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

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

Docket No. 08-2095
Issued: June 4, 2009

Case Submitted on the Record

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

JURISDICTION
On July 23, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated July 3, 2008. 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 has met his burden of proof in establishing that he
developed an emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On May 26, 2007 appellant, then a 45-year-old rehabilitated clerk, filed an occupational
disease and alleged that he developed an emotional condition due to factors of his federal
employment. He stated that he first became aware of his condition in 1997 and sustained an
aggravation in 2007. Appellant noted that his prior claim for an emotional condition had been
denied.

In support of his claim, appellant submitted a statement dated May 24, 2007 describing
discipline. He noted that in 1985 his supervisor, Glynn C. Steele, began punitive actions
including rigidly pushing for production, which appellant felt resulted in two work-related
injuries. Ms. Steele attempted to remove appellant in 2000, which was reduced to a 30-day
suspension. Appellant stopped work in 2001 and returned in June 2005 in a rehabilitation
position.
Ms. Steele became appellant’s supervisor in December 2006 and issued an
unsatisfactory performance which was reduced to a discussion. On May 16, 2007 she instructed
appellant to follow proper procedure and to leave at 6:00 p.m. until his schedule changed. On
May 21, 2007 appellant received a warning for failure to follow instructions and unsatisfactory
performance from Ms. Steele.
In a letter dated June 20, 2007, the Office requested additional factual and medical
evidence in support of appellant’s claim. Appellant responded on July 5, 2007 and attributed his
emotional condition to Ms. Steele’s push for production, his limited-duty job on the midnight
shift in 1996, Ms. Steele’s issuance of a removal in 2000, which was reduced to a 30-day
suspension, the grievance filed for lost time for seniority and retirement when he returned to
work in 2005, Ms. Steele’s recent issuance of a unsatisfactory performance, which was reduced
to a discussion and the discipline for failure to follow instructions and unsatisfactory
performance as well as the recent change in his work hours on May 26, 2007. He listed several
statements from Ms. Steele criticizing his performance. Appellant noted on May 22, 2003
Ms. Steele discussed more duties for him regarding truck keys and on May 29, 2007 regarding
tilt carts.
Appellant submitted a July 11, 2007 form report from Dr. Patrick Crane, a clinical
psychologist, diagnosing anxiety. On July 22, 2007 he stated that the employing establishment
erred by issuing discipline, which was subsequently withdrawn or reduced through the grievance
process.
By decision dated November 26, 2007, the Office denied appellant’s claim finding that
he failed to substantiate a compensable factor of employment. Appellant requested an oral
hearing on December 4, 2007. He submitted a statement that he believed that the employing
establishment acted unreasonably in personnel matters and discriminated against him.
Appellant stated that he was submitting letters of warning from 1993, 1994 and 1999
Equal Employment Opportunity (EEO) settlement agreement as well as other grievances and
settlements. He submitted an August 23, 1993 letter of warning for working more than eight
hours; which was resolved through a September 16, 1993 settlement agreement expunging a
letter of warning for failure to follow instructions from his records. Appellant also submitted a
July 11, 1994 letter of warning due to unsatisfactory performance. On February 8, 1995 an
arbitrator found that the employing establishment and specifically, Ms. Steele, did not have just
cause to issue the July 11, 1994 letter of warning and stated, “The record establishes disparity of
treatment between the [g]rievant and other employees.” The arbitrator found that Ms. Steele had
instituted changes, which resulted in lowered productivity, that many employees disregarded
these changes after experiencing the drop in production, that Ms. Steele explicitly authorized one
employee to return to prior procedures, but that appellant “rigidly adhered” to the changes and
that his productivity did not improve. The arbitrator found that appellant was not treated equally
with the other employees in his unit.

2

Appellant submitted a January 20, 1995 notice of suspension due to unsatisfactory
conduct alleging that he walked away during a work discussion with Ms. Steele and citing a
July 19, 1994 letter of warning. He withdrew an EEO complaint regarding this notice of
suspension on the grounds that the notice was issued but never served and was therefore null and
void.
On August 13, 1996 appellant filed a grievance alleging that there was ample work
available within his restrictions, but that Ms. Steele had made no attempts to accommodate him.
In a letter dated February 19, 1997, the union requested that the employing establishment reduce
appellant’s limited-duty position to writing. On August 22, 1998 appellant filed a grievance
alleging that on August 10, 1998 he received an unofficial discussion and to request rubber mats
for standing. The parties reached a settlement on this matter on September 11, 1998 and agreed
that two safety mats would be placed at the copier machines. The agreement was reached
without prejudice.
Appellant received a letter of warning on June 24, 1999 for failure to follow instructions
regarding a leave request. On March 26, 2007 he received a letter of warning for unsatisfactory
performance. In a letter dated April 8, 2007, appellant stated that the station manager had
instructed him to sort metered mail piece by piece. He alleged that this is a new operation
requirement imposed only on him. Appellant noted that supervisor, Lori Stephenson, instructed
him to return to his normal method of sorting mail on April 7, 2007. He submitted a letter dated
May 13, 2007, alleging that he received a letter of warning, which was reduced to a discussion
due to unsatisfactory performance. Appellant stated that he was instructed to close the
employing establishment, but had no verifiable method to know if all the carriers had returned.
He noted that he received an inappropriate change of work schedule. Appellant provided a copy
of the letter of warning issued on May 21, 2007 due to unsatisfactory performance and failure to
follow instructions.
Appellant testified at the oral hearing on April 14, 2008. He submitted additional
documentation after the hearing consisting of medical records and factual documents. Appellant
resubmitted the August 23, 1993 letter of warning for failure to following instructions. He
submitted a January 18, 1999 settlement agreement revoking the July 11, 1994 letter of warning,
a letter dated April 15, 2008 from Mark Cunningham, Union President, stating that the
March 26, 2007 letter of warning was grieved and expunged from appellant’s file. Appellant
also resubmitted an EEO settlement agreement dated January 11, 1999, which stated the notice
of suspension dated January 20, 1995 was never served and was therefore null and void.
On June 6, 2007 Dr. Ismin Zen, a psychiatrist, diagnosed dysthymic disorder and anxiety.
In a note dated August 14, 2007, he diagnosed major depression disorder, recurrent.
By decision dated July 3, 2008, the hearing representative found that appellant had not
substantiated allegations of harassment or established error or abuse on the part of the employing
establishment in issuing disciplinary actions. As appellant had not substantiated a compensable
factor of employment, the hearing representative found that he failed to meet his burden of proof.

3

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2 Reactions to disciplinary matters such as
letters of warning and inquiries regarding conduct pertain to actions taken in an administrative
capacity and are not compensable until it is established that the employing establishment erred or
acted abusively in such capacity.3
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.
Mere perceptions of harassment or discrimination are not compensable under the Act.4 A
claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.5 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.6
ANALYSIS
Appellant had attributed his emotional condition to work assignments and disciplinary
actions by his supervisor, Ms. Steele, which he felt rose to the level of harassment and
discrimination. The Office denied his claim on the grounds that he did not establish any
compensable employment factors. The Board must, thus, initially review whether the alleged
incidents and conditions of employment are covered employment factors under the terms of the
Act.
Regarding appellant’s allegations that the employing establishment engaged in improper
disciplinary actions, improperly assigned work duties and improperly changed his work
schedule, the Board finds that these allegations relate to administrative or personnel matters,
1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

Sherry L. McFall, 51 ECAB 436, 440 (2000).

4

Reco Roncoglione, 52 ECAB 454, 456 (2001).

