United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
U.S. POSTAL SERVICE, NORTH HOUSTON
PROCESSING & DISTRIBUTION CENTER,
Houston, TX, Employer
__________________________________________

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

Docket No. 15-0165
Issued: August 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2014 appellant timely appealed the October 3, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days
elapsed between OWCP’s last merit decision of May 16, 2013 and the filing of the current
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely and failed to establish clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

The case record provided the Board includes evidence received after OWCP issued its October 3, 2014 decision.
The Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its
final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 61-year-old former mail handler, injured her lower back while lifting mail
sacks and boxes on September 21, 2002. OWCP initially accepted her claim for lumbar strain,
but subsequently expanded the claim to include lumbar intervertebral disc displacement and
psychogenic pain.3 Appellant last worked for the employing establishment in September 2003.4
She returned to work in a limited-duty capacity on September 23, 2003, but stopped work the
following day. In February 2013, appellant filed a claim for recurrence of disability (Form CA2a) beginning September 25, 2003.5
In a May 16, 2013 decision, OWCP denied appellant’s claimed recurrence of disability
beginning September 25, 2003. The decision noted that her claim had been accepted for lumbar
sprain and lumbar intervertebral disc displacement. Psychogenic pain was omitted. OWCP
denied the claim on the basis that the evidence of record failed to demonstrate that the claimed
recurrence of disability was causally related to the September 21, 2002 work injury.
Following the May 16, 2013 decision, OWCP received various medical records, which
included outpatient progress notes from A&P Pain and Wellness Center, where appellant
received therapy for both her psychological and lumbar-related orthopedic conditions.6 The
A&P progress notes covered the period May 2013 through September 2014. Dr. Orlando P.
Peccora, a Board-certified psychiatrist, oversaw appellant’s treatment at A&P. He provided
various treatment notes and reports, including narrative reports dated March 7 and 27, 2014.
Dr. Peccora indicated that appellant remained temporarily totally disabled as a direct result of her
accepted September 21, 2002 physical condition and secondary emotional condition. His multiaxial diagnoses included:
psychogenic pain disorder; major depressive disorder;
depression/anxiety; lumbar disc displacement; and lower back strain.
OWCP also received an undated report from Dr. John B. Schoonmaker, a Board-certified
psychiatrist, who had treated appellant since August 2004. Dr. Schoonmaker reported that
appellant suffered a physical injury to her back on September 21, 2002, and suffered an
aggravation of that same injury after returning to work for two days. He also reported that she
suffered an emotional injury secondary to her covered back injury. Dr. Schoonmaker had last
seen appellant on February 10, 2006. His diagnoses included: pain disorder associated with
psychological factors and a general medical condition, major depression, and chronic pain
disorder associated with appellant’s injury. Dr. Schoonmaker explained that all of the diagnoses
were directly related to the September 21, 2002 on-the-job injury, and they continued to render
appellant temporarily totally disabled.
3

Appellant’s pain disorder was initially adjudicated as a separate occupational disease claim (file number
xxxxxx925) before being accepted under claim file number xxxxxx073. OWCP combined the two claims, and
designated the September 21, 2002 traumatic injury claim (file number xxxxxx073) as the master file.
4

OWCP paid appellant wage-loss compensation for temporary total disability through September 6, 2003.

5

Appellant’s casual appointment as a mail handler expired on December 31, 2003.

6

The A&P treatment records included individual therapy notes, stress management group notes, physical
conditioning notes, massage therapy notes, and pain process group notes.

2

Appellant was also under the care of Dr. Ronnie D. Shade, a Board-certified orthopedic
surgeon. The newly submitted evidence included Dr. Shade’s reports dated March 26, May 9,
August 9, September 27, and November 8, 2013. Dr. Shade first examined appellant on
September 9, 2011. In his latest report, he indicated that she continued to require both mental
and physical medical care in order to increase her mobility, flexibility, self-esteem, confidence,
and reduce the anxiety, depression, and stress due to her September 21, 2002 work-related injury,
which had left her temporarily totally disabled.
OWCP also received a February 3, 2014 lumbar magnetic resonance imaging (MRI) scan
that revealed disc bulges at L2-3, L3-4, and L5-S1, as well as a disc herniation at L4-5.
Dr. Jeffery D. Reuben, an orthopedic surgeon, examined appellant on February 14, 2014,
and reviewed her recent lumbar MRI scan. He reported that she injured her back at work on
September 21, 2002 while lifting a heavy sack. Dr. Reuben diagnosed discogenic lumbar pain,
L4-5 disc herniation, and right lumbar radiculitis, which he attributed to appellant’s
September 21, 2002 work-related injury. He recommended a series of lumbar epidural steroid
injections, which she agreed to undergo. Dr. Reuben also submitted a February 18, 2014
attending physician’s report (Form CA-20), which noted that appellant was temporarily totally
disabled.
Dr. James F. Hood, a Board-certified orthopedic surgeon and OWCP referral physician,
examined appellant on May 28, 2014. He characterized her September 21, 2002 employment
injury as a “simple soft tissue lumbar sprain without radiculopathy,” which would have resolved
within a three-month period. Dr. Hood further reported that there were no current objective
findings that the “accepted work injuries” were active and disabling. With respect to the effects
of the September 21, 2002 lumbar sprain, he advised that appellant could return to full-duty
work.
On July 7, 2014 appellant’s then-representative filed a motion to exclude Dr. Hood’s
June 4, 2014 report. The motion also noted that there was an outstanding request for
reconsideration from May 28, 2013. OWCP replied on July 24, 2014, advising that the record
did not include a formal request for reconsideration dated May 28, 2013. It instructed
appellant’s then-representative to submit the appeal request form that accompanied the particular
decision(s) for which reconsideration was being sought.
Under cover letter dated August 13, 2014, appellant’s then-representative indicated that
the request for reconsideration was mailed on May 28, 2013, and had not since been returned.
The letter included a copy of the appeal request form from the May 16, 2013 decision.
Appellant’s reconsideration request was dated May 28, 2013.
Appellant continued to submit additional medical evidence, including a June 30, 2014
follow-up report from Dr. Reuben, a July 10, 2014 initial evaluation report from Dr. Rubin S.
Bashir, and a July 24, 2014 lumbar MRI scan. Dr. Bashir, a Board-certified orthopedic surgeon,
noted a September 21, 2002 history of injury and diagnosed psychogenic pain, lumbar sprain,
lumbar disc displacement, radiculitis, chronic low back pain, and bilateral leg pain. He advised
that appellant was temporarily totally disabled.

3

OWCP referred appellant to Dr. Frank L. Barnes, a Board-certified orthopedic surgeon.
Dr. Barnes examined appellant on August 14, 2014 and diagnosed chronic lumbar pain. He
noted there were numerous indications of symptom magnification. Dr. Barnes explained that
based on the current physical examination and a review of the medical records, there was no
evidence that appellant was unable to do her usual job. He believed appellant had recovered
from her injuries.
OWCP also received a September 6, 2014 report from Dr. Julia Franklin, a chiropractor,
who provided a low back evaluation. Dr. Franklin reported that appellant demonstrated
moderately decreased motor strength and sensation of the lower extremities. Appellant also had
palpable muscle spasms in the lumbosacral spinal regions. She was only able to walk 15 minutes
at a time on level surfaces without the use of her cane, and she could not stair climb at all.
Additionally, Dr. Franklin reported that appellant’s outcome assessments demonstrated
significant depression, an inability to relax, and severe difficulty with activities of daily living
inside and outside of the house. Lastly, she noted that appellant was limited in her social
activities due to her physical and emotional health.
In a decision dated October 3, 2014, OWCP found that appellant’s request for
reconsideration was untimely. It also found that she had not presented clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.9 When a request for reconsideration is untimely, OWCP will undertake a
limited review to determine whether the application presents clear evidence of error on the part

7

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.607.

9

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP decision for which review is sought for merit
decisions issued on or after August 29, 2011.
Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).

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of OWCP in its most recent merit decision. The application must establish, on its face, that such
decision was erroneous.10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12 A clinical psychologist may serve as a treating physician for a
work-related emotional condition.13 Additionally, chiropractors are considered physicians only
to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray.14
ANALYSIS
OWCP’s latest merit decision is dated May 16, 2013. That decision found that the
evidence of record failed to demonstrate appellant’s claimed disability beginning September 25,
2003 was causally related to the September 21, 2002 work injury. As previously noted, OWCP’s
May 16, 2013 decision did not identify psychogenic pain as an accepted condition.
On July 7, 2014 OWCP received a motion to exclude certain medical evidence from the
record. However, at the end of the motion appellant’s representative also noted that he had
previously filed a request for reconsideration (May 28, 2013), and had yet to receive a reply from
OWCP. On July 24, 2014 OWCP advised him that no record of a May 28, 2013 request for
reconsideration had been received. It inquired as to which decision(s) appellant sought
reconsideration, and further requested that corresponding appeal request form(s) be submitted.15
Appellant’s representative replied on August 13, 2014. He stated that the request for
reconsideration was mailed on May 28, 2013 to a London, KY P.O. Box, and had not been
returned as undeliverable. Appellant’s representative enclosed a copy of the appeal request form
10

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise, and explicit, and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44
ECAB 765, 770 (1993).
11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

13

See 20 C.F.R. § 10.312; Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(2) (January 2013).
14

5 U.S.C. § 8101(2); see Kathryn Haggerty, 45 ECAB 383, 389 (1994).

15

OWCP noted that the last two decisions were dated May 19, 2010 and May 16, 2013. The former expanded the
claim to include psychogenic pain, and the latter decision denied appellant’s recurrence claim.

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associated with OWCP’s May 16, 2013 decision. The form was signed by appellant and dated
May 28, 2013. OWCP received the completed appeal request form on September 2, 2014.
The record indicates that on July 7, 2014 OWCP first received notice of appellant’s
reconsideration request. However, by this time, more than a year after OWCP issued its May 16,
2013 merit decision and the request was untimely.16 Because appellant’s request was untimely,
she must demonstrate clear evidence of error by OWCP in its denial of her claimed recurrence of
disability beginning September 25, 2003.17
The October 3, 2014 decision noted that appellant submitted “[m]edical reports dated
[May 6, 2013 through September 9, 2014].” The senior claims examiner did not otherwise
identify or describe the various medical records received since OWCP’s May 16, 2013 decision.
She then concluded without explanation that the medical reports did not establish clear evidence
of error on the part of OWCP.18
An OWCP decision “shall contain findings of fact and a statement of reasons.”19 The
October 3, 2014 decision does not identify OWCP’s reason(s) for finding appellant had not
demonstrated clear evidence of error based on the newly submitted medical evidence. OWCP’s
decision should include “a brief evaluation of the evidence submitted....”20 The senior claims
examiner merely identified medical reports that fell within a particular timeframe. OWCP must
review all the evidence to determine if the clear evidence of error standard has been met.21
Because OWCP’s October 3, 2014 decision does not comply with 20 C.F.R. § 10.126, the
decision will be set aside in part. Accordingly, the case shall be remanded for a proper review of
the evidence identified above and issuance of an appropriate final decision.
CONCLUSION
OWCP properly determined that appellant’s request for reconsideration was untimely
pursuant to 20 C.F.R. § 10.607(a). As to whether appellant presented clear evidence of error,
that aspect of the case in not in posture for decision.

16

See supra note 9. Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b.
17

20 C.F.R. § 10.607(b).

18

The remainder of the October 3, 2014 decision addressed various correspondence submitted by appellant’s
then-representative, including the previous request to exclude Dr. Hood’s June 4, 2014 report.
19

20 C.F.R. § 10.126.

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5b.

21

See A.M., Docket No. 14-1351 (issued October 20, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: August 19, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
West Point, NY, Employer
__________________________________________

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

Docket No. 07-1524
Issued: November 1, 2007

Case Submitted on the Record

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

JURISDICTION
On May 14, 2007 appellant filed a timely appeal from the April 19, 2007 decision of the
Office of Workers’ Compensation Programs denying his traumatic injury claim. 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 established that he sustained an injury in the
performance of duty on December 18, 2006 as alleged.
FACTUAL HISTORY
On January 30, 2007 appellant, then a 51-year-old plumber, filed a traumatic injury
claim, Form CA-1, alleging that he slipped and fell in the back of his truck while loading
materials on December 18, 2006. He stated that he injured his back, elbow and head when he hit
a tool box. Richard Dotson, appellant’s supervisor, indicated that appellant provided notice of
the incident on the day it occurred and that he first sought treatment on January 30, 2007 from a

physician at the employing establishment. Dr. Edward J. Hartey, a chiropractor, submitted
progress notes, from February 2 to 15, 2007, which were largely illegible.
By notice dated February 22, 2007, the Office informed appellant that his claim, which
had been administratively handled until that point because there was minimal time loss from
work, would be formally adjudicated because his medical bills exceeded $1,500.00. The Office
notified appellant that he needed to submit a detailed medical report from his attending physician
to establish his claim. The Office explained that chiropractors were considered “physicians”
under the Act only to the extent that they treated spinal subluxations that had been established by
x-ray.
In a note dated February 21, 2007, Joan Thompson, an employee of Hartey Chiropractic,
stated that appellant had been diagnosed with lumbar subluxation, myalgia/myositis, lumbar
intervertebral disc radiculopathy and lumbalgia. Illegible treatment notes from February 19
to 27, 2007 were also submitted.
On March 6, 2007 the employing establishment submitted additional medical information
about appellant’s claim. On an undated accident report form appellant stated that on
December 18, 2006 he stepped into some water on the bed of his work truck and slipped, hitting
his left arm, head and back on a tool box. On a patient health questionnaire dated February 2,
2007, he indicated that he had constant, sharp, burning pain in his lower back and that his whole
back and head ached. Appellant stated that he had not had similar symptoms in the past. On a
February 2, 2007 general examination form, Dr. Hartey noted that appellant had used ice and
heat on his back following his fall, but that it never got better. Dr. Hartey indicated that x-rays
taken of appellant’s lumbosacral spine on February 2, 2007 showed moderate degenerative disc
disease and degenerative joint disease at L5-S1, reduced spacing at L5-S1, and an unnamed
problem with the posterior aspect of L4-5.
On March 12, 2007 appellant requested compensation for leave without pay taken from
February 2 to 17, 2007.
By decision dated April 19, 2007, the Office denied appellant’s claim for compensation.
It found that the medical evidence of record was insufficient to establish that he had sustained
any injury in the manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

2

In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component is whether the
incident caused a personal injury, and, generally, this can be established only by medical
evidence.3
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.4 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant,5 and must be one of reasonable medical certainty,6 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
The Office has accepted neither that the incident occurred as alleged on December 18,
2006 nor that appellant sustained an injury as a result of the alleged incident. Therefore, the
issue to be resolved is whether appellant has met the burden of establishing these elements of his
claim.
The Board has held that an employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refused by
strong or persuasive evidence.8 Appellant has consistently alleged that he slipped and fell in the
back of his truck, hitting his back, arm and head on a tool box. His supervisor stated that he was
notified of the incident the day it occurred and did not indicate that appellant’s statement of the
facts was incorrect. The employing establishment did not controvert the claim. Therefore,
contrary to the Office’s decision, the Board finds that the evidence of record establishes that the
December 18, 2006 incident occurred as alleged.
In order to establish fact of injury, appellant has the burden of showing by the weigh of
the probative medial evidence that he sustained an injury as the result of the December 18, 2006
event. The Board finds that the medical evidence of record is insufficient to establish appellant’s
claim.

3

Ellen L. Noble, 55 ECAB 530 (2004).

4

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

5

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

6

John W. Montoya, 54 ECAB 306 (2003).

7

Judy C. Rogers, 54 ECAB 693 (2003).

8

Caroline Thomas, supra note 2.

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In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under the Act.9 Section 8101(2) of the Act states that
the term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to
exist.10 Office regulations define subluxation as incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae, which must be demonstrated on
x-ray.11 Based on x-rays, Dr. Hartey, a chiropractor, provided a diagnosis of reduced
intervertebral space, among other problems, in appellant’s lumbar spine. As this diagnosis
comports with the definition of subluxation, Dr. Hartey is considered a physician under the Act
for purposes of the spinal subluxation diagnosis. However, he provided no rationalized medical
opinion evidence addressing the causal relationship between his diagnosis and the December 18,
2006 employment incident. The record establishes that appellant’s x-rays were obtained on
February 2, 2007, some six weeks following the incident at work. Dr. Hartley did not address
how appellant’s condition was caused by or contributed to by the fall at work. The Board has
held that when diagnostic testing is delayed, uncertainty mounts regarding the cause of the
diagnosed condition.12 This report is of little probative value.13 Dr. Hartey also submitted
several progress notes, but they are of no probative value because they are illegible.
Joan Thompson, an employee of Hartey Chiropractic, submitted a note listing several
diagnoses, including lumbar subluxation, myalgia or myositis, lumbar intervertebral disc
radiculopathy and lumbalgia. This note is of no probative value because there is no evidence
that Ms. Thompson is a physician under the Act.14
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed spinal subluxation was causally related to his accepted employment incident.
CONCLUSION
Though appellant has established that the December 18, 2006 incident occurred as
alleged, the Board finds that appellant has not established that he sustained an injury in the
performance of duty as a result of this accepted incident.

9

Kathryn Haggerty, 45 ECAB 383 (1994).

10

5 U.S.C. § 8101(2); John E. Cannon, 55 ECAB 585 (2004).

11

20 C.F.R. § 10.5(bb); Mary A. Ceglia, 55 ECAB 626 (2004).

12

See Mary A. Ceglia, 55 ECAB 626 (2004); Linda L. Mendenhall, 41 ECAB 532 (1990).

13

Robert Broome, 55 ECAB 339 (2004).

14

See 5 U.S.C. § 8101(2) (defining “physician”).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2007 is affirmed.
Issued: November 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 21-0597
Issued: February 7, 2022

Case Submitted on the Record

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

JURISDICTION
On March 3, 2021 appellant filed a timely appeal from a September 8, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a Board decision dated December 15, 2006, which became final 30 days after
issuance, and is not subject to further review. 1 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On February 11, 2005 appellant, then a 47-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained acute bronchitis, carbon
monoxide poisoning, silicosis, and a chronic upper respiratory condition due to factors of her
federal employment, including occupational exposures to silica dust, floor cleaning chemicals
containing ethyl compounds, and diesel exhaust fumes. She noted that she first became aware of
her conditions on January 3, 2005 and realized their relation to her federal employment on
January 20, 2005. Appellant stopped work on January 20, 2005.
Appellant submitted December 7 and 14, 2001, and March 24, 2003 employing
establishment environmental studies documenting the presence of carbon monoxide and trace
silica dust below permissible exposure limits. She also provided medical reports and diagnostic
test results dated January 6, 1999 through May 12, 2005 supporting diagnoses of chest pain,
shortness of breath, atelectasis in the base of the right lung, pharyngitis, and bronchitis. On
May 26, 2005 OWCP received a January 7, 2002 letter from the employing establishment
confirming its use of specific chemical floor cleaners. The employing establishment submitted a
June 20, 2005 statement noting that it utilized a non-alkaline floor cleaner every other day.
By decision dated June 22, 2005, OWCP accepted that appellant had been exposed to the
substances documented by the environmental studies and employing establishment statements.
However, it denied the claim, finding that the medical evidence of record was insufficient to
establish causal relationship between the accepted exposure and the claimed respiratory
conditions.
On July 18, 2005 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, held on March 30, 2006. She subsequently submitted additional
medical evidence.
By decision dated May 22, 2006, OWCP’s hearing representative affirmed the prior
decision. Appellant appealed to the Board.
By decision dated December 15, 2006, 4 the Board affirmed OWCP’s May 22, 2006
decision.
On December 19, 2008 appellant requested reconsideration.

3

Docket No. 18-1765 (issued June 11, 2019); Docket No. 17-1682 (issued January 18, 2018); Docket No. 15-1679
(issued December 14, 2015); Docket No. 12-0948 (issued November 28, 2012); Docket No. 09-2374 (issued June 17,
2010); Docket No. 06-1980 (issued December 15, 2006).
4

Id.

2

By decision dated April 3, 2009, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. Appellant
appealed to the Board.
By decision dated June 17, 2010,5 the Board affirmed OWCP’s April 3, 2009 decision.
On June 14, 2011 appellant again requested reconsideration.
By decision dated September 21, 2011, OWCP denied reconsideration, finding that
appellant’s June 14, 2011 request neither raised substantive legal questions nor included new and
relevant evidence. Appellant appealed to the Board.
By decision dated November 28, 2012,6 the Board affirmed OWCP’s September 21, 2011
nonmerit decision.
On December 2, 2013 appellant again requested reconsideration.
By decision dated February 20, 2014, OWCP denied reconsideration as the evidence
submitted did not raise substantive legal questions or include new and relevant evidence.
On February 19, 2015 appellant again requested reconsideration. She provided a
January 29, 2015 letter from Dr. Christian Altman, an anesthesiologist who had treated her on
January 20, 2005. Appellant also submitted imaging studies and test results.
In a March 9, 2015 letter, OWCP advised appellant that she could not request
reconsideration of the February 20, 2014 nonmerit decision, as her only right of appeal was to the
Board.
On April 8, 2015 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. She reiterated her allegations of malfeasance.
By decision dated June 10, 2015, OWCP denied appellant’s request for a hearing on the
February 20, 2014 decision. It found that she was not entitled to a hearing as a matter of right as
she had previously requested reconsideration. OWCP exercised its discretion and performed a
limited review of the evidence submitted following reconsideration, and further denied the hearing
request as the issue in the case would be addressed equally well by submitting new, relevant
evidence or argument accompanying a valid request f or reconsideration. Appellant appealed to
the Board.
By decision dated December 14, 2015, 7 the Board affirmed the June 10, 2015 nonmerit
decision.

5

Id.

6

Id.

7

Id.

3

On November 29, 2016 appellant again requested reconsideration. She contended that the
evidence submitted in support of her February 19, 2015 reconsideration request was new and
relevant. Appellant also argued that OWCP had failed to develop the medical evidence of record
and had not referred her for a second opinion examination.
By decision dated February 27, 2017, OWCP denied reconsideration, finding that
appellant’s arguments on reconsideration were neither new nor relevant. Appellant appealed to
the Board.
By decision dated January 18, 2018,8 the Board found that the case was not in posture for
decision as OWCP had applied an inappropriate standard of review for timely reconsideration
requests. The Board found that as appellant’s November 29, 2016 reconsideration request had not
been received by OWCP within one year of the Board’s December 15, 2006 merit decision, the
final merit decision in the claim, it was not timely filed. The Board remanded the case for OWCP
to apply the clear evidence of error standard under 20 C.F.R. § 10.607(b).
By decision dated March 30, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. Appellant
appealed to the Board.
By decision dated June 11, 2019,9 the Board affirmed OWCP’s March 30, 2018 nonmerit
decision.
On June 16, 2020 appellant again requested reconsideration. She submitted a May 27,
2020 statement alleging that the employing establishment failed to issu e an official injury report
or fully investigate her exposure to diesel fumes, and that OWCP failed to acknowledge a
December 14, 2001 report by the Department of Labor’s Occupational Safety and Health
Administration (OSHA) regarding diesel fume exposures. Appellant also argued that OWCP
should have processed her occupational disease claim as one for traumatic injury, that OWCP’s
April 30, 2006 decision failed to address a January 3, 2005 meth choline challenge test report, that
October 7, 2014 correspondence to the Secretary constituted a timely request for reconsideration,
that all of her requests for reconsideration were timely under the Board’s holding in Eleanor
Bozzacco,10 and that the employing establishment’s failure to provide a detailed statement
regarding her allegations warranted a remand of her claim for additional development and a
de novo decision under the Board’s holding in K.K.11
By decision dated September 8, 2020, OWCP denied appellant’s June 16, 2020
reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence
of error.

8

Id.

9

Id.

10

Docket No. 99-1745 (issued September 11, 2000).

11

Docket No. 11-1374 (issued January 4, 2012).

4

LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought. 12 Timeliness is determined by the document receipt date of
the request for reconsideration as is indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). 13 The Board has found that the imposition of the
one-year time limitation does not constitute an abuse of the discretionary authority granted to
OWCP under section 8128(a) of FECA. 14
OWCP may not deny a request for reconsideration solely because it was untime ly filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error. 15 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP. 16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error. 17 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. 18 This entails a limited review by
OWCP of how the evidence submitted with the reconsideration request bears on the evidence
previously of record and whether the new evidence demonstrates clear evidence of error on the
part of OWCP.19 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in
denying merit review in the face of such evidence. 20
OWCP’s procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. 21 The claimant must present evidence that on its face shows that
12

20 C.F.R. § 10.607(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (September 2020).

14

G.L., Docket No. 18-0852 (issued January 14, 2020).

15

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

16

Id.; supra note 13 at Chapter 2.1602.5(a).

17

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

19

B.W., supra note 17.

20

Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

21

Supra note 13 at Chapter 2.1602.5(b).

5

OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence
such as a detailed, well-rationalized medical report that, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error. 22
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation. 23 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons. 24 The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it. 25
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was issued on December 15, 2006. As appellant’s request for
reconsideration was not received by OWCP until June 16, 2020, more than one-year after the most
recent merit decision, pursuant to 20 C.F.R. § 10.607(a), the Board finds that the request for
reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of
error by OWCP in denying the claim. 26
The Board further finds that, in its September 8, 2020 decision, OWCP failed to make
findings regarding the arguments and evidence submitted in support of appellant’s untimely
reconsideration request. 27 In its September 8, 2020 decision, it summarily denied appellant’s
request for reconsideration without analyzing whether it was sufficient to demonstrate clear
evidence of error. 28 The September 8, 2020 decision simply noted that appellant’s statement
presented “previously submitted arguments considered under prior decisions.” OWCP did not
provide any discussion regarding the basis for its decision, nor did it address the arguments made

22

G.B., supra note 18; A.R., Docket No. 15-1598 (issued December 7, 2015).

23

5 U.S.C. § 8124(a).

24

20 C.F.R. § 10.126.

25
C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); supra
note 13 at Chapter 2.1400.5 (all decisions should contain findings of fact sufficient to identify the benefit being denied
and the reason for the disallowance).
26

20 C.F.R. § 10.607(a).

27

See K.D., Docket No. 20-1186 (issued February 3, 2021).

28

M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020).

6

by appellant in her May 27, 2020 reconsideration request. 29 Thus, the Board finds that OWCP did
not comply with the review requirements of FECA and its implementing regulations. 30
Accordingly, appellant could not understand the precise defect of the claim, i.e., whether she had
demonstrated clear evidence that the last merit decision was incorrect, and the kind of evidence
which would overcome it. 31
The Board will therefore set aside OWCP’s September 8, 2020 decision and remand the
case for an appropriate decision which contains findings of fact and a statement of reasons
regarding appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 7, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
29

T.J., Docket No. 21-0586 (issued September 30, 2021); T.N., Docket No. 21-0274 (issued July 9, 2021); see
Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued
September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).
30

Supra notes 25 and 26.

31

Supra note 13 at Chapter 2.1400.5.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Hines, OR,
Employer
__________________________________________

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Appearances:
Gordon Reisett, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1108
Issued: April 16, 2009

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant, through counsel, filed a timely appeal from a nonmerit
decision of the Office of Workers’ Compensation Programs dated February 21, 2008 denying his
untimely request for reconsideration and finding that it failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated June 27, 2001 and
the filing of this appeal on March 4, 2008, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), but has jurisdiction over the
nonmerit issue.
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

FACTUAL HISTORY
On October 5, 1984 appellant, then a 30-year-old seasonal fire fighter, filed a traumatic
injury claim alleging that he injured his back and hip on October 3, 1984 when he fell after his
foot got caught on the brush. The Office accepted the claim for a low back strain which was
subsequently expanded to include the consequential condition of depression. Appellant stopped
work on October 4, 1984 and returned to work on April 1, 1985 and resigned from the
employment on October 11, 1985. By letter dated July 7, 1986, the Office placed appellant on
the periodic rolls for temporary total disability.1
In a letter dated May 11, 2001, the Office informed appellant that it proposed to reduce
his benefits based upon his ability to earn wages as an administrative clerk. By decision dated
June 27, 2001, it finalized the proposal and reduced appellant’s compensation to reflect his
wage-earning capacity in the position of administrative clerk.
In a letter dated March 12, 2007, appellant’s counsel requested modification of the
June 27, 2001 loss of wage-earning capacity decision. He contended that the June 21, 2007
decision had been erroneously issued as the Office did not consider the impact of the
medications appellant took for his pain or his depression in finding that appellant was capable of
performing the duties of the constructed position of administrative clerk. In addition, appellant
contends that his condition has materially changed such that he is unable to perform the duties of
the constructed position. He notes that his back condition has worsened to include his lower
right back and “he has had increasing bouts of severe depression and suicidal ideation.”
Appellant also submitted medical and factual evidence in support of his request for modification
of the wage-earning capacity decision.
By letters dated June 1 and August 1, 2007, appellant’s counsel again requested
modification of the June 27, 2001 loss of wage-earning capacity decision. Appellant contended
that at the time the loss of wage-earning capacity decision was issued the Office had failed to
meet its burden. Appellant’s counsel also noted that he had requested modification in a letter
dated March 12, 2007 and submitted medical evidence with his request and subsequently.
In an August 27, 2007 letter, appellant’s counsel argued that the original loss of wageearning capacity decision was in error as the Office failed to consider appellant’s psychological
condition.
On October 22, 2007 the Office responded to appellant’s letters and informed him that
his only option was to file a request for reconsideration which would be evaluated under the clear
evidence of error standard as the request was more than a year after the June 27, 2001 loss of
wage-earning capacity decision.
In a letter dated October 30, 2007, appellant’s counsel requested reconsideration and
argued that the June 27, 2001 decision was issued in error.

1

The Office issued an amended letter on September 15, 1989 to increase the percentage of appellant’s rate of pay
due to his marriage.

2

By decision dated February 21, 2008, the Office denied appellant’s request for
reconsideration without a merit review, finding that appellant had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error. It stated that appellant was required to present evidence which showed that
the Office made an error and that there was no evidence submitted that showed that the June 21,
2008 loss of wage-earning decision was in error.2
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.3 The burden of proof is on the party attempting to show modification.4 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.5
ANALYSIS
The Office considered appellant’s October 22, 2007 correspondence as a request for
reconsideration of the June 27, 2001 wage-earning capacity determination under 5 U.S.C.
§ 8128(a). It found the request untimely and that appellant did not submit relevant evidence or
legal argument establishing clear evidence of error. Appellant’s counsel had previously
requested modification of the June 21, 2001 loss of wage-earning capacity in letters dated
March 12, June 1, August 1 and 27, 2007. In an October 22, 2007 letter, the Office informed
appellant that he should file a request for reconsideration as the record did not contain medical
evidence from a psychologist or psychiatrist stating appellant was unable to perform the
administrative clerk position. In October 30, 2007 correspondence, appellant used the term
reconsideