing. Range of
motion of the shoulders, wrists, elbows, hands, fingers, hips, knees and ankles was normal
bilaterally and sensory examination of the upper and lower extremities was normal. Tinel’s and
Phalen’s tests were negative bilaterally. Straight leg raising in the sitting and supine positions
was negative to 90 degrees with complaints of low back pain in all positions. He reported that
functional capacity evaluation was invalid due to inappropriate effort. Dr. Holladay opined that
both cervical and lumbar strains had resolved, noting that they did not have an anatomic or
physiological basis with no objective documentation of structural damage to her body and that

3

Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

7

Manuel Gill, 52 ECAB 282 (2001).

8

Supra note 6.

5

her current complaints were not related to the 1991 employment injury. He concluded that she
could return to her regular job as an accounting technician with no restrictions.
The Board notes that, while it is unclear whether Dr. Holladay reviewed the 1992 medical
reports secured by the Office, this does not reduce the probative value of his opinion as the
relevant medical evidence would be that most contemporaneous with the termination of benefits
in 2005, 13 years later.9 Dr. Holladay provided a well-rationalized evaluation in which he
clearly advised that any residuals of appellant’s July 1991 cervical and lumbar strains had
resolved. The Board finds it is entitled to special weight as a referee opinion.10 The Office met
its burden of proof to terminate appellant’s compensation benefits on May 24, 2005.11
LEGAL PRECEDENT -- ISSUE 2
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.12
ANALYSIS -- ISSUE 2
Subsequent to the May 24, 2005 termination of compensation benefits, appellant
requested that her claim be expanded to include depression, stress and anxiety. The Board finds
that appellant submitted insufficient medical evidence to establish a consequential relationship
between these conditions and the accepted cervical and lumbar strains. The evidence relevant to
her claimed emotional condition consists of an October 25, 2005 report from Dr. Roberts who
noted complaints of depression, anxiety, worry and pain, which had worsened since appellant’s
injury. He reported that psychological testing was suggestive of moderate to severe anxiety
which, along with her chronic pain, was disruptive to her daily life and hampered her ability to
concentrate adequately or to sustain the requisite cognitive focus demanded of a full-time
employee. Dr. Roberts, however, did not address the cause of the diagnosed depression. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13
Dr. Teraoka merely advised that appellant needed further psychological-psychiatric evaluation.
Dr. Hebrard diagnosed cervical and lumbar discogenic pain and opined that there was a causal
relationship between the employment injury and appellant’s current complaints. He noted that
9

See generally Lan Thi Do, 46 ECAB 366 (1994).

10

Manuel Gill, supra note 7.

11

Id.

12

Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

13

Willie M. Miller, 53 ECAB 697 (2002).

6

appellant showed signs of progressive deterioration and advised that she needed ongoing
treatment to help reduce her pain and level of anxiety. However, he did not provide adequate
medical rationale to explain how appellant’s accepted cervical and lumbar strains caused or
contributed to her anxiety other than attributing this to her pain complaints. Appellant bears the
burden of proof as no psychiatric disorder has been accepted as employment related. The Board
finds that the medical evidence of record is insufficient to discharge appellant’s burden of proof
to establish that her depression, stress and anxiety are consequences of the accepted July 19,
1991 cervical and lumbar strains.14
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any continuing disability causally related to his
accepted injuries.15 To establish a causal relationship between the condition, as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence, based on a complete factual and medical background, supporting such a causal
relationship.16 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.17 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.18
Under the Act, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in the Act.19 Furthermore, whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.20

14

See Debra L. Dillworth, 57 ECAB ____ (Docket No. 05-159, issued March 17, 2006).

15

Manuel Gill, supra note 7.

16

Id.

17

Donna L. Mims, 53 ECAB 730 (2002).

18

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

19

Cheryl L. Decavitch, 50 ECAB 397 (1999).

20

Fereidoon Kharabi, 52 ECAB 291 (2001).