5

Penelope C. Owens, 54 ECAB 684, 686 (2003).

6

Beverly R. Jones, 55 ECAB 411, 417 (2004).

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unrelated to his regular or specially assigned duties and do not fall within the coverage of the
Act. Although the handling of disciplinary actions, the assignment of work duties and the
assignment of a work schedule are generally related to the employment, they are administrative
functions of the employer and not duties of the employee. However, the Board has noted that an
administrative or personnel matter will be considered an employment factor where the evidence
discloses error or abuse on the part of the employing establishment. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the
employing establishment acted reasonably.7 The Board finds that appellant did not submit
sufficient evidence to establish that the employing establishment committed error or abuse with
respect to these matters regarding the majority of his disciplinary actions. Appellant submitted
evidence of an August 23, 1993 letter of warning, which was resolved on September 16, 1993
and expunged from his personnel file. A January 20, 1995 notice of suspension was never
served and found null and void. The mere fact that the actions of the employing establishment
were later modified does not, in and of itself, establish error or abuse by management in its
administrative duties.8
There is, however, evidence with respect to appellant’s claim for error or abuse in regard
to the July 11, 1994 letter of warning. Although the hearing transcript and party briefs are not of
record, the February 8, 1995 decision of the arbitrator makes a finding of error in issuing the
July 11, 1994 letter of warning and found that appellant was subjected to disparate treatment.
The Office did not acknowledge the findings of the arbitrator or otherwise make a finding as to
this evidence. It is well established that, while the findings of other federal agencies are not
dispositive with regard to questions arising under the Act, such evidence may be given weight by
the Office and the Board.9
On the return of the case record, the Office should secure the hearing transcripts from the
February 2, 1995 arbitration and make an appropriate finding with respect to the alleged work
factors. After such further development as it deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that the record contains probative evidence with respect to a claim of
disparate treatment and the case will be remanded to the Office for further development.

7

Peter D. Butt, Jr., 56 ECAB 117, 123-24 (2004).

8

Id.

9

Pamela D. Casey, 57 ECAB 260, 264 (2005).

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ORDER
IT IS HEREBY ORDERED THAT July 3, 2008 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further development consistent
with this decision of the Board.
Issued: June 4, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 19-0311
Issued: July 2, 2019

Case Submitted on the Record

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

JURISDICTION
On November 27, 2018 appellant, through counsel, filed a timely appeal from an
October 9, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.3
On June 3, 2016 appellant, then a 54-year-old electronic technician, filed an occupational
disease claim (Form CA-2) alleging that he suffered pain in his right wrist, forearm, and elbow
due to federal employment duties. He noted that he first became aware of his right arm condition
on July 17, 2000 and realized its relationship to his federal employment on July 30, 2014. On the
claim form, appellant explained that he delayed in filing this claim as he believed his prior accepted
claim remained open.4 The record does not indicate that he stopped work.
In a March 1, 2016 statement, appellant described his right arm symptoms, relating that
loss of strength made his job difficult since he was required to frequently use tools that required
both repetitive rotating motion while simultaneously exerting extreme force. He noted that he was
not totally disabled from all work, but asked that the tasks that required the use of a forceful torque
motion, strenuous pulling, and lifting be eliminated.
By decision dated August 31, 2016, OWCP denied the claim finding that appellant had not
submitted sufficient information to establish that the employment events occurred as alleged. It
also noted that he had not established a diagnosed medical condition causally related to an alleged
employment event.
Appellant, through counsel, requested reconsideration on December 2, 2016. By decision
dated March 1, 2017, OWCP modified the August 31, 2016 decision finding that appellant had
established that the claimed employment events occurred as alleged. However, the claim remained
denied because the medical evidence of record failed to establish causal relationship between his
work exposure and diagnosed medical condition.5
Appellant subsequently appealed to the Board. By decision dated September 21, 2017, the
Board affirmed the March 1, 2017 OWCP decision, finding that he had not met his burden of proof
to establish his occupational disease claim, as the medical evidence of record was insufficient to
establish causal relationship between the accepted employment factors and a diagnosed medical
condition.6
On July 12, 2018 appellant, through counsel, requested reconsideration and submitted a
December 7, 2017 progress report from Dr. Harry A. Hoyen, Board-certified in orthopedic and
hand surgery. Dr. Hoyen noted appellant’s history of severe right wrist and forearm injuries with
3

Docket No. 17-1141 (issued September 21, 2017).

4

The present claim was assigned File No. xxxxxx755. In a claim adjudicated by OWCP under File No. xxxxxx543,
OWCP accepted that on July 17, 2000 appellant sustained an open fracture of the right radius when his right arm was
caught in a conveyor belt. It expanded acceptance of the claim to include right forearm keloid scarring.
5

OWCP thereafter administratively combined File Nos. xxxxxx755 and xxxxxx543, with File No. xxxxxx543
serving as the master file.
6

Supra note 3.

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a complaint of continued moderate-to-severe radiating pain. He described examination findings
of limited forearm motion, with tenderness over the distal radial ulnar joint (DRUJ) and wrist, and
some crepitus. Right wrist x-ray demonstrated remote and healed trauma with malunion fractures
and post-traumatic DRUJ degeneration. Dr. Hoyen advised that appellant’s right wrist condition
had progressed overtime, opining that this was due to the original fracture injury that had healed
in a malunion position which placed the wrist and DRUJ in a biomechanically stressed position.
He further indicated that this had been compounded by the repetitive stress of appellant’s job that
required loading of the wrist and forearm on a daily and near continuous basis.
By decision dated October 9, 2018, OWCP denied modification of its prior decision,
finding that the evidence of record was insufficient to establish causal relationship between the
accepted employment factors and a diagnosed medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,8 that an injury was sustained in the performance of duty as alleged, and
that any disability or specific condition for which compensation in claimed is causally related to
the employment injury.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
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) a 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.11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.12 The opinion of the physician must be
7

Supra note 2.

8

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

Id.

12

J.T., Docket No. 18-1755 (issued April 4, 2019).

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based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.13 This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.14
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 1, 2017 decision because the Board
has already considered that evidence in its September 21, 2017 decision.15 Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.16
With his July 12, 2018 reconsideration request appellant submitted a December 7, 2017
report in which Dr. Hoyen, his attending hand surgeon, advised that the original injury had healed
in a malunion position which placed the wrist and DRUJ in a biomechanically stressed position,
with x-ray evidence of DRUJ degeneration. Dr. Hoyen further indicated that this had been
compounded by the repetitive stress of appellant’s job that required loading of the wrist and
forearm on a daily and near continuous basis.
The Board finds that, while Dr. Hoyen’s December 7, 2017 report was not completely
rationalized, it raises an uncontroverted inference of causal relationship between his current
degenerative right wrist condition and the accepted factors of his federal employment. This report
is therefore sufficient to require OWCP to further develop the evidence of record.17
It is well established that, proceedings under FECA are not adversarial in nature and, while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.18
The Board will therefore remand the case for further development. On remand the Board
shall, prepare a statement of accepted facts, and thereafter obtain a rationalized opinion from an
appropriate Board-certified physician as to whether appellant’s current right wrist condition was
13

X.V., Docket No. 18-1360 (issued April 12, 2019).

14

T.W., Docket No. 18-1436 (issued April 14, 2019).

15

Supra note 3.

16

T.H., Docket No.18-1585 (issued March 22, 2019).

17

Supra note 13.

18

A.S., Docket No. 18-1381 (issued April 8, 2019).

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causally related to the accepted factors of his federal employment, either directly or through
aggravation, precipitation, or acceleration.19 Following this and any other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: July 2, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

19

Supra note 13.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.I., Appellant
and
DEPARTMENT OF DEFENSE, TINKER AIR
FORCE BASE, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1062
Issued: December 21, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 4, 2012 appellant filed a timely appeal from a February 27, 2012 decision of the
Office of Workers’ Compensation Programs denying his claim. The Board docketed the appeal
as No. 12-1062.
The Board has duly considered the matter and notes that on December 21, 2011
appellant, then a 57-year-old aircraft mechanic, filed a traumatic injury claim alleging that on
December 1, 2011 he injured his left elbow after hitting his elbow on shelves while installing a
cable pulley bracket. By decision dated February 27, 2012, OWCP denied his traumatic injury
claim because he failed to establish fact of injury. In denying appellant’s claim, it found that he
failed to submit any medical evidence containing a diagnosis. The evidence OWCP received
was listed and reviewed, but no mention or review was made of the February 1, 2012 report by
Dr. Michael J. Davoli, a treating Board-certified orthopedic surgeon, who noted that appellant
sustained an employment injury in December 2011 and diagnosed left elbow osteoarthritis with
synovitis and ulnar nerve symptoms.

Board precedent holds that OWCP must review all the evidence submitted by a claimant
and received by OWCP prior to the issuance of a final decision.1 As the Board’s jurisdiction is
final as to the subject matter, it is crucial that OWCP accomplish this.2
Because OWCP found that appellant failed to submit any medical evidence containing a
diagnosis, it is clear to this Board that OWCP did not consider the new medical evidence
submitted by appellant in reaching its decision denying his claim. Whether it receives relevant
evidence on the date of the decision or several days prior, such evidence must be considered.3
As OWCP failed to address all the relevant evidence of record at the time it issued is
February 27, 2012 decision, the case is remanded for a proper review of the evidence and
issuance of an appropriate final decision.
IT IS HEREBY ORDERED THAT the February 27, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: December 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1

See M.B., Docket No. 09-17(issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda
Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A.
Couch, 41 ECAB 548 (1990).
2

See id.

3

Willard McKennon, 51 ECAB 145 (1999).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS HOSPITAL,
Coatesville, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1305
Issued: July 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 26, 2008 appellant, through counsel, filed a timely appeal from a March 17,
2008 merit decision of the Office of Workers’ Compensation Programs denying his claim for an
additional schedule award. 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 has more than 16 percent impairment to the right upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated January 5, 2007, the
Board set aside a January 31, 2006 schedule award decision by an Office hearing representative
who affirmed a 16 percent permanent impairment of the right upper extremity.1 The Board noted
1

Docket No. 06-756 (issued January 5, 2007).

that the impairment rating was based on loss of range of motion due to the right shoulder
condition. However, the Board found that a conflict in medical opinion arose between
Dr. George L. Rodriguez, an attending Board-certified physiatrist, and Dr. Dennis P. McHugh, a
second opinion Board-certified orthopedic surgeon, as to whether appellant also had sensory or
motor impairment. The Board remanded the case to the Office for resolution of the conflict.
The findings of fact and conclusions of law from the prior decision are hereby incorporated by
reference.2
On March 9, 2007 the Office referred appellant to Dr. John H. Chidester, a Boardcertified orthopedic surgeon, for an impartial medical examination to determine whether he had
any sensory and motor impairment. In a March 27, 2007 report, Dr. Chidester diagnosed
employment-related right shoulder and cervical injuries. He noted that diagnostic studies
showed mild-to-moderate degenerative arthritic changes of the acromioclavicular joint and
tendinitis of the rotator cuff tendons. The cervical studies noted a disc herniation at C4-5 and
severe spinal stenosis at C5-6 due to degenerative disease. A physical examination revealed
marked cervical spine limitation. Cervical range of motion included 20 percent cervical bilateral
turning, 10 degrees flexion and 0 degrees extension. Dr. Chidester reported that the right
shoulder revealed full external and internal rotation, full forward flexion and “weakness of
abduction and some crepitation through the mid-abduction arc.” He reported no upper extremity
sensory, reflex or motor abnormality “other than the limitation of motion and slight weakness
described above.” Dr. Chidester provided work restrictions.
In a January 30, 2008 addendum, Dr. Chidester opined that appellant had no motor or
sensory deficits due to his cervical spine injury. He noted limited range of motion, as addressed
in the prior report, that he described as postsurgical changes and not representing neurologic
deficit due to the noted disc herniation. Dr. Chidester stated that appellant’s numbness and
tingling in his hands had been relieved by the cervical discectomy and fusion.
In a February 19, 2008 report, the Office medical adviser reviewed Dr. Chidester’s
medical reports. He noted that Dr. Chidester did not confirm the sensory or motor deficits found
by Dr. Rodriguez. The Office medical adviser stated that Dr. Chidester confirmed the findings
of Dr. McHugh’s report, which found no upper extremity sensory or motor deficits due to
appellant’s accepted cervical condition.
By decision dated March 17, 2008, the Office denied an additional schedule award.

2

On September 23, 2001 appellant, a 46-year-old housekeeping aid, injured his right shoulder while throwing a
heavy bag of trash in the dumpster. The Office accepted the claim for right shoulder acute and subacromial
impingement and authorized right shoulder arthroscopy and rotator cuff repair, which was performed on
December 27, 2001. On October 11, 2002 it accepted aggravation of cervical degenerative disc disease, herniated
disc at C5-6 and authorized anterior cervical fusion surgery, which was performed on December 9, 2002. The Board
affirmed the denial of appellant’s claim of a schedule award for erectile dysfunction.

2

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulations,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)5 has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.6
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.7 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.8 The Board notes that section
8109(19) specifically excludes the back from the definition of organ.9 However, a claimant may
be entitled to a schedule award for permanent impairment to an upper or lower extremity even
though the cause of the impairment originated in the neck, shoulders or spine.10
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.11 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician of an Office medical adviser or consultant, the
Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty
and who has had no prior connection with the case.12

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

See supra note 4.

7

See Joseph Lawrence, Jr., supra note 5; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989).
8

Thomas J. Engelhart, 50 ECAB 319 (1999).

9

See supra note 3; see also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

5 U.S.C. § 8109(c).

11

Id. at § 8123(a).

12

20 C.F.R. § 10.321.

3

It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.13 When the
Office obtains an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration,
the Office must secure a supplemental report from the specialist to correct the defect in his
original report.14
ANALYSIS
The Board previously noted that appellant had a 16 percent permanent impairment
resulting from his employment-related right shoulder condition based on loss of range of motion.
However, there was an unresolved conflict in the medical opinion evidence between
Dr. Rodriguez and Dr. McHugh on the issue of whether appellant also had sensory or motor
impairment due to his cervical spine condition. On remand, the Office properly referred
appellant to Dr. Chidester to resolve this conflict.
In a March 27, 2007 report, Dr. Chidester noted that a physical examination revealed
marked cervical spine limitation. He found, however, that there was no upper extremity sensory,
reflex or sensory abnormality “other than the limitation of motion and slight weakness described
above.” In a January 30, 2008 addendum, Dr. Chidester opined that appellant had no motor or
sensory upper extremity deficits due to his cervical spine injury. He attributed the limited range
of motion addressed in his first report as the result of postsurgical changes, which did not
represent any neurologic deficit due to the noted disc herniation.
The Office medical adviser noted that Dr. Chidester did not confirm the sensory or motor
deficits noted by Dr. Rodriguez. He advised that Dr. Chidester confirmed the findings of
Dr. McHugh’s report, which found no upper extremity sensory or motor deficits due to
appellant’s accepted cervical spine injury. The Board finds that the Office properly relied on the
findings of Dr. Chidester, the impartial medical specialist, that appellant did not sustain any
sensory or motor impairment due to his accepted cervical condition. The Office properly found
that Dr. Chidester’s report constituted the special weight of the medical evidence and established
that appellant did not have greater impairment than the 16 percent right upper extremity
impairment already awarded.
As there is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment, the Office properly found that he did not have more than a
16 percent right upper extremity impairment.

13

L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008); Gloria J. Godfrey, 52 ECAB 486 (2001).

14

L.R. (E.R)., 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Raymond A. Fondots, 53 ECAB
637, 641 (2002).

4

CONCLUSION
The Board finds that appellant has not established that has more than 16 percent
impairment to the right upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 17, 2008 is affirmed.
Issued: July 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL BASE, Williamsburg, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1945
Issued: March 25, 2021

Case Submitted on the Record

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

JURISDICTION
On September 16, 2019 appellant filed a timely appeal from a March 21, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $28,772.70, for the period October 1, 2014 through September 15, 2018, because he
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 21, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

age-related retirement benefits without an appropriate offset, for which he was without fault;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $356.93 from appellant’s
continuing compensation benefits, every 28 days.
FACTUAL HISTORY
On January 8, 2001 appellant, then a 48-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that, on December 13, 2000 he injured his neck and back when
climbing on a defective ladder, he fell while in the performance of duty. He stopped work on
December 13, 2000, and on March 7, 2001 OWCP accepted the claim for temporary aggravation
of a preexisting back strain. OWCP paid appellant wage-loss compensation benefits on the
periodic rolls commencing May 19, 2002. On June 13, 2002 appellant retired from his federal
employment due to disability. On November 28, 2006 OWCP accepted the additional conditions
of cervicalgia and thoracic or lumbosacral neuritis.
In October 2014 appellant became eligible to receive SSA age-related retirement benefits.
On December 29, 2017 OWCP provided SSA with a Federal Employees Retirement
System (FERS)/SSA dual benefits calculation form.
On May 9, 2018 SSA completed the dual benefits calculation form, which indicated
appellant’s SSA benefit rates with a FERS offset and without a FERS offset from October 2014
through December 2017. Beginning October 2014, the SSA rate with FERS was $1,699.50 and
without FERS was $1,108.90. Beginning December 2014, the SSA rate with FERS was $1,728.30
and without FERS was $1,127.70. Beginning December 2015, the SSA rate with FERS was
$1,728.30 and without FERS was $1,127.70. Beginning December 2016, the SSA rate with FERS
was $1,733.40 and without FERS was $1,131.00. Beginning December 2017, the SSA rate with
FERS was $1,768.00 and without FERS was $1,153.50.
A September 25, 2018 FERS offset calculation worksheet noted each period of
overpayment and provided calculations which resulted in a total overpayment to appellant of
$28,772.70 during the period October 1, 2014 through September 15, 2018.
A September 26, 2018 periodic disability rolls payment plate for appellant’s compensation
from September 16, to October 13, 2018 indicated that his FERS offset was deducted from his
compensation.
In a preliminary overpayment determination notice dated February 13, 2019, OWCP
informed appellant that he received an overpayment of compensation in the amount of $28,772.70
because the SSA/FERS offset was not applied to payments for the period October 1, 2014 through
September 15, 2018. It determined that he was without fault in the creation of the overpayment
because he was not aware he was paid compensation incorrectly. OWCP requested that appellant
submit a completed Form OWCP-20 to determine a reasonable method for recovery and advised
him that he could request a waiver of recovery of the overpayment. It requested financial
information, including copies of income tax returns, bank account statements, bills, pay slips, and
any other records to support income and expenses. OWCP advised appellant that it would deny

2

waiver if he failed to furnish the requested financial information within 30 days. It further notified
him that, within 30 days of the date of the letter, he could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
Appellant provided a December 7, 2018 Chapter 13 bankruptcy plan that listed his monthly
income as $2,714.61, which included $1,199.00 from Social Security, $1,399.00 from OWCP, and
$116.00 from pension or retirement income. He noted his monthly expenses as $2,388.00, which
included $50.00 for home maintenance, repair, and upkeep expenses; $200.00 for electricity, heat,
and natural gas; $100.00 for water, sewer, and garbage collection; $110.00 for telephone,
cellphone, internet, satellite, and cable services; $375.00 for food and household supplies; $40.00
for clothing, laundry, and dry cleaning; $32.00 for personal care products and services; $125.00
for medical and dental expenses; $175.00 for transportation expenses including gas, maintenance,
bus, or train fare; $79.00 for entertainment, clubs, recreation, newspapers, magazines, and books;
$60.00 for charitable contributions and religious donations; $92.00 for vehicle insurance; $33.00
for personal property; and $135.00 for miscellaneous expenses. The form indicated that when
appellant subtracted his monthly expenses from his monthly income he arrived at a remainder
amount of $325.65. He further provided account summaries from two separate bank accounts, one
of which indicated that on February 13, 2019 his account balance was $575.72, and the other
indicated that on February 19, 2019 his account balance was $218.08.
In a February 22, 2019 Form OCWP-20 appellant listed his monthly income as $1,614.00.
He included his monthly SSA benefits, which he listed as $1,498.00, and he listed other
unspecified benefits as $116.00. Appellant noted that he did not have any dependents. He listed
the total value of funds in his possession as $577.00.
On March 4, 2019 appellant requested a decision based on the written evidence. He
contested the overpayment because he was found to be without fault in the creation of the
overpayment, and therefore requested waiver of recovery of the overpayment. Appellant
explained further that he had always submitted requested information, and he stated that he had
previously requested an explanation of how his benefits were calculated and was never given an
answer.
By decision dated March 21, 2019, OWCP finalized the February 13, 2019 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $28,772.70 for the period October 1, 2014 through September 15, 2018 because it had
failed to offset his compensation payments by the portion of his SSA benefits that were attributable
to federal service and that appellant did not have actual knowledge of the calculation error. It
further found that he was without fault in the creation of the overpayment, but denied waiver of
recovery of the overpayment because the evidence of record failed to establish that recovery of an
overpayment would defeat the purpose of FECA or would be against equity and good conscience.
OWCP found that it would recover the overpayment by deducting $356.93 every 28 days from
appellant’s continuing wage-loss compensation payments.
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

3

performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation, as he concurrently received SSA age-related retirement benefits while receiving
FECA wage-loss compensation for the period October 2014 through September 15, 2018.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA age-related retirement benefits attributable to federal service for the same period.7 The
information provided by SSA accurately indicated that appellant had received SSA age-related
retirement benefits that were attributable to his federal service from October 2014 through
September 15, 2018. Thus, the record establishes that he received an overpayment of FECA wageloss compensation.8
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. The Board finds that OWCP
miscalculated the amount of the overpayment. To determine the amount of overpayment, the SSA
provided appellant’s SSA rate with FERS and without FERS during the applicable period. OWCP
determined that the difference of the portion of SSA age-related retirement benefits attributed to
his federal service needed to be offset against his OWCP compensation benefits. It found that,
since SSA age-related retirement benefits were paid monthly (12 per year) and FECA benefits
were paid every 28 days (13 per year), the monthly offset needed to be adjusted to a 28-day
payment cycle amount. This amount differed for each period beginning October 1, 2014. OWCP
calculated that the lack of offset from October 1, 2014 to September 15, 2018 resulted in an
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
6

FECA Bulletin No. 97-09 (issued February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31,
2019); N.B., Docket No. 18-0795 (issued January 4, 2019).
7

Supra note 5. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued
February 21, 2019).
8

Id.

4

overpayment in the amount of $28,772.70, however, when calculating the offset it used incorrect
numbers for appellant’s SSA rate without FERS for the period December 1, 2014 to November 30,
2015 ($1,728.30 instead of $1,728.70) and the period December 1, 2017 to September 15, 2018
($1,153.30 instead of $1,153.50). The Board has recalculated his amount of overpayment using
the correct numbers by following the same steps used by OWCP, and it finds that he received an
overpayment in the amount of $28,764.77.
The Board therefore finds that appellant received prohibited dual benefits totaling
$28,764.77, thus creating an overpayment of compensation in that amount for the period
October 1, 2014 through September 15, 2018.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”9 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.10
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.11
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.12 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.13
OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
9

5 U.S.C. § 8129.

10

20 C.F.R. § 10.438.

11

Id. at §§ 10.434-10.437.

12

Id. at § 10.436.

13
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2018).

5

each additional dependent.14 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Non liquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per
immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry,
and artwork.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
OWCP determined that appellant was not at fault in the creation of the overpayment. It
may therefore only require recovery of the overpayment if it would not defeat the purpose of FECA
or be against equity and good conscience.16 In order to establish that, repayment of the
overpayment would defeat the purpose of FECA, appellant must show that he requires
substantially all of his income to meet current ordinary and necessary living expenses and that his
assets do not exceed the established limit as determined by OWCP procedures.17
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. Based on his December 7, 2018
Chapter 13 bankruptcy plan, his monthly income exceeded his expenses, including, but not limited
to his ordinary and necessary living expenses, by more than $50.00. Therefore, appellant did not
need substantially all of his income for ordinary and necessary living expenses.18 Because he has
not met the first prong of the two-prong test of whether recovery of the overpayment would defeat
the purpose of FECA, it is unnecessary for OWCP to consider the second prong of the test, i.e.,
whether his assets do not exceed the allowable resource base.19
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he would
experience severe financial hardship in attempting to repay the debt or that he relinquished a
valuable right or changed his position for the worse in reliance on the payment which created the
overpayment.20

14

Id. at Chapter 6.400.4a(2).

15

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

16

See A.C., Docket No. 18-1550 (issued February 21, 2019).

17

N.J., Docket No. 19-1170 (issued January 10, 2020).

18

See Supra note 17.

19

I.J., Docket No. 19-1672 (issued March 10, 2020).

20

Id.

6

Because appellant has not established that, recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, he has failed to establish that OWCP
acted improperly by denying waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21 Section
10.441(a) of the regulations 33 provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”22
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly required recovery of the overpayment by
deducting $356.92 from appellant’s continuing compensation payments every 28 days.
Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact and
make an award for or against payment of compensation.23 Its regulations at section 10.126 of Title
20 of the Code of Federal Regulations provide: “The decision [of the Director of OWCP] shall
contain findings of fact and a statement of reasons.”24 Moreover, the Federal (FECA) Procedure
Manual provides that the claims examiner’s “evaluation of the evidence should be clear and
detailed so that the reader understands the reason for the disallowance of the benefit and the
evidence necessary to overcome the defect of the claim.”25
Herein, OWCP failed to provide any discussion or explanation for how it calculated
$356.93 as the amount to be deducted from appellant’s continuing compensation benefits every 28
days. The Board finds that OWCP failed to take into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship, as required by OWCP’s regulations stated

21

20 C.F.R. § 10.441(a).

22

Id.

23

5 U.S.C. § 8124(a); see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert Jones, Jr., 57 ECAB
467 (2006).
24

20 C.F.R. § 10.126.

25

Supra note13 at Chapter 2.1400.5c(3)(e) (February 2013).

7

above.26 Therefore, the Board further finds that in its March 21, 2019 decision OWCP did not
discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining
the disposition so that appellant could understand the basis for the decision.27
Accordingly, the Board remand the case for OWCP to make findings of fact and provide
reasons for its decision regarding its calculation of the amount to be deducted from appellant’s
continuing compensation payments every 28 days, pursuant to the standards set forth in section
5 U.S.C. § 8128(a) and 20 C.F.R. § 10.126. After such further development as OWCP deems
necessary, it shall issue a de novo decision on the amount of recovery.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period October 1, 2014 through September 15, 2018 because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without an appropriate offset for which he was without fault, and the Board notes that it has
modified OWCP’s calculation, finding that appellant was overpaid in the amount of $28,764.77.
The Board further finds that it properly denied waiver of recovery of the overpayment, however,
the Board finds that this case is not in posture for decision regarding the amount to be deducted
from appellant’s continuing compensation benefits every 28 days.

26

See supra note 23.

27

See J.M., Docket No. 18-0729 (issued October 17, 2019); J.J., Docket No. 11-1958 (issued June 27, 2012).

8

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: March 25, 2021
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

)
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)

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

Docket No. 11-1123
Issued: November 7, 2011

Case Submitted on the Record

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

JURISDICTION
On April 5, 2011 appellant filed a timely appeal from a January 7, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for an
oral hearing. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision in this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.2

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant argued the merits of the case. Under 20 C.F.R. § 501.3(e), for decisions of OWCP issued
on or after November 19, 2008, the Board’s review authority is limited to appeals which are filed within 180 days
from the date of issuance of the decision. The last decision issued by OWCP addressing the merits of appellant’s
case was dated June 3, 2010, more than 180 days before appellant’s appeal. The Board is without jurisdiction to
review the June 3, 2010 OWCP decision.

FACTUAL HISTORY
On December 7, 2009 appellant, then a 46-year-old mail handler, filed an occupational
disease claim alleging that she sustained injury due to her work conditions. As a result of the
demanding nature of her work, she started feeling pain in her neck, shoulders, and wrist, in
addition to suffering from high blood pressure and headache.
In support of her claim, appellant submitted a series of statements and medical reports.
Her injuries began on September 26, 2008, when a postcon gate slid down on her fingers.
Appellant filed a separate claim for the September 26, 2008 injury, which was given OWCP No.
xxxxxx970 and was accepted for crushing injury to the fingers of the right hand and a neck
sprain.
In a supplemental statement, appellant explained that, after she returned to work, she was
reassigned as a mail handler. This required activities be performed overhead, such as reaching,
pushing, pulling and grabbing with hand manipulation. She alleged that her daily duty of
supplying postcons should have been performed by operation of a jeep power jet, but she had not
been properly trained to use a power jet. On February 14, 2010 appellant’s supervisor refuted
the claim, asserting that she did not require power jet training.
OWCP received reports from Dr. Dante A. Cubangbang, Board-certified in physical
medicine, dated January 17 through April 20, 2010. Dr. Cubangbang noted that appellant had
neck pain/cervicalgia, cervical radiculopathy, right hand pain, second traumatic arthropathy and
right shoulder tendinitis. He found that appellant was totally disabled but was able to return to
part-time work as of April 8, 2010.
In a June 3, 2010 decision, OWCP denied appellant’s claim finding that she failed to
provide an accurate description of her job duties and had not established fact of injury.
Appellant disagreed
December 8, 2010.

