United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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

Docket No. 09-84
Issued: February 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated August 1, 2008 denying her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury on May 7, 2007 in the performance of duty.
FACTUAL HISTORY
On May 23, 2007 appellant, then a 25-year-old letter carrier, filed a traumatic injury
claim alleging that she sustained a pinched sciatica nerve and lumbar sprain on May 7, 2007 due
to repetitive bending while delivering mail on a route with low mail slots. She stopped work on
May 9, 2007 and returned to work on May 15, 2007. The employing establishment controverted
her claim.

Appellant submitted several medical documents in support of her claim. In a May 8,
2007 emergency room treatment note, Dr. Alicia Faller, Board-certified in emergency medicine,
diagnosed low back strain and instructed appellant not to work the following day. She also
advised no driving routes and no carrying routes for work until cleared by her primary care
physician. In a May 14, 2007 status report, Dr. Christopher Short, a family medicine specialist,
diagnosed lumbar sprain and sciatica. He advised that appellant could return to work on May 15,
2007 provided there would be limited squatting and kneeling and no repetitive lifting over
10 pounds. In a May 21, 2007 status report, Dr. Short confirmed his diagnosis and advised that
appellant could return to work that day with limited bending and squatting. He released
appellant from his care. Appellant also submitted a May 25, 2007 status report from Jon Petkers,
a physical therapist, who diagnosed lumbar sprain and sciatica.
In a June 1, 2007 letter, the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence. It requested
that appellant provide a physician’s report explaining how the claimed injury resulted in the
diagnosed condition.
In response, appellant submitted a May 21, 2007 progress note from Dr. Short, who
stated that appellant returned for a recheck of the injury sustained on May 7, 2007. Dr. Short
reiterated his diagnosis of lumbar sprain and sciatica and advised modified activity of bending
and squatting as tolerated. On May 30, 2007 he noted that appellant was able to perform regular
activities and could return to work that day. Dr. Short released appellant from his care.
Appellant also submitted a May 25, 2007 progress note from Mr. Petkers and a May 30, 2007
progress note from Barbara Wendell, a physical therapist.
In a July 6, 2007 decision, the Office denied appellant’s claim for compensation finding
that she did not establish that her back condition resulted from the accepted incident and that the
medical evidence did not support causal relationship.
Appellant requested reconsideration and submitted a May 8, 2007 emergency room report
from Dr. Faller, who noted appellant’s subjective complaint of low back pain radiating down her
legs due to carrying her mailbag and that she did lots of bending at work. She diagnosed low
back strain. In a May 8, 2007 diagnostic report, Dr. David Langdon, a Board-certified diagnostic
radiologist, interpreted x-rays of appellant’s lumbar spine and noted that the vertebral height was
intact, the curvature was intact and no pars fractures were seen. He also noted some sclerosis at
the L5-S1 levels. In a May 14, 2007 report, Dr. Short stated that appellant complained of a back
injury sustained on May 7, 2007 when delivering mail and bending for low mail slots. He noted
that appellant reported that she was on a different delivery route and had to do more bending.
Dr. Short diagnosed lumbar sprain and sciatica and noted that appellant’s condition limited her
ability to perform the essential functions of her job. Appellant submitted physical therapy
progress notes from Mr. Petkers dated May 15 to 23, 2007. She also submitted an undated
statement explaining that she injured her back on May 7, 2007 while delivering a full route with
low, small mail slots.
In an August 1, 2008 decision, the Office denied modification of its July 6, 2007
decision, finding that the medical evidence was insufficient to establish causal relationship
between appellant’s job duties and her diagnosed condition.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record supports that appellant had to bend while delivering mail through mail slots
on May 7, 2007. However, appellant has not submitted sufficient medical evidence to establish
that this employment activity caused or aggravated her low back condition.
In a May 14, 2007 treatment note, Dr. Short advised that appellant complained of
sustaining a back injury from delivering mail on May 7, 2007. However, he did not opine that
her lumbar strain and sciatica were the result of bending while delivering mail on that day.
Rather, Dr. Short’s treatment note described appellant’s subjective complaint and her own belief
as to the cause of her back condition. To the extent that his recounting of her history may be
viewed as support for causal relationship, he did not provide any medical rationale or reasoning,
1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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explaining how bending at work on May 7, 2007 would have caused or aggravated her diagnosed
lumbar strain and sciatica. Similarly, Dr. Short’s May 21, 2007 progress note stated that the
purpose of the visit was for him to recheck appellant’s May 7, 2007 injury. However, he did not
describe the specifics of the accepted incident and did not explain how bending while delivering
mail would have caused or aggravated a diagnosed condition.5 Moreover, Dr. Short’s
subsequent reports only provided a diagnosis and work restrictions; the physician did not address
causal relationship. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.6
Dr. Faller’s May 8, 2007 emergency room report notes appellant’s subjective complaint
that her low back pain was caused by carrying her mailbag. However, she does not specifically
address the cause of appellant’s diagnosed condition. As noted, appellant must submit a
physician’s medical opinion supporting causal relationship. Dr. Faller’s May 8, 2007 emergency
room treatment note provided a diagnosis and work restrictions but did not address causal
relation. Dr. Langdon’s May 8, 2007 x-ray report did not address whether there was a causal
relationship between appellant’s diagnosed condition and her employment duties. Furthermore,
the reports of appellant’s physical therapists are of no probative value as physical therapists are
not physicians as defined under the Act.7 As a result, they are not competent to provide a
medical opinion.
Consequently, the medical evidence of record fails to establish that appellant’s work
duties on May 7, 2007 caused her diagnosed condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a traumatic injury on May 7, 2007 in the performance of duty.

5

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

7

See Barbara Williams, 40 ECAB 649 (1989). See 5 U.S.C. § 8101(2).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 1, 2008 is affirmed.
Issued: February 17, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ayer, MA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Sarah Tunney, Esq., for the Director

Docket No. 15-1758
Issued: May 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 19, 2015 appellant filed a timely appeal from a March 4, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20 C.F.R. §§ 501.2 and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of her
medical condition causally related to her December 27, 2010 employment injury.
On appeal a memorandum of justification was received on behalf of the Director of
OWCP. In this memorandum, the Director argues that appellant has not met her burden of proof
to establish a recurrence of medical condition because more than 90 days elapsed after
appellant’s release from medical care to the alleged recurrence; therefore, appellant was
responsible for submitting a medical report supporting causal relationship between her current
condition and the accepted injury.