7

ANALYSIS -- ISSUE 3
The Board finds that appellant submitted insufficient medical evidence to establish that
she continued to be disabled from the accepted cervical and lumbar strains after May 24, 2005.
While Dr. Roberts advised that appellant was totally disabled due to chronic pain and depression,
he did not provide any opinion or explanation regarding the accepted conditions or how her
disability was due to the accepted conditions. A physician’s opinion on causal relationship
between a claimant’s disability and an employment injury is not dispositive simply because it is
rendered by a physician. To be of probative value, the physician must provide rationale for the
opinion reached. Where no such rationale is present, the medical opinion is of diminished
probative value.21
In reports dated January 13 and 19, 2006, Dr. Teraoka noted that appellant had had
chronic pain complaints since the July 1991 employment injury. On physical examination he
found a negative straight leg raising test and 5/5 strength in both upper and lower extremities and
diagnosed fibromyalgia, fibromyositis and myofascial pain. These conditions, however, have
not been accepted as employment related and Dr. Teraoka did not provide an opinion regarding
appellant’s ability to work. Dr. Hebrard noted diffuse bilateral weakness in appellant’s upper
and lower extremities, a finding in contrast to that found by Dr. Teraoka who had examined
appellant earlier in January 2006. Dr. Hebrard diagnosed cervical and lumbar discogenic pain
and provided physical restrictions that appellant sit and stand at will with no repetitive bending
or twisting at the waist or turning of the head and neck. He opined that there was a causal
relationship between the employment injury and appellant’s current complaints, noting that she
showed signs of progressive deterioration and advised that she needed ongoing treatment to help
reduce her pain and level of anxiety. The Board, however, finds his opinion of diminished
probative value as he provided insufficient rationale for his stated conclusions. Dr. Hebrard
physical findings appear inconsistent with those found at approximately the same time by
Dr. Teraoka. The Board finds that appellant submitted insufficient medical evidence to establish
that he had any continuing disability after May 24, 2005 causally related to the July 31, 1991
employment injury.22
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 24, 2005. The Board further finds that appellant failed to
meet her burden of proof to establish that she sustained a consequential emotional condition or
that she had any disability after May 24, 2005 causally related to her accepted conditions.

21

Thaddeus J. Spevack, 53 ECAB 474 (2002).

22

Leslie C. Moore, supra note 18.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2006 be affirmed.
Issued: January 31, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, NORTHERN OHIO
PERFORMANCE CLUSTER, Cleveland, OH,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-160
Issued: May 23, 2012

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 31, 2011 appellant timely filed an application for review from the June 27,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for modification of an OWCP wage-earning capacity determination dated
April 26, 2002.1 The Board assigned Docket No. 12-160.
OWCP accepted that on November 13, 1998 appellant, then a 39-year-old clerk,
sustained a cervical strain, herniated L4-5 disc and lumbar radiculopathy due to lifting and
carrying a mail tray. At the time of her November 13, 1998 work injury, appellant was working
on a full-time basis for the employing establishment.
On February 23, 2002 appellant returned to light-duty work as a modified clerk for the
employing establishment, working four hours per day for a total of 20 hours per week. In an
April 26, 2002 decision, OWCP reduced appellant’s compensation based on its determination
that her actual earnings in this position fairly and reasonably represented her wage-earning
capacity. Appellant stopped work on September 10, 2010 and requested modification of
1

Appellant also timely filed an application for review from the October 6, 2011 nonmerit decision of OWCP
denying her request for further review of the merits of her case.

OWCP’s April 26, 2002 wage-earning capacity determination. In a November 22, 2010
decision, OWCP denied appellant’s request for modification of its April 26, 2002 wage-earning
capacity determination. In a June 27, 2011 decision, an OWCP hearing representative affirmed
OWCP’s November 22, 2010 decision.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.2 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.3 Compensation payments are based on the wage-earning capacity
determination and it remains undisturbed until properly modified.4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
OWCP’s procedure manual provides that the factors to be considered in determining
whether the claimant’s work fairly and reasonably represented her wage-earning capacity include
the kind of appointment and the tour of duty. The manual states that reemployment may not be
considered suitable when the actual earning job is part time, unless the claimant was a part-time
worker at the time of injury.7
OWCP found that appellant’s actual earnings in part-time reemployment for 20 hours per
week fairly and reasonably represented her wage-earning capacity. Appellant was a full-time
worker at the time of her November 13, 1998 work injury. As the above-noted procedure makes
clear, the Director of OWCP has determined that when the tour of duty is not at least equivalent
to that of the job held at the time of injury, OWCP will not consider the reemployment suitable
for a wage-earning capacity determination. The Board finds, therefore, that OWCP abused its

2

See Katherine T. Kreger, 55 ECAB 633 (2004); 5 U.S.C. § 8115 (regarding determination of wage-earning
capacity).
3

See 5 U.S.C. § 8115.

4

See 5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

5

Sharon C. Clement, 55 ECAB 552 (2004).

6

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).

2

discretion in determining appellant’s wage-earning capacity based on a part-time position.8 The
Board will reverse OWCP’s June 27, 2011 decision.9
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 23, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

O.V., Docket No. 11-98 (issued September 30, 2011); S.M., Docket No. 10-2382 (issued September 28, 2011).

9

Given the Board’s finding regarding OWCP’s June 27, 2011 merit decision, it is not necessary for the Board to
consider OWCP’s October 6, 2011 nonmerit decision.

3