with

the

decision

and

requested

an

oral

hearing

on

In a decision dated January 7, 2011, OWCP denied appellant’s request for an oral
hearing. It found that the request was not timely filed. Appellant was also informed that her
case had been considered in relation to the issues involved, and that the request was denied as the
issues could be addressed by requesting reconsideration before OWCP and submitting evidence
not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that, before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.3 Section 10.616(a) of the federal regulations
implementing this section of FECA provides that a claimant, injured on or after July 4, 1966,
3

5 U.S.C. § 8124(b)(1).

2

who has received a final adverse decision by OWCP may obtain a hearing by writing to the
address specified in the decision. The hearing request must be sent within 30 days (as
determined by the postmark or other carrier’s date marking) of the date of the decision for which
a hearing is sought.4
OWCP, in its broad discretionary authority in the administration of FECA, has the power
to hold hearings in certain circumstances where no legal provision was made for such hearings,
and OWCP must exercise this discretionary authority in deciding whether to grant a hearing.
OWCP’s procedures, which require OWCP to exercise its discretion to grant or deny a hearing
when a hearing request is untimely or made after reconsideration under section 8128(a), are a
proper interpretation of FECA and Board precedent.5
ANALYSIS
Appellant requested a hearing before OWCP’s Branch of Hearings and Review in a letter
dated December 8, 2010. As the request was submitted more than 30 days following issuance of
the June 3, 2010 decision, it was untimely filed.
OWCP considered the matter in relation to the issue involved and found that additional
evidence could be submitted with a request for reconsideration. It has administrative discretion
in determining whether a hearing should be granted even though the request is untimely. An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.6 Because OWCP reviewed appellant’s request for hearing and exercised
its discretion in denying appellant’s request, the Board finds that OWCP properly denied
appellant’s untimely request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely.

4

N.M., 59 ECAB 511 (2008).

5

Sandra F. Powell, 45 ECAB 877 (1994).

6

Samuel R. Johnson, 51 ECAB 612 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the January 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 12-759
Issued: October 26, 2012

Case Submitted on the Record

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

JURISDICTION
On February 22, 2012 appellant, through his attorney, filed a timely appeal from a
December 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
February 1, 2011 causally related to his accepted May 27, 2010 employment injury.
On appeal, appellant’s counsel contends that OWCP erred in its consideration of a
physician’s report and is contrary to the facts and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 27, 2010 appellant, then a 22-year-old carrier, injured his right leg and left hand
when running away from a dog while delivering mail. OWCP accepted the claim for right ankle
sprain and left fifth finger sprain.
On February 14 and March 1, 2011 Dr. Todd Schwartz, a treating osteopath, diagnosed
right posterior tibialis tendinopathy. He listed physical findings and noted that appellant had
aggravated his right ankle tendinopathy approximately two weeks prior. Dr. Todd reported no
abnormalities were seen on an x-ray study. He related that appellant had been unable to perform
his normal activities due to the persistent pain and difficulty walking.
In a March 10, 2011 magnetic resonance imaging (MRI) scan, Dr. Steven H. Kalchman, a
Board-certified radiologist, diagnosed degenerative cystic changes which did not appear to
represent a significant tear or significant tendinopathy.
On April 18, 2011 appellant filed a claim for a recurrence of disability beginning
February 1, 2011 due to his accepted May 27, 2010 employment injury. He noted that he had
been on light duty until returning to full duty on December 27, 2010. Appellant stated that he
saw his physician on January 31, 2011 who took him off work.
By letter dated April 28, 2011, OWCP informed appellant that the evidence was
insufficient to establish his recurrence claim. Appellant was advised as to the definition of a
recurrence and the evidence needed to support his claim. He was given 30 days to provide the
requested information.
By decision dated June 1, 2011, OWCP denied appellant’s claim. It found that he failed
to submit any medical evidence to support a recurrence of disability.
On June 7, 2011 counsel requested an oral hearing before an OWCP hearing
representative, which was held on September 26, 2011.
In a November 8, 2011 report, Dr. Schwartz noted the history of appellant’s employment
injury, provided physical findings and addressed the medical treatment provided. He related that
appellant had significant improvement when seen on December 20, 2010, but was seen on
February 14, 2011 for a reaggravation of his ankle condition. Dr. Schwartz related that appellant
was diagnosed with right posterior tibialis tendinopathy on February 14 and March 1, 2011. He
opined that appellant’s right ankle and foot sprain developed into posterior tibial tendinopathy.
By decision dated December 23, 2011, OWCP’s hearing representative affirmed the
June 1, 2011 decision.2

2

OWCP’s hearing representative instructed appellant to file an occupational disease claim if he attributed his
condition to new employment factors following his return to full duty.

2

LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means 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 (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.3
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.4 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.5 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.6 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of disability on February 1, 2011. OWCP accepted his claim for right
ankle sprain and left fifth finger sprain. Following his injury, appellant performed light-duty
work until returning to full duty on December 27, 2010. On April 18, 2011 he filed a recurrence
claim, contending that he sustained disability on February 1, 2011 due to his accepted condition.
The Board finds that appellant failed to submit sufficient rationalized medical evidence to
establish that his disability was causally related to the right ankle sprain or left fifth finger sprain.
Appellant submitted progress notes dated February 14 and March 1, 2011 and a
November 8, 2011 report from Dr. Schwartz, who diagnosed posterior tendinopathy.
Dr. Schwartz reported that appellant had aggravated his right ankle tendinopathy approximately
two weeks prior to February 14, 2011. He did not further explain how such aggravation related
to the accepted conditions or to work appellant performed. On November 18, 2011 Dr. Schwartz
opined that appellant’s right ankle and foot sprain developed into posterior tibial tendinopathy.
3

20 C.F.R. § 10.5(x).

4

Kenneth R. Love, 50 ECAB 193, 199 (1998).

5

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

6

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

7

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

3

The Board notes that OWCP has not accepted the condition of posterior tibial tendinopathy.8
Dr. Schwartz provided insufficient rationale addressing how accepted right ankle and foot sprain
developed into posterior tibial tendinopathy. The Board has held that opinions unsupported by
rationale are of diminished probative value.9 Furthermore, Dr. Schwartz’s February 14, 2011
progress note attributed appellant’s recurrence to an aggravation of right ankle tendinopathy two
weeks prior. It appears that this would implicate the work appellant performed following his
return to full duty as a causal factor.
The MRI scans do not contain an opinion as to the cause of appellant’s condition. They
are of diminished probative value and are insufficient to establish appellant’s claim.10 The Board
finds that the medical evidence of record does not establish that appellant sustained a recurrence
of disability and OWCP properly denied his claim.
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.
On appeal, counsel contends that OWCP erred in its interpretation of the law, facts and
evaluation of Dr. Schwartz’s opinions. The Board finds that the reports of Dr. Schwartz do not
adequately address the issue of causal relation.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability commencing February 1, 2011 causally related to the accepted May 27, 2010
employment injury.

8

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not accepted
by OWCP as being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship).
9

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

Mary E. Marshall, 56 ECAB 420, 427 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 23, 2011 is affirmed.
Issued: October 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-0153
Issued: October 8, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On October 31, 2014 appellant, through counsel, filed a timely appeal from an October 8,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) which finalized
a preliminary determination that appellant received an overpayment of compensation in the
amount of $1,244.16. The Board docketed the appeal as No. 15-0153.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
On October 3, 2007 appellant, a 50-year-old tractor operator, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right leg injury on August 15, 2007 as a result of
tripping and twisting his right knee during removal of scrap operation equipment. OWCP
accepted the claim for right knee sprain and lateral and medial meniscus tears of the right knee.
On April 11, 2012 appellant, through counsel, filed a claim for a schedule award. By decision
dated September 17, 2012, OWCP granted appellant a schedule award for 12 percent permanent
impairment to the right lower extremity.
In a decision dated January 8, 2014, OWCP expanded appellant’s accepted conditions to
include localized secondary osteoarthritis of the lower right leg. By decision dated February 21,
2014, it rescinded appellant’s schedule award because it was “calculated based on incorrect

information and mathematical calculations, resulting in an incorrect schedule award
determination.” By decision dated August 21, 2014, OWCP granted appellant a schedule award
for 10 percent permanent impairment to the right lower extremity.
In a September 3, 2014 letter, OWCP advised appellant of its preliminary determination
that he received a $1,244.16 overpayment of compensation due to an incorrect payment of a
schedule award. It found that he had received $22,628.16 in compensation for 12 percent
permanent impairment to the right lower extremity when he was only entitled to $21,384.00 in
compensation for a 10 percent permanent impairment. OWCP also made a preliminary
determination that appellant was not at fault in the creation of the overpayment of compensation
as he had not accepted a payment that he knew or should have known was incorrect. By decision
dated October 8, 2014, it finalized its preliminary determination that appellant received an
overpayment of compensation in the amount of $1,244.16. However, in a decision dated
October 17, 2014, an OWCP hearing representative set aside OWCP’s schedule award decisions
dated February 21 and August 21, 2014 and remanded the case to refer appellant for a new
second opinion examination to determine the nature and extent of his right lower extremity
impairment.
The Board finds that OWCP had jurisdiction to issue its October 17, 2014 decision
vacating its prior schedule award decisions because appellant did not file her appeal to this Board
until October 31, 2014.1 Thus, the October 17, 2014 OWCP decision did not change the status
of the decision on appeal because there was no Board appeal at the time of issuance.2
When OWCP makes a determination that an overpayment of compensation has occurred
because the claimant received an erroneous schedule award, it must first calculate the schedule
award.3 However, the percentage of impairment remains in question as per the October 17, 2014
decision of OWCP’s hearing representative who set aside the schedule award decisions. Because
OWCP has not determined the correct extent of appellant’s right lower extremity impairment, it
cannot show that he received an overpayment of compensation. Therefore, OWCP had no basis
for issuing its October 8, 2014 overpayment decision. For this reason, the fact of overpayment is
not in posture for decision pending further adjudication of appellant’s right lower extremity
impairment. Accordingly, the case is remanded to OWCP for further development of the
evidence regarding this matter. After such development as it deems necessary, OWCP shall
issue a de novo decision regarding any overpayment issues.

1

See Douglas E. Billings, 41 ECAB 880 (1990) (where the Board held that the only decisions of OWCP that are
null and void because the case is on appeal to the Board are those which change the status of the decision on appeal).
2

Id. The Board notes that had OWCP issued the schedule award decision after the Board had acquired
jurisdiction, the decision would have been null and void as it would have changed the status on appeal. The Board
and OWCP may not exercise simultaneous jurisdiction over the same issue in a case on appeal. See id.; see also
20 C.F.R. § 501.2(c)(3).
3

See C.A., Docket No. 08-1076 (issued November 17, 2008) (where the Board found that the overpayment issue
was not in posture for decision because OWCP had not properly resolved the schedule award issue).

2

IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this order of the Board.
Issued: October 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, BOWLING GREEN
STATION, New York City, NY, Employer
__________________________________________

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

Docket No. 17-0216
Issued: February 13, 2018

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 November 7, 2016 appellant filed a timely appeal from an October 5, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on October 5, 2016 pursuant to 5 U.S.C. § 8106(c).
HISTORY
On February 24, 1978 appellant, then a 31-year-old supply clerk, fractured her left ankle
when she fell from a platform at work. She stopped work that day. OWCP initially accepted
closed fracture of the medial malleolus of the left ankle, which was repaired surgically on
1

5 U.S.C. § 8101 et seq.

March 3, 1978. Appellant received continuation of pay from February 25 to April 10, 1978, and
wage-loss compensation benefits until she returned to work on August 11, 1978.
Appellant continued to work until October 7, 1998, when she had surgery for screw
removal and left ankle fusion. She thereafter received wage-loss compensation and was placed
on the periodic compensation rolls. Appellant returned to a modified position for a brief period
in July 1999. OWCP thereafter accepted a July 17, 1999 recurrence of disability, and she did not
return to work after that date. Appellant had additional left ankle surgery on December 2, 1999.
She retired from the employing establishment, effective October 11, 2001, and moved from New
York to Pennsylvania. Appellant continued to receive FECA benefits on the periodic rolls. In
2012 she moved to North Carolina.
Dr. Mark W. Puffenberger, a family physician, submitted reports and work capacity
evaluations (Form 5c) dated June 9, 2008 to March 23, 2015 in which he noted appellant’s
complaint of chronic joint pain in her left ankle following a fall at work in 1978. He described
physical examination findings and diagnosed osteoarthrosis of the ankle/foot. Dr. Puffenberger
advised that appellant was totally disabled and could never return to work.
In a November 14, 2014 report, Dr. Glenn E. MacNichol, Board-certified in
anesthesiology, advised that appellant was under treatment for the conditions of chronic pain of
the left ankle, bilateral hip pain, and chronic low back pain associated with intermittent lumbar
radiculopathy. He advised that appellant’s ankle pain was due to the previous ankle fracture and
that her back pain was multifactorial, indicating that her gait disturbance aggravated her back
pain.
In April 2015 OWCP referred appellant to Dr. Lawrence N. Larabee, a Board-certified
orthopedic surgeon, for a second opinion evaluation. The statement of accepted facts (SOAF)
provided to the physician indicated that the additional condition of general osteoarthritis,
multiple sites, left, had been accepted. In a May 27, 2015 report, Dr. Larabee noted the history
of injury and his review of the SOAF and medical record. He noted moderate swelling and
marked deformity present in examination of the left ankle and that appellant limped with a leftsided antalgic gait. Dr. Larabee diagnosed fixed deformity and ankylosed midfoot and advised
that the accepted conditions had not resolved. He indicated that appellant could work eight hours
a day in a sitting position and that she had reached maximum medical improvement (MMI) in
2007. Dr. Larabee provided restrictions of eight hours sitting and four hours operating a motor
vehicle, with no walking, standing, twisting, bending, stooping, or climbing.
OWCP asked that the employing establishment prepare a modified job offer that
comported with the restrictions provided by Dr. Larabee. The employing establishment offered
appellant a modified mail processing clerk position on February 22, 2016. The job offer was in
New York City, with duties of casing manual letters for eight hours. The physical requirements
were sitting up to eight hours with pushing, pulling, and lifting up to 20 pounds intermittently for
eight hours. Appellant refused the offer on March 3, 2016, noting that she attached a report from
Dr. Thomas Gennosa.2
2

No report from Dr. Gennosa is found in the case record.

2

In a supplemental report dated April 18, 2016, Dr. Larabee advised that appellant could
walk as a part of her work duties for 30 minutes daily, could walk coming and going from work
for 30 minutes daily, that she could not stand and work, but could stand for 30 minutes coming
and going from work. He reviewed the February 22, 2016 job offer and advised that she could
perform the position. In an attached work capacity evaluation, Dr. Larabee provided permanent
restrictions that appellant could walk for 1.5 hours daily, stand for 30 minutes, operate a motor
vehicle for 4 hours at work and 4 hours to and from work, and that she could not twist, bend,
stoop, or climb.
On May 6, 2016 the employing establishment informed OWCP that it had completed the
search for a modified assignment in appellant’s geographical area and had been unable to
identify a suitable assignment that fit her restrictions. A priority for assignment worksheet was
attached.
By letter dated May 23, 2016, OWCP informed the employing establishment that the
February 22, 2016 job offer was found suitable except that relocation expenses were not
authorized. It explained that, as the evidence of record indicated that appellant was no longer on
the employing establishment rolls, in accordance with OWCP regulations relocation expenses
should be provided since she had moved from her previous duty station.
On July 26, 2016 the employing establishment again offered appellant the modified
processing clerk position. It noted that relocation expenses were authorized when the offer was
accepted. Appellant refused the position on August 1, 2016, stating that she was under pain
management and that she took hydrocodone four times daily, all due to her fractured left ankle.
By letter dated August 11, 2016, OWCP advised appellant that the position offered was
suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, her right wage-loss
compensation or a schedule award would be terminated. She was afforded 30 days to respond.
On September 9, 2016 appellant forwarded her August 1, 2016 refusal of the job offer.
Medical evidence attached included a May 11, 2015 magnetic resonance imaging (MRI) scan of
lumbar spine that demonstrated severe stenosis from L3-4 through L5-S1, moderate-to-severe
facet degenerative disease, grade 1 anterolisthesis of L4 on L5, and moderate-to-severe loss of
disc space height. A November 11, 2015 left ankle fracture demonstrated surgical changes and
considerable degenerative change. An incomplete, unsigned emergency department report date
August 4, 2016 noted diagnoses of fall with abrasion of cheek. In an August 30, 2016 report,
Kristin W. Warren, a physician assistant, noted diagnoses of diabetes mellitus, tobacco
dependence syndrome, localized osteoarthrosis, osteoarthritis of ankle, ankle joint pain, low back
pain, and elevated blood pressure. She indicated that left ankle examination demonstrated
swelling, pain with palpation, limited range of motion due to fusion, and a slight limp without
ambulation. Ms. Warren diagnosed left ankle pain, described appellant’s medication regimen,
and advised that she could continue activities as tolerated.
On September 2, 2016
Dr. Akpomudiare Otuguor, a Board-certified family physician, advised that appellant had
chronic medical problems including bulging disc at the lower back for which she received steroid
injections. He further noted the history of multiple surgeries including fusion of the left ankle,

3

that she attended pain management, and that she ambulated with a cane. Dr. Otuguor concluded
that, due to these medical conditions, appellant would have difficulty with work.
By letter dated September 12, 2016, OWCP advised appellant that her reasons for
refusing the offered position were not valid. Appellant was afforded an additional 15 days to
accept the offered position. On October 3, 2016 the employing establishment indicated that the
offered position remained available.
In an October 5, 2016 decision, OWCP terminated appellant’s wage-loss compensation
and right to a schedule award effective that date because she refused an offer of suitable work. It
noted that the medical evidence submitted by appellant did not contain an explanation of why
she could not perform the offered position and found that the weight of medical evidence rested
with the opinion of Dr. Larabee who provided the second opinion evaluation.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.5 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.6 In determining what constitutes “suitable work” for a particular
disabled employee, it considers the employee’s current physical limitations, whether the work is
available within the employee’s demonstrated commuting area, the employee’s qualifications to
perform such work, and other relevant factors.7
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.8 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling. The weight of such evidence is determined by its
reliability, its probative value, and its convincing quality. The factors that comprise the
evaluation of medical evidence include the opportunity for and the thoroughness of physical
3

5 U.S.C. § 8106(c)(2).

4

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

5

20 C.F.R. § 10.517(a).

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
7

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8

Gayle Harris, 52 ECAB 319 (2001).

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examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested, and the medical rationale expressed in support
of the physician’s opinion.9
OWCP procedures provide that acceptable reasons for refusing an offered position
include withdrawal of the offer or medical evidence of inability to do the work or travel to the
job.10 If possible, the employing establishment should offer suitable employment in the location
where the employee currently resides. If this is not practical, it may offer suitable reemployment
at the employee’s former duty station or other location.11
ANALYSIS
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits.12 This includes cases where OWCP terminates
compensation under section 8106(c) of FECA for refusal of suitable work.13 Section 8106(c) is a
penalty provision and shall be narrowly construed.14
The Board finds that OWCP did not meet its burden of proof to terminate wage-loss
compensation on October 5, 2016. OWCP found that the weight of the medical evidence rested
with the opinion of Dr. Larabee who provided a second opinion evaluation. However, the Board
finds that Dr. Larabee’s reports are lacking because his answers in both the May 27, 2015 and
April 18, 2016 reports were cursory and not well reasoned and were thus insufficient to meet
OWCP’s burden of proof.
In his May 27, 2015 report, Dr. Larabee provided few physical examination findings,
merely noting that the left ankle had moderate swelling with a marked deformity evident and an
ankylosed mid-foot. When asked for objective findings to support disability, he merely indicated
“same,” fixed deformity and ankylosed mid-foot. Likewise, in his April 18, 2016 supplemental
report, Dr. Larabee gave only abbreviated answers and no rationale for the time restrictions he
listed. To meet its burden of proof to establish that an offered position is suitable, the medical
evidence on which OWCP relies should be based on current examination findings, the medical
record, and a SOAF and clearly explain that appellant is physically capable of performing the

9

Maurissa Mack, 50 ECAB 498 (1999).

10

Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

20 C.F.R. § 10.508; see S.H., Docket No. 15-0329 (issued June 5, 2015).

12

Supra note 7.

13

Y.A., 59 ECAB 701 (2008).

14

Stephen A. Pasquale, 57 ECAB 396 (2006).

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duties of the offered position.15 The medical evidence should be clear and unequivocal that the
claimant could perform the offered employment position.16
The issue of whether a claimant is able to perform the duties of the offered employment
position is a medical one and must be resolved by probative medical evidence.17 While OWCP
found that Dr. Larabee’s opinion contained sufficient medical rationale to support that appellant
could perform the duties of the offered position,18 the Board finds his opinion lacks sufficient
rationale to meet OWCP’s burden of proof. The medical evidence of record, therefore, fails to
establish that the offered position was suitable.19
The employing establishment offered appellant a modified mail processing clerk position
on February 22, 2016 and noted that relocation expenses were authorized when the offer was
accepted. Appellant refused the position on August 1, 2016, stating that she was under pain
management and that she took hydrocodone four times daily, all due to the fractured left ankle.
As previously noted, OWCP must consider all of appellant’s conditions including
preexisting, work related, and subsequently acquired medical conditions in determining whether
a position is suitable for appellant. The record does not substantiate that OWCP considered
appellant’s lumbar disc disease or pain medications in reaching its decision. Therefore, OWCP
has not met its burden of proof in this case.20
As a penalty provision, section 8106(c)(2) must be narrowly construed. Based on the
evidence of record, the Board finds that OWCP improperly determined that the modified position
offered appellant constituted suitable work within her physical limitations and
capabilities. Consequently, OWCP did not meet its burden of proof to justify the termination of
her compensation benefits pursuant to section 8106(c)(2).
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation on October 5, 2016 pursuant to 5 U.S.C. § 8106(c).

15

See generally, E.F., Docket No. 15-0103 (issued May 12, 2015).

16

D.G., Docket No. 16-1492 (issued January 3, 2017).

17

Supra note 8.

18

Supra note 9.

19

See Patrick A. Santucci, 40 ECAB 151 (1988).

20

See H.L., Docket No. 16-1810 (issued March 16, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.21
Issued: February 13, 2018
Washington, DC

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

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

21
Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

7