FACTUAL HISTORY
On December 28, 2010 appellant, then a 38-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 27, 2010 she slipped on ice on the compound walkway
and sustained a right knee strain. The record does not indicate that she stopped work. OWCP
accepted the claim for right knee strain. On February 16, 2011 Dr. Robert O. Voight, a Boardcertified internist, diagnosed improved right knee strain and released appellant from medical care
for her work-related condition. He advised that she could continue to work without restrictions
and should transition from physical therapy to a home exercise program.
On December 4, 2014 OWCP received appellant’s September 8, 2014 claim for
recurrence of disability for medical treatment (Form CA-2a) of the accepted right knee condition.
Evidence submitted with the claim included appellant’s undated statement received December 4,
2014 and a September 3, 2014 right knee magnetic resonance imaging (MRI) scan report.
In a September 2, 2013 report, Dr. Eric Holstein, a Board-certified orthopedic surgeon,
reported a history of an initial right knee injury playing basketball in 1988 and right knee anterior
cruciate ligament (ACL) reconstruction in 1991. He noted that appellant reinjured her right knee
at work on December 27, 2010 during a fall and he noted her current complaints of right and left
knee pain. Dr. Holstein diagnosed severe right knee degenerative joint disease and mild left
knee degenerative joint disease. He reported no change on physical examination. An assessment
of knee degenerative joint disease and arthropathy of knee joint was provided. In a November 4,
2013 attending physicians report, Dr. Holstein noted that appellant had preexisting knee
osteoarthritis and injured her right knee at work on December 27, 2010. He opined with a
checkmark in a box marked “yes” that her current severe medial bone-on-bone arthropathy and
lower leg joint pain was caused or aggravated by employment activity. Dr. Holstein noted that
appellant had not been disabled since 2011. A return to work slip noted that appellant has been
seen on October 24, 2013 for knee arthritis related to a fall at work on December 27, 2010.
In an August 28, 2014 report, Dr. Gregory Soghikian, a Board-certified orthopedic
surgeon, noted that appellant’s history of problems with the right knee dated back to high school
sports and an ACL reconstruction in 1991. He also noted that she had a slip and fall on ice at
work in 2010. The knee did relatively well until October 2013 when appellant started to
complain of right knee pain. Dr. Soghikian presented examination findings and noted that the xrays obtained showed severe osteoarthritic collapse of the medial joint and a screw in the
proximal lateral femur consistent with a prior ACL reconstruction. He diagnosed severe
osteoarthritis, medial compartment, which he opined was due to appellant’s old injury and her
old surgery, which was likely a meniscectomy. Dr. Soghikian opined that her work-related
injury in 2010 was not a substantial contributing factor as she had not sought treatment for the
knee ongoing since 2010 and osteoarthritic changes after meniscectomy were fairly well
established complications of ACL injury and meniscectomy. A total knee replacement was
recommended.
Medical reports from Dr. Kathleen Hogan, a Board-certified orthopedic surgeon, were
also received. In a September 16, 2014 report, Dr. Hogan noted the history of injury as well as
the initial right knee injury in high school and ACL reconstruction. She noted that appellant was
diagnosed in 2013 with arthritis and that anti-inflammatories did not help. Dr. Soghikian had

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referred appellant to her. She provided examination findings and reviewed x-rays and diagnosed
knee arthritis. Dr. Hogan agreed with Dr. Soghikian that a total knee replacement was the best
option for appellant. She advised that, based on the history of the fall, it was difficult for her to
make a clear determination of whether or not this injury was related to the development of
arthritis without more information. Progress reports dated October 28 and November 14, 2014
were also provided. It was noted that, while a knee replacement was in appellant’s future, it
should be put off as along as possible.
In a January 30, 2015 letter, OWCP acknowledged appellant’s request for continued
medical treatment due to a consequential condition, specifically an aggravation of her right knee
arthritis caused by the original injury. It advised that for her to be entitled to additional medical
treatment for her work injury after being released from care, or not receiving care for a
significant period of time, she needed to provide evidence that her need for treatment was due to
a worsening of the accepted medical condition without an intervening cause. OWCP noted that
appellant was released from medical care for her work-related condition on February 16, 2011.
It explained that the medical evidence submitted was insufficient to establish her recurrence
claim. It requested that she provide additional factual evidence along with copies of all medical
records for the work-related knee condition and a comprehensive, narrative medical report from
her treating physician, which contained an opinion supported by medical rationale as the
relationship between her current medical condition and need for treatment and the original
injury. Appellant was accorded 30 days to submit the requested evidence.
In response, OWCP received evidence previously of record along with a February 21,
2015 authorization request form.
By decision dated March 4, 2015, OWCP denied the claimed recurrence of medical
condition. It found that the evidence was insufficient to establish that appellant required
additional medical treatment due to the December 27, 2010 work injury. OWCP advised that her
claim remained closed for medical care.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances, and supplies prescribed or recommended by a qualified
physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or
the period of any disability, or aid in lessening the amount of any monthly compensation.1
Recurrence of medical condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when there is no accompanying
work stoppage. Continuous treatment for the original condition or injury is not considered a
need for further medical treatment after release from treatment, nor is an examination without
treatment.2

1

5 U.S.C. § 8103(a).

2

20 C.F.R. § 10.5(y).

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If a claim for recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet
her burden.3
An employee has the burden of proof to establish that he or she sustained a recurrence of
a medical condition that is causally related to his or her accepted employment injury. To meet
this burden, the employee must submit medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, supports that the condition is causally related
and supports her conclusion with sound medical rationale.4
ANALYSIS
OWCP accepted that appellant’s December 27, 2010 employment injury resulted in right
knee strain. On December 4, 2014 it received her September 8, 2014 claim for a recurrence of
medical condition for medical treatment of the accepted right knee condition.
The record reflects that appellant last sought treatment for her work-related knee
condition on February 16, 2011, when Dr. Voight diagnosed improved right knee strain and
released her from medical care. Although Dr. Voight did not formally discharge appellant from
treatment for her work-related condition, a sufficiently lengthy gap in treatment has the same
effect as a formal discharge.5
Appellant then briefly sought treatment from Dr. Holstein from September through
November 2013, where she was diagnosed with severe right knee degenerative joint disease and
mild left knee degenerative joint disease. Dr. Holstein reported a history of an initial right knee
injury in 1988, ACL reconstruction in 1991, and a fall at work on December 27, 2010. While he
opined in a November 4, 2013 attending physician’s report that her current severe medial boneon-bone arthropathy and lower leg joint pain was caused or aggravated by employment activity
and had advised in a return to work slip of October 24, 2013 that the knee arthritis was related to
fall at work on December 27, 2010, Dr. Holstein failed to provide a well-rationalized medical
opinion regarding the relationship between the currently diagnosed arthritis to either the 1999
right knee injury, the 1991 surgery or the December 27, 2010 work injury. While in his
November 4, 2013 attending physician’s report Dr. Holstein noted by checking a box marked
“yes” that appellant’s current condition was caused or aggravated by her employment, the Board
has held that a checkmark “yes” or affirmative notation in response to a form question on causal
relationship is insufficient, without medical rationale, to establish causal relationship.6 Medical

3

Federal (FECA) Procedure Manual, Part 2 -- Recurrences, Chapter 2.1500.4(b). (June 2013); see also J.M.,
Docket No. 09-2041 (issued May 6, 2010).
4

O.H., Docket No. 15-0778 (issued June 25, 2015).

5

See Kent W. Rasmusen, Docket No. 04-1137 (issued August 4, 2004).

6

B.M., Docket No. 15-1233 (issued October 1, 2015).

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evidence that does not offer any rationalized opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.7
Appellant’s release from active treatment in 2011 followed by the periods of relative
inactivity beginning at that time and after 2011 justify OWCP’s request that she submit a
reasoned medical opinion establishing that the additional medical treatment was causally related
to an objective worsening of the accepted medical condition without intervening cause.8 As
noted by the Director, because more than 90 days elapsed from appellant’s last medical treatment
to her claim of recurrence of disability, it is appellant’s burden of proof to establish causal
relationship.
The evidence of record does not establish that appellant’s current need for medical care is
related to the work-related injury of December 27, 2010. Dr. Soghikian, in his August 28, 2014
report, opined that the severe osteoarthritis found in the medial compartment, was due to her old
injury and her old surgery, which was likely a meniscectomy. He explained that her workrelated injury in 2010 was not a substantial contributing factor as she had not sought treatment
for the knee since 2010 through now and that osteoarthritic changes after meniscectomy were a
fairly well-established complication of ACL injury and meniscectomy. In her September 15,
2014 report, Dr. Hogan noted the history of the work injury, the prior right knee injury in high
school, the ACL reconstruction, and that appellant was diagnosed in 2013 with arthritis. She
advised that, based on the history of the work-related fall, it was difficult for her to make a clear
determination of whether or not this injury was in anyway related to the development of arthritis
without more information.
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between the alleged recurrence of her medical condition and the
accepted employment injury. Appellant maintains the burden to submit sufficient medical
evidence to document the need for further medical treatment. If she is alleging that her current
condition is consequential to her accepted December 27, 2010 injury, she must submit medical
evidence which establishes that her condition is a natural consequence of the accepted injury.9
Appellant did not submit such evidence as required and failed to establish a need for continuing
medical treatment.10
Appellant may submit new evidence or argument as part of 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.

7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

See C.T., Docket No. 15-0634 (issued September 9, 2015).

9

Supra note 4.

10

See P.Q., Docket No. 14-1905 (issued May 26, 2015); J.F., 58 ECAB 331 (2006).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of her medical condition causally related to her December 27, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 4, 2015 is affirmed.
Issued: May 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 15-0147
Issued: November 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 20, 2014 appellant filed a timely appeal from a September 30, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $12,435.25 for the period October 3, 2012 through April 16, 2013; (2) whether she
was at fault in the creation of the overpayment, thereby precluding recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned her request for a prerecoupment
hearing.
On appeal, appellant asserts, inter alia, that she did not receive notice of the
prerecoupment hearing, that the communications from OWCP have been inconsistent and
1

5 U.S.C. § 8101 et seq.

confusing, that she followed all the guidelines, and that she should not be penalized for an
administrative error of which she was not aware.2
FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are incorporated herein.3
On October 3, 2012 OWCP terminated appellant’s medical and compensation benefits as
it concluded that she had no injury-related residuals or continuing disability as a result of the
accepted employment conditions. However, appellant continued to receive compensation checks
covering dates through April 6, 2013.
By decision dated April 10, 2013, OWCP determined that appellant received an
overpayment in the amount of $12,435.25 due to the fact that she continued to receive
compensation after her benefits were terminated.4 It also made a preliminary determination that
she was at fault in the creation of the overpayment because she knowingly accepted
compensation to which she was not entitled. OWCP sent appellant financial forms to complete
and forms to request a waiver and a recoupment hearing and advised her that they needed to be
returned within 30 days.
Appellant completed the Overpayment Action Request on April 16, 2013, and requested
a prerecoupment hearing. She checked the line indicating that she believed that the overpayment
occurred through no fault of her own and requested a waiver. In an accompanying letter,
appellant argued that she was being blamed for an error made by OWCP. She admitted that she
received a letter stating that her benefits would be terminated on October 3, 2012. Appellant
contended that when she received her first compensation payment after the termination, she was
initially confused, but thought that OWCP was paying her until the compensation year ended
around her birthday. She also noted that she received a form to update her employment and
doctor’s information. Appellant argued that she did not understand OWCP’s confusing process
for compensation.
2

On October 20, 2014 appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b).
After exercising its discretion, pursuant to 20 C.F.R. § 501.5(a), the Board, by order dated July 29, 2015, denied
appellant’s request for oral argument, finding that it could adequately address her contentions based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 15-147 (issued July 29, 2015).
3

Docket No. 10-1449 (issued April 1, 2011). On October 8, 2006 appellant, then a 27-year-old clerk, filed a
traumatic injury claim alleging that on September 15, 2006 she suffered from stress resulting from the duties of her
federal employment. OWCP accepted her claim for post-traumatic stress disorder (anxiety) and major depression,
recurrent episode, and paid compensation and medical benefits.
4

OWCP determined that for the period October 3 through 20, 2012 appellant was overpaid $1,200.50 for 18
calendar days. For the periods October 21 through November 17, 2012, November 18 through December 15, 2012
and December 16, 2012 through January 12, 2013, appellant was paid $1,867.44 for each 28 calendar days, all of
which was an overpayment. For the periods January 13 through February 9, 2013, and February 10 through
March 9, 2013, she was paid $1,862.50 for each 28-day period, all of which was found to be an overpayment.
Appellant also received an additional $10.93 deposit for March 1 through 9, 2013 and $1,896.50 for March 10 to
April 6, 2013. The total amount of these overpayments is $12,435.25.

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By letter dated July 2, 2014, OWCP notified appellant that the telephonic hearing was to
take place on August 12, 2014 at 3:15 p.m., and provided her the toll free number and pass code.
The letter was mailed to appellant’s address of record. Appellant did not call the listed number
on the assigned date.
By decision dated September 30, 2014, the hearing representative found that appellant
had abandoned her prerecoupment hearing that she had received an overpayment in the amount
of $12,435.25, and that as she was with fault in the creation of the overpayment, overpayment
could not be waived. He further determined that she could repay the overpayment in monthly
installments of $500.00 per month until the debt was liquidated.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.5 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”6
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.7 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.8 OWCP’s regulations state in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work-related injury.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received a $12,435.25
overpayment of compensation. In an October 3, 2012 decision, OWCP terminated appellant’s
medical and compensation benefits as it concluded that appellant had no injury-related residuals
or continuing disability as a result of the accepted employment injury. The record reveals,
however, that appellant continued to receive total disability compensation from OWCP through
5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8102.

8

Id. at § 8116(a).

9

20 C.F.R. § 10.500.

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April 16, 2013. Appellant was not entitled to receive disability compensation between
October 3, 2012 and April 16, 2013 and the entire amount of compensation she received during
that period, $12,435.25, represented an overpayment of compensation. For these reasons,
OWCP properly determined that she received a $12,435.25 overpayment.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.11
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who -(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(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”12
The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from OWCP are proper.13 Whether or not
OWCP determines that an individual was at fault with respect to the creation of the overpayment
depends on the circumstances surrounding the overpayment.14
ANALYSIS -- ISSUE 2
OWCP applied the third standard to determine that appellant was at fault in the creation
of the overpayment because she accepted payments that she knew or should have known to be
incorrect. To establish that she was at fault in creating the overpayment of compensation, it must

10

See supra note 4.

11

W.M., Docket No. 11-2000 (issued May 21, 2012).

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.433(a).

14

Id.

4

establish that, at the time she accepted the compensation payments in question, she knew or
should have known that the payments were incorrect.15
As noted, OWCP erroneously issued wage-loss compensation for total disability for the
period October 3, 2012 through April 16, 2013 following the termination of such benefits.
Appellant was not entitled to disability compensation for this period as wage-loss compensation
benefits had been terminated effective October 3, 2012.
With respect to whether an individual is with fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that individual was without fault with
respect to the creation of the overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of the circumstances
and the individual’s capacity to realize that he or she is being overpaid. The Board has also
noted that in applying the tests to determine fault, OWCP should apply a reasonable person
test.16
The Board finds that appellant was at fault in the creation of the overpayment. The
Board finds that she knew or should have known that at the time her monetary compensation was
formally terminated effective October 3, 2012, she was not entitled to additional wage-loss
compensation. Appellant had the obligation to return all payments she received after that date as
a reasonable person would have known or should have known that any such payments were
incorrect.17 She asserts that the communications from OWCP have been inconsistent and
confusing. Appellant alleged that she did not believe that it was her error, and that if there was
an oversight it was due to the misguidance she received from OWCP. Her explanation that she
was confused and thought that OWCP was to pay her through her birthdate is without merit, as
the October 3, 2012 decision clearly indicated that her benefits were terminated on that date.
The Board therefore finds that OWCP has established that appellant accepted payments which
she should have known to be incorrect.
LEGAL PRECEDENT -- ISSUE 3
Section 10.622(f) of OWCP’s regulations and Chapter 2.1601(g) of OWCP’s procedures
provide that failure of appellant to appear at the scheduled hearing, failure to request a
postponement, and failure to request a new hearing in writing within 10 days after the date of the
scheduled hearing shall constitute abandonment of the request for a hearing.18 Under these
circumstances, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned his or her request for a hearing and return the case to the district office.
In cases involving prerecoupment hearings, the Branch of Hearings and Review will also issue a

15

See Claude T. Green, 42 ECAB 174, 178 (1990).

16

C.D., Docket No. 12-1913 (issued August 2, 2013).

17

Sinclair L. Taylor, 52 ECAB 442 (2001).

18

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.6(g) (October 2011).

5

final decision on the overpayment, based on the available evidence, before returning the case to
the district office.19
ANALYSIS -- ISSUE 3
In a letter dated July 2, 2014, OWCP advised appellant of a scheduled telephonic
prerecoupment hearing with the hearing representative at a specific time on August 12, 2014.
The evidence establishes that it mailed appropriate notice to appellant at her last known address.
The record also reveals that appellant failed to request postponement, failed to appear for the
scheduled hearing, and failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing. As this meets the condition for abandonment of a hearing as
specified by OWCP’s regulations and procedure manual, the Board finds that OWCP properly
found that appellant abandoned her request for a prerecoupment hearing before an OWCP
hearing representative and properly issued a final decision on the overpayment of
compensation.20 On appeal, appellant asserts that she did not receive notification of the
scheduled hearing. However, absent evidence to the contrary, it is presumed that she received
the properly addressed notice of hearing.21 Accordingly, the Board finds that OWCP properly
found that appellant abandoned her request for a prerecoupment hearing.
The Board’s jurisdiction with respect to the recovery of an overpayment is limited to
those cases where OWCP seeks recovery from continuing compensation benefits.22 As appellant
was not in receipt of compensation at the time of OWCP’s overpayment determination, the
Board does not have jurisdiction over the method of recovery of the overpayment in this case.23
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $12,435.25 for the period October 3, 2012 through April 16, 2013 and that she was at fault in
the creation of the overpayment, thereby precluding waiver of the overpayment. The Board
further finds that OWCP properly found that appellant abandoned her request for a
prerecoupment hearing.

19

Id.

20

See supra note 18; see also M.G., Docket No. 14-1917 (issued January 22, 2015).

21

Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption arises when it
appears from the record that the notice was properly addressed and duly mailed. Michele Lagana, 52 ECAB 187,
189 (2000).
22

D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB 217 (2002).

23

See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2014 is affirmed.
Issued: November 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
F.B., Appellant
and
DEPARTMENT OF COMMERCE, 2010
DECENNIAL CENSUS,
Bloomfield, NJ Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0802
Issued: January 14, 2016

Case Submitted on the Record

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

JURISDICTION
On February 20, 20151 appellant through counsel, filed a timely appeal from an
August 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). The 180th day from August 25, 2014 is February 21, 2015 as this fell on a Saturday, the appeal would
have been timely if received the next business day, which was February 23, 2015. Since using February 26, 2015,
the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is February 20, 2015, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on March 5, 2012 causally related to her June 5, 2010 employment injury.
FACTUAL HISTORY
On June 10, 2010 appellant, then a 46-year-old census enumerator crew leader assistant,
filed a traumatic injury claim (Form CA-1) alleging that on June 5, 2010, she injured her back,
spine, and foot while lifting and carrying boxes in the performance of duty. She stopped work
on June 7, 2010. The employing establishment explained that, when appellant returned to work,
the job held on the date of injury was no longer available and she was provided a clerk position.
It advised that her medical restrictions included no lifting over 10 pounds and were “congenial”
with the date-of-injury position. The employing establishment noted that appellant returned to
work on July 17, 2010 until the clerk position ended due to lack of work on August 29, 2010.3
On July 7, 2010 OWCP accepted the claim for lumbar sprain. A July 12, 2010 magnetic
resonance imaging (MRI) scan showed moderate-sized L5-S1 herniation and slight disc bulging
at L3-4 and L4-5. The record indicates that appellant received medical treatment and physical
therapy until September 2010.
An April 3, 2012 MRI scan read by Dr. Ross Mondshine, a Board-certified diagnostic
radiologist revealed an interval increase in the size of the L5-S1 disc herniation, broad-based disc
bulge at L4-5 with moderate facet joint arthropathy and a superimposed annual fissure.
In an August 13, 2012 report, Dr. Kevin S. Finnesey, a Board-certified orthopedic
surgeon, noted that appellant had complaints of high level pain in the low back with radiation
down the left leg and pain which worsened with activity. He noted that she walked with a cane
with the right hand. Dr. Finnesey examined appellant and determined: she had a positive leg
raise on the left at 45 degrees; a left Achilles reflex which was absent; diminished sensation
about the left lateral foot; tenderness in the left lower lumbar paraspinal muscles; flexion to 60
degrees, which was painful; and peripheral pulses palpable in the legs. He diagnosed herniated
lumbar discs and recommended a lumbar microdiscectomy. Dr. Finnesey noted that she had the
pain for over a year and needed surgery. He advised that she was totally disabled. Dr. Finnesey
also provided an August 18, 2012 report in which he indicated that appellant injured her back
carrying a heavy box on June 5, 2010. He diagnosed a herniated lumbar disc L5-S1 on the left.
Dr. Finnesey noted subjective findings, requested authorization for surgery, and found appellant
unable to work.
On September 13, 2012 appellant filed a claim for a recurrence of disability Form CA-2a
commencing March 5, 2012. She noted experiencing chronic pain in her back and leg since
June 5, 2010. Appellant advised that she had some physical therapy and took medication, but
she could no longer tolerate the chronic pain because “it became excruciating and unbearable.”
The employing establishment indicated that when appellant was released to work after her injury,
3

Appellant’s date-of-injury job was a temporary position that was scheduled to end no later than
December 31, 2010. She received continuation of pay from June 6 to July 17, 2010.

2

the date-of-injury job was no longer available so she worked as a clerk from July 17 through
August 29, 2010, at which point the clerk job ended due to lack of work. It contended that her
job was consistent with her work restrictions. The employing establishment also related its
understanding that appellant worked for the YMCA before, during, and after the injury. It noted
that, prior to the alleged recurrence, she had not sought treatment for the accepted injury for 18
months (September 2010 through March 2012).4
On September 14, 2012 Lorie Plegue, an employing establishment workers’
compensation specialist, controverted the claim. She noted that the employing establishment had
learned that appellant had an auto accident, a disabled daughter, and a job with the YMCA that
could have caused her current medical condition.
Dr. Finnesey, in an October 1, 2012 report, advised that appellant was doing well and had
returned to work. Appellant had some pain, but not severe, and no radiating pain. Dr. Finnesey
provided findings which included no focal deficits of the extremities on neurologic examination.
He diagnosed cervical and lumbar soft tissue sprain, and cervical disc protrusion, improving.
Dr. Finnesey advised that appellant was not a surgical candidate, she was at maximum medical
improvement, and he would see her on an as needed basis.
By letter dated October 9, 2012, OWCP advised appellant of the evidence needed to
establish her recurrence of disability claim. It requested that she provide a detailed description to
explain why she stopped work on March 5, 2012. OWCP requested that appellant specify the
activity she was engaged in at the moment she suffered the recurrence. It noted that she had not
worked for the employing establishment since August 29, 2010 and requested an explanation as
to why she did not seek medical treatment for the accepted injury for 18 months from
September 2010 to March 2012. OWCP further requested that appellant address whether she
sustained any injuries while working with the YMCA.
Appellant subsequently submitted a May 14, 2012 report from Dr. Finnesey.
Dr. Finnesey indicated that her history included being in a work-related accident on June 5, 2010
when she was lifting boxes of documents and developed low back pain with eventual radiation
down into the right leg. Appellant currently had quite severe pain in the left leg for the last few
weeks. The pain was worse with any activity and inhibited her activities of daily living.
Dr. Finnesey examined appellant and diagnosed herniated lumbar disc. He found her totally
disabled and requested authorization for lumbar laminectomy and discectomy. OWCP also
received copies of previously submitted reports.
In a November 1, 2012 letter, appellant stated that she had learned to live with chronic
pain since June 5, 2010, but she reached the point where it was no longer tolerable. She
indicated that she wanted surgery or spinal injections. Appellant denied that she sustained any
injuries while working for the YMCA in a light-duty position.
In a November 6, 2012 report, Dr. Finnesey indicated that appellant continued to have
severe low back pain radiating down the left buttock and posterior thigh with associated
4

Appellant notes that she was a director of the YMCA aftercare program and supervised counselors and children
with afterschool activities. She held this position from “October 2008 or 2009” to March 2012.

3

numbness of the leg, foot, and back, as well as leg tingling and weakness. Appellant’s leg pain
on the left was greater than the back pain. She also had an episode of right leg pain a few weeks
earlier. Dr. Finnesey diagnosed herniated lumbar disc at L5-S1 on the left. He questioned the
extensive delay in appellant’s treatment and advised that appellant had incapacitating pain and
needed surgery. In a separate November 6, 2012 report, he declared that appellant had subjective
findings of pain greater than back pain and tenderness at L5-S1, a straight leg raise of 45
degrees, and full reflexes and he requested authorization for a lumbar discectomy at L5-S1 and
checked a box marked “yes” in response to whether the injury or illness was the result of a workrelated incident or condition of employment. Dr. Finnesey checked a box marked “no” in
response to whether appellant reported a preexisting injury and placed her off work.
In a December 14, 2012 decision, OWCP denied appellant’s claim for a recurrence. It
found that the factual basis of her claim remained unclear as she did not provide a clear
statement to explain why she stopped work on March 5, 2012 and why she did not see a doctor
from September 2010 to March 2012. OWCP also found that the medical evidence of record
was unclear.
On January 2, 2013 counsel for appellant requested a telephonic hearing, which was held
on April 16, 2013. In response to what happened between June 2010 and March 2012, appellant
reiterated that she was in constant pain and that, as of March 5, 2012, she was unable to tolerate
the pain. She stated that she had previously tolerated the pain in the hopes that it would get
better.
In a February 4, 2013 report, Dr. Finnesey noted reevaluating appellant. Appellant
continued to complain of high level pain in her low back with radiation down both legs, left
greater than the right. Dr. Finnesey explained that she had significant difficulty with activities of
daily living including dressing, bathing, shopping, and caring for her disadvantaged daughter.
He provided findings which included: left lower lumbar paraspinal tenderness; lumbar flexion of
45 degrees with pain; a positive straight leg raise on the left at 45 degrees, and negative on the
right to 60 degrees. Neurologic examination revealed a diminished left Achilles reflex; left calf
strength of 4/5, and sensation was diminished over the left lateral foot. Regarding appellant’s
June 5, 2010 work injury, Dr. Finnesey noted that she was carrying two to three boxes filled with
papers, which weighed 20 pounds each. He indicated that she had to lift the boxes from her
vehicle and bring them into various buildings. Appellant developed severe low back pain at the
time with radiation down both legs. An MRI scan showed a disc protrusion at L5-S1 affecting
both S1 nerve roots. Dr. Finnesey indicated that appellant “specifically denied problems with
her back prior to this work-related injury.” He opined:
“[It was his] opinion that the work injury of June 5, 2010, was directly responsible
for the patient’s medical treatment. I believe it is clear that there is a causal
relationship between the claimant’s conditions to the injury sustained while in the
course of employment. My reasoning is that the patient, as I mentioned, had no
difficulty with her back prior to this injury. Appellant clinical examination along
with the MRI scan of the lumbar spine supports this opinion. Based upon my
examination and the objective medical evidence I have outlined, the patient’s
condition again is causally related to the job duties described. In my opinion as
provided, it was in a reasonable degree of medical certainty.”

4

Dr. Finnesey repeated his request for surgery and continued to submit reports.
In a May 2, 2013 letter, counsel for appellant submitted additional medical evidence.
This included an April 23, 2013 report from Dr. Finnesey. Appellant related that her pain was
persisting and worsening, with her activities of daily living becoming more difficult.
Dr. Finnesey advised that, since the June 5, 2010 lifting injury, there were no other specific
injuries affecting the problem. He related her symptoms and diagnosed herniated lumbar disc at
L5-S1 on the left. Dr. Finnesey recommended lumbar discectomy at the L5-S1 level. He
advised that appellant remained totally disabled.
By decision dated July 3, 2013, an OWCP hearing representative affirmed the
December 14, 2012 decision. He found that, while appellant had a herniated disc at L5-S1 on the
left, there was insufficient evidence to show this was causally related to the accepted work
trauma, or that the work injury contributed to appellant’s claimed disability.
A July 26, 2013 electromyography (EMG) study read by Dr. Danielle Groves, Boardcertified in physical medicine and rehabilitation, revealed evidence of bilateral L5 and right S1
radiculopathies.
On June 30, 2014 counsel for appellant requested reconsideration and submitted
additional reports from Dr. Finnesey, who continued to treat appellant.5
The reports included a March 1, 2014 operative report, in which Dr. Finnesey performed
a lumbar laminotomy, foraminotomy, partial facetectomy, and discectomy at L5-S1 on the left.
On June 26, 2014 Dr. Finnesey noted initially evaluating appellant on May 14, 2012 for a June 5,
2010 work injury. He advised that she developed acute low back pain and was treated with
epidural blocks as well as physical therapy and medication. Dr. Finnesey noted that a July 12,
2010 MRI scan showed a “moderately large disc herniation” at L5-S1, which was contacting the
L5 and S1 nerve roots. A follow-up MRI scan on April 3, 2012 revealed an “interval increase in
the size of L5-S1 during disc herniation.” Dr. Finnesey further indicated that an updated study in
2014 also showed a large disc herniation at L5-S1 which severely impinged on the left lateral
recess. He advised that conservative treatment failed and that appellant had a lumbar discectomy
due to the large size of the disc and the incapacitating pain. Regarding causation, Dr. Finnesey
opined that appellant’s current clinical condition was “directly attributable and causally related to
the job activities….” He also noted that appellant had a disabled daughter at home and bathing,
lifting, or carrying her was painful as were other activities of daily living. Dr. Finnesey advised
that appellant denied any significant episodes of low back pain in the past which needed
treatment and that she was fully functional before the June 5, 2010 injury.
In a July 22, 2014 report, Dr. Finnesey examined appellant and noted that appellant was
gradually improving. He indicated that she had some low back pain, but her radicular pain had
improved. Dr. Finnesey noted findings which included full strength and sensation in the lower
extremities. He diagnosed herniated lumbar disc and opined that the disc “herniation and
subsequent surgery is causally related to the work involving lifting the documents….” In a
separate July 22, 2014 report, Dr. Finnesey checked a box marked “yes” in response to whether
5

The record contains numerous reports dating from April 23, 2013 to July 22, 2014.

5

the injury or illness was employment related. He also noted that appellant did not have a
preexisting injury to the same body area. Dr. Finnesey placed appellant off work.
By decision dated August 25, 2014, OWCP denied modification of its prior decision. It
noted that appellant did not submit a clear statement explaining why she stopped work on
March 15, 2012 and why she sought no medical treatment from September 2010 to March 2012.
LEGAL PRECEDENT
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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.6
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.7 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.8
In the absence of rationale, the medical evidence is of diminished probative value.9 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.10
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain on June 5, 2010. Appellant
returned to work on July 17, 2010 with a 10-pound lifting restriction. The employing
establishment accommodated this restriction by providing her a clerical job until August 29,
6

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
7

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

8

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

9

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

10

Ricky S. Storms, 52 ECAB 349 (2001).

6

2010 when the position ended due to lack of work.11 There is no evidence of record that
appellant was not provided appropriate work within her restrictions while work was available.
Thus, the question before the Board is whether she experienced a change in the nature and extent
of the June 5, 2010 employment injury that resulted in recurrence of disability on March 5, 2012.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was caused, precipitated, accelerated, or aggravated by the accepted injury.12 The Board notes
that there is no evidence of record that appellant sought medical treatment from September 2010,
when she had been cleared to work restricted duty, until March 2012. Although appellant asserts
that she remained in significant pain during this period, there is no medical evidence between
these dates documenting that she continued to have significant residuals as she alleges. She
indicated that she did not seek treatment as she thought her condition would improve without
medical treatment. The medical evidence from Dr. Finnesey, who did not begin treating
appellant until May 14, 2012, does not sufficiently explain with sound medical reasoning how
the June 5, 2010 work injury disabled appellant for work on and after March 5, 2012, the date of
the alleged recurrence. In the absence of rationalized medical opinion evidence, appellant did
not meet her burden of proof.
As noted, Dr. Finnesey provided several reports opining that appellant’s current
condition, and need for the March 1, 2014 surgery, is causally related to the June 5, 2010
work injury. They included his May 14, August 13, October 1, November 6, 2012, February 4,
April 23, 2013, June 26, and July 22, 2014 reports. Dr. Finnesey noted the history of injury of
the June 5, 2010 work injury, diagnosed a herniated lumbar disc, and found appellant totally
disabled. He noted that a 2010 MRI scan showed a herniated disc. Dr. Finnesey contended
that her herniated disc and associated conditions were caused or aggravated by her work injury
and noted that appellant denied any other similar conditions. However, the only condition
accepted by OWCP is a lumbar sprain.13 The Board has also held that an opinion that a
condition is causally related to an employment injury because the employee was asymptomatic
before an injury but symptomatic after it is insufficient, without supporting rationale, to establish
causal relationship.14 These numerous reports do not provide sufficient support for a recurrence
of disability on March 5, 2012 caused by a spontaneous change in the accepted lumbar sprain
without an intervening injury or new exposure to the work environment that caused the illness.
The need for detailed medical rationale is particularly important due to the passage of time
between the original injury and the resumption of treatment.15 Furthermore, appellant also
11

As noted, appellant’s date-of-injury job was a temporary position that was scheduled to end no later than
December 31, 2010. See supra note 3. OWCP procedures explain that a recurrence of disability does not include a
work stoppage caused by a termination of a temporary appointment, if the claimant was a temporary employee at the
time of the injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(1)
(June 2013).
12

Ricky S. Storms, 52 ECAB 349 (2001).

13

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted by
OWCP, she bears the burden of proof to establish that the condition is causally related to the employment injury).
14

John F. Glynn, 53 ECAB 562 (2002).

15

See supra note 12.

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worked another job during the period in question in which she helped care for children as well as
having to care for a disabled child at home. Dr. Finnesey did not sufficiently address how these
activities would have affected appellant’s condition.
Dr. Finnesey also provided form reports dated November 6, 2012 and July 22, 2014, in
which he checked a box marked “yes” in response to whether the injury or illness was the result
of a work-related incident or condition of employment. The Board has held that the checking of a
box marked “yes” in a form report, without additional explanation or rationale, is insufficient to
establish causal relationship.16
Other medical evidence of record is insufficient to establish a recurrence as these reports
do not contain a physician’s opinion supporting that disability beginning March 5, 2012 was due
to a spontaneous change in her accepted condition.
On appeal, counsel for appellant argues that appellant returned to a light-duty capacity
and never returned to full duty. He indicated that the entire Census office was let go.17 Counsel
further argues that appellant addressed why she stopped work and did not seek medical attention
from September 2010 to March 2012. He contends that the claim should be accepted. In the
alternative, counsel notes that there was no contradictory medical evidence and the claim should
be remanded for further development. As found above, the medical evidence of record is
insufficient to establish appellant’s claim or to require further development.
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 established that she sustained a recurrence of
disability on March 5, 2012 causally related to her June 5, 2010 employment injury.

16

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

17

See supra note 11 (a recurrence of disability does not include a work stoppage caused by a termination of a
temporary appointment).

8

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2016
Washington, DC

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

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

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

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

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Appearances:
Sylvia R. Johnson, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1243
Issued: October 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 28, 2008 appellant filed a timely appeal from a March 28, 2007 decision of the
Office of Workers’ Compensation Programs denying her occupational disease claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a bilateral knee
condition in the performance of duty.
FACTUAL HISTORY
On October 10, 2005 appellant, then a 59-year-old mail carrier, filed occupational disease
claims (Form CA-2) alleging that she sustained severe osteoarthritis of both knees from jumping
out of her delivery vehicle hundreds of times a day from May 1983 through October 16, 2002.
She noted that she first became aware of her condition in approximately 1996 and first related it

to work factors in March 2003.1 Appellant underwent left knee arthroplasty October 18, 2002
and returned to light duty in March 2003.
She underwent right knee arthroplasty
October 29, 2004. Appellant remained on modified duty until she retired on July 26, 2006.
Postmaster Cathy Ott contended that, in October 2002, appellant stated that her knee
condition was not work related and so requested Family and Medical Leave Act (FMLA) instead
of filing a claim. Appellant advised the employing establishment on March 23, 2003 that her
knee osteoarthritis and arthroplasties were a “typical case of injury caused by repetitive motion
during [her] postal duties as a letter carrier.”
In a November 7, 2005 letter, Charles Boggs, an employing establishment supervisor,
asserted that several years before, appellant stated that she jogged after work.
In a November 22, 2005 letter, the Office advised appellant of the additional evidence
needed to establish her claim, including a rationalized statement from her attending physician
explaining how and why the identified work factor of jumping in and out of a delivery jeep
would cause the claimed knee condition. The Office also questioned why appellant delayed in
filing her claim. Appellant responded by December 7, 2005 letter, explaining that Dr. Craig
Gyory, an attending Board-certified orthopedic surgeon, did not alert her of the severity of her
condition until late 2001. It took another two years before she realized the condition was work
related.
By decision dated January 26, 2006, the Office denied appellant’s claim on the grounds
that causal relationship was not established. It found that appellant established as factual that she
frequently jumped in and out of her delivery vehicle. However, appellant submitted insufficient
rationalized medical evidence explaining how and why this activity would cause bilateral knee
osteoarthritis.
Appellant requested an oral hearing, held August 9, 2006. During the hearing, she and
her husband asserted that there was no family history of osteoarthritis. Appellant submitted
additional evidence.
In a March 7, 2006 report, Dr. Gyory noted treating appellant beginning in October 2001
for severe osteoarthritis of both knees. He performed a left knee replacement in October 2002
and a right knee replacement in October 2004. Dr. Gyory opined that “making multiple exits
from her mail truck, stepping down on her legs” may have aggravated or accelerated idiopathic
osteoarthritis. However appellant’s “basic anatomy would predispose her for developing this
despite her claims that no person in her family has had such a problem in the past.” Dr. Gyory
opined that appellant’s “high-impact activity could aggravate or perhaps accelerate the
deterioration of her knees,” but that he could not “state with a 51 percent degree of certainty that
her job actually caused this condition to occur.” He noted work limitations.
1

The claim now before the Board was assigned File No. 13-2140451. In a November 22, 2005 letter, the Office
advised appellant that her claim under File No.13-2140350 would be deleted as that case was “an extension of
created case 13-2140351.” It accepted a right shoulder condition under File No. 13-2125095. The record indicates
that appellant filed a claim for a left shoulder condition under File No. 13-2140447. The shoulder condition claims
are not before the Board on the present appeal.

2

In a March 15 and July 25, 2006 letters, appellant reiterated her contention that frequent
jumping from her delivery vehicle caused her bilateral knee condition. In a July 26, 2006 letter,
she alleged that, during her farewell party at work that morning, supervisor Marie Freese told the
assembled workers that appellant had been on light duty due to unspecified work-related injuries.
Appellant contended that this was an admission of liability regarding the knee condition.
By decision dated and finalized September 15, 2006, an Office hearing representative
affirmed the January 26, 2006 decision, finding that the medical evidence was insufficient to
establish causal relationship. The hearing representative found that Dr. Gyory’s March 7, 2006
report was too speculative to meet appellant’s burden of proof and did not require additional
development by the Office. The hearing representative noted that appellant was a former jogger
and also told her postmaster that her knee conditions were not work related.
In a December 10, 2006 letter, appellant requested reconsideration. She contended that
Mr. Boggs and Ms. Ott lied as she did not make the statements described. Appellant asserted
that Dr. Gyory clearly opined that her job duties accelerated her osteoarthritis. She submitted
additional evidence.2
In a November 15, 2006 report, Dr. Joel W. Renbaum, an attending Board-certified
orthopedic surgeon, related appellant’s account of bilateral knee pain beginning in 1993.
Appellant had delivered mail from 1983 to 1997 on a route that required frequent vehicle
dismounts. Dr. Renbaum diagnosed status post bilateral knee replacements due to degenerative
arthritis. He opined that “the work activity that existed from 1983 to 1997 did contribute to the
rapid progression of her arthritis and ultimately resulted in her requiring total knee replacement.”
Dr. Renbaum noted that appellant “may genetically have developed osteoarthritis unrelated to
the job” but that the “problem progressed more rapidly because of her work activity, especially
between 1983 and 1997.” Also, “use of the brake while driving from 1997 to 2002 accelerated
the need for total knee replacement.” He opined that “the work activity contributed at least one
percent to [appellant’s] need for knee replacements.”
In a November 19, 2006 letter, Dr. Douglas E. Severance, an attending Board-certified
family practitioner, noted examining appellant on November 8, 2006 for bilateral knee pain. He
opined that appellant’s “employment as a postal carrier contributed to her degenerative joint
disease of both knees.” While appellant “may [have been] predisposed for developing
osteoarthritis … her job as a postal carrier ha[d] certainly accelerated the damage.”
By decision dated March 28, 2007, the Office denied modification on the grounds of
insufficient evidence. It found that appellant submitted insufficient rationalized medical to
establish the causal relationship asserted.

2

Appellant also submitted reports from Dr. Chhatre Devenda regarding her shoulder conditions. This report is
not relevant to the knee condition claim now before the Board.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally 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. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.6
ANALYSIS
Appellant claimed that she sustained bilateral knee osteoarthritis in the performance of
duty, resulting in bilateral knee replacements. Dr. Gyory, an attending Board-certified
orthopedic surgeon, diagnosed advanced osteoarthritis of both knees and performed bilateral
knee arthroplasties. Appellant has thus met the first element of her burden of proof by
establishing the presence of the claimed condition. The Office accepted that appellant’s duties as
a mail clerk required frequent vehicle dismounts. Appellant has thus met the second element of
her burden of proof, as she established the asserted work factors as factual. To meet the third
element, appellant must submit sufficient medical evidence to establish the claimed causal
relationship between the diagnosed bilateral knee osteoarthritis and the accepted work factors.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Solomon Polen, 51 ECAB 341 (2000).

4

Dr. Severance, an attending Board-certified family practitioner, opined that appellant’s
federal employment accelerated her bilateral knee osteoarthritis. However, he did not explain
how the accepted work factors would cause or aggravate osteoarthritis of the knees. Thus,
Dr. Severance’s opinion is insufficiently rationalized to establish causal relationship.7
Dr. Gyory explained that the high impact activity of jumping from the delivery vehicle
may have aggravated or accelerated appellant’s idiopathic osteoarthritis, but he could not state
this with certainty. The speculative nature of Dr. Gyory’s opinion diminishes its probative
value.8
Appellant also submitted a November 15, 2006 report from Dr. Renbaum, an attending
Board-certified orthopedic surgeon. Who opined that frequent vehicle dismounts and activating
the vehicle brake from 1983 to 2002 accelerated the progression of idiopathic osteoarthritis.
Dr. Renbaum stated that work factors contributed to appellant’s need for knee replacements.
However, He did not provide sufficient rationale to support his opinion on causal relationship.
Dr. Renbaum opinion is thus insufficient to meet appellant’s burden of proof.9
The Board notes that appellant was advised by November 22, 2005 letter of the necessity
of submitting medical evidence explaining how and why jumping in and out of a delivery vehicle
would cause or contribute to the claimed knee osteoarthritis. Appellant did not submit such
evidence. Therefore, she failed to meet her burden of proof in establishing causal relationship.
CONCLUSION
The Board finds that appellant has not established that she sustained a bilateral knee
condition in the performance of duty.

7

Deborah L. Beatty, 54 ECAB 340 (2003) (medical reports not containing rationale on causal relationship are
entitled to little probative value).
8

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

9

Deborah L. Beatty, supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2007 is affirmed.
Issued: October 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1094
Issued: February 25, 2020

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 April 19, 2019 appellant, through counsel, filed a timely appeal from March 26 and 27,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the March 27, 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.

ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation,
effective June 13, 2018, finding that she forfeited her entitlement to compensation pursuant to
5 U.S.C. § 8148(a); (2) whether OWCP properly found that appellant received an overpayment of
compensation in the amount of $594.00; and (3) whether OWCP properly found appellant at fault
in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On May 26, 2011 appellant, then a 40-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 16, 2011 she strained her lower back while bending down to
pick up express mail in the performance of duty. OWCP accepted the claim for lumbar
intervertebral disc displacement without myelopathy and lumbar sprain. Appellant stopped work
on May 18, 2011 and returned to modified work for four hours per day on March 11, 2013.
On October 11, 2016 a grand jury for the U.S. District Court for the Southern District of
Texas, Houston Division, indicted appellant on two counts. Count one alleged that appellant, with
intent to defraud, had made false, fictitious, or fraudulent representations for receipt of medicallyrelated travel benefits, during the period November 15, 2011 through May 4, 2016, by filing false
Form 957 reports with the U.S. Department of Labor in violation of 18 U.S.C. § 1920. Count two
alleged that appellant willfully and knowingly engaged in theft of public funds from the U.S.
Department of Labor in violation of 18 U.S.C. § 641 during the period November 15, 2011 through
May 4, 2016. This indictment also related that if appellant was convicted of the offenses charged,
the United States intended to seek forfeiture or all property which was derived from proceeds
traceable to such offenses.
In a report dated May 15, 2017, the employing establishment’s Office of the Inspector
General detailed its investigation into appellant’s filing of more than 500 fraudulent claims for
reimbursement for co-payments and medical travel for the period May 17, 2011 to May 4, 2016.
On June 13, 2018 the jury found appellant guilty on both counts of making a false statement
regarding FECA benefits and theft of public funds. On that same date, the United States District
Court Judge recorded that appellant had been found guilty of Counts One and Two of the
indictment and ordered a presentence report.
By decision dated July 19, 2018, OWCP found that appellant had forfeited her entitlement
to compensation beginning June 13, 2018 as she was found guilty of making false statements
regarding FECA benefits in violation of 18 U.S.C. § 1920 and theft of public funds in violation of
18 U.S.C. § 641. It determined that, as a result of her conviction, and in accordance with 5 U.S.C.
§ 8148(a) and 20 C.F.R. § 10.17, she was not entitled to receive further benefits under FECA under
this or any other file number.
On July 19, 2018 OWCP notified appellant of its preliminary determination that she had
received an overpayment of wage-loss compensation in the amount of $594.00 for the period
June 13 through 23, 2018. It further advised her of its preliminary determination that she was at
fault in the creation of the overpayment. OWCP requested that she complete the enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
2

documentation. Additionally, it notified appellant that, within 30 days of the date of the letter, she
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
In a form dated August 15, 2018, appellant requested a telephonic hearing before an OWCP
hearing representative. A telephonic hearing was held on January 14, 2019 during which appellant
was represented by counsel and the issues of termination of compensation and overpayment were
addressed. Appellant testified that she had appealed her conviction and that she was looking into
disability retirement.
By decision dated March 26, 2019, OWCP’s hearing representative affirmed the July 19,
2018 decision regarding the termination of appellant’s compensation benefits. He determined that
appellant’s entitlement to compensation was properly terminated effective June 13, 2018, under
5 U.S.C. section 8148(a), as a jury had found her guilty of making false statements regarding
FECA benefits and theft of public funds.
By decision dated March 27, 2019, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $594.00 as she was paid compensation
from June 13 to 23, 2018 after OWCP had terminated her compensation benefits effective
June 13, 2018 for fraudulent receipt of FECA benefits. It further found that she was at fault in the
creation of the overpayment of compensation and thus not entitled to waiver of recovery of the
overpayment.
LEGAL PRECEDENT -- ISSUE 1
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding
5 U.S.C. § 8148, which provides for the termination of benefits payable to beneficiaries who have
been convicted of defrauding the FECA program. Section 8148(a) specifically provides that an
individual convicted of a violation of 18 U.S.C. § 1920 or any other federal or state criminal statute
relating to fraud in the application for or receipt of a benefit under FECA, shall forfeit, as of the
date of such conviction, entitlement to any benefit to which such individual would otherwise be
entitled under FECA for an injury occurring on or before the date of such conviction. Such
forfeiture shall be in addition to any action the Secretary may take under section 81064 (forfeiture)
or section 81295 (recovery of overpayments) of FECA.6
OWCP’s procedures provide that in support of termination or suspension of compensation
the record must contain copies of the indictment or information and the plea agreement, if any, or
the document containing the guilty verdict. Further, this evidence must establish that the
individual was convicted and that the conviction is related to the claim for or receipt of
compensation benefits under FECA.7 The termination is effective on the date of the verdict or on

4

5 U.S.C. § 8106.

5

Id. at § 8129.

6

Id. at § 8148; see D.S., Docket No. 18-1173 (issued June 13, 2019); F.C., 59 ECAB 666 (2007).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17(c)(2) (February 2013).

3

the date the guilty plea is accepted and guilt adjudicated.8 Because of the criminal basis for the
termination, no pretermination notice is required before a final decision is issued.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s compensation, effective
June 13, 2018, as she forfeited her entitlement to compensation pursuant to 5 U.S.C. § 8148(a).
On October 11, 2016 a grand jury for the U.S. District Court for the Southern District of
Texas, Houston Division, indicted appellant for making false, fictitious, or fraudulent
representations of for receipt of medically-related travel benefits to which she was not entitled in
violation of 18 U.S.C. § 1920 and theft of public funds in violation of 18 U.S.C. § 641. On June 13,
2018 a U.S. District Court jury found her guilty on both counts.
The record contains a copy of the indictment and the jury verdict. The Board finds that the
evidence establishes that appellant was convicted of fraud for making false statements regarding
OWCP compensation benefits under 18 U.S.C. § 1920 and theft of public funds in violation of
18 U.S.C. § 641. OWCP procedures provide that termination is effective the date of the verdict.10
The Board thus finds that OWCP properly terminated appellant’s compensation benefits on
June 13, 2018.11
On appeal counsel asserts that the decision is contrary to fact and law. Contrary to
counsel’s assertion the evidence establishes that appellant forfeited her entitlement to
compensation based on her conviction under federal criminal statutes for making false statements
regarding receipt of benefits under FECA and theft of government funds.12
LEGAL PRECEDENT -- ISSUE 2
Section 8148 of FECA provides that any individual convicted of a violation of 18 U.S.C.
§ 1920 or any other federal or state criminal statute relating to fraud in the application for or receipt
of any benefit under FECA, shall forfeit, as of the date of such conviction, entitlement to any
benefit such individual would otherwise be entitled to under FECA for an injury occurring on or

8

Id. at Chapter 2.1400.17(d) (February 2013).

9

Id. at Chapter 2.1400.4(a)(6) (February 2013).

10

Supra note 8.

11

D.S., supra note 6.

12

See supra note 6.

4

before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary
may take under section 8106 (forfeiture) or section 8129 (recovery of overpayments) of FECA.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $594.00 for the period June 13 through 23, 2018.
The record reveals that OWCP paid appellant wage-loss compensation for the period
June 13 through 23, 2018 after her conviction on June 13, 2018 for false statements regard FECA
benefits under 18 U.S.C. § 1920 and theft of public funds in violation of 18 U.S.C. § 641 and
subsequent to forfeiture. OWCP determined that during this period she received an overpayment
in the amount of $594.00. The record contains documentation of OWCP’s calculations and there
is no contrary evidence of record.
OWCP explained the basis of the overpayment and appellant does not dispute that she
received a compensation payment in this amount for the June 13 to 23, 2018 following her fraud
conviction. Thus, the Board finds that she received an overpayment of compensation in the amount
of $594.00.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments to
which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.14 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.15
Section 10.433(a) of OWCP’s implementing regulations provides that an individual is with
fault in the creation of an overpayment who: (1) made an incorrect statement as to a material fact
which the individual knew or should have known to be incorrect; (2) failed to furnish information
which the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.16
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly found appellant at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

13

Supra note 6 at § 8148; R.M., Docket No. 17-0141 (issued March 28, 2018).

14

5 U.S.C. § 8129(b).

15

D.S., supra note 6; Robert W. O’Brien, 36 ECAB 541 (1985).

16

20 C.F.R. § 10.433(a); D.S., supra note 6; Kenneth E. Rush, 51 ECAB 116, 118 (1999).

5

As noted, under section 8148(a), a claimant who is convicted of fraud in obtaining
compensation benefits under 18 U.S.C. § 1920 will permanently forfeit his or her entitlement to
further compensation benefits effective the date of the conviction. The date of conviction in this
case was June 13, 2018 and therefore no further benefits were due effective this date.17 Appellant
knew or should have known her continued receipt of FECA benefits after her June 13, 2018
conviction was incorrect because she filed false claims for FECA benefits.18 As appellant accepted
compensation benefits from OWCP, which covered the period June 13 to 23, 2018, the Board finds
that she was at fault in the creation of the $594.00 overpayment and is not entitled to waiver of
recovery of the overpayment.19
The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery
from continuing compensation benefits under FECA. Appellant forfeited further compensation
commencing June 13, 2018. Thus, as she is no longer in receipt of wage-loss compensation
benefits, the Board lacks jurisdiction over OWCP’s recovery of the overpayment.20
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation, effective
June 13, 2018, because she forfeited her entitlement to compensation beginning that same date
pursuant to 5 U.S.C. § 8148(a). The Board further finds that OWCP properly found that appellant
received an overpayment of compensation in the amount of $594.00 for the period June 13 to 23,
2018 based on the forfeiture and properly found appellant at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

17

Supra note 8.

18

D.S., supra note 6; Bob R. Gilley, 51 ECAB 377 (2000).

19

D.S., supra note 6; K.R., Docket No. 14-0434 (issued October 7, 2014).

20
See D.R., 59 ECAB 148 (2007) (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 under FECA).

6

ORDER
IT IS HEREBY ORDERED THAT the March 26 and 27, 2019 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: February 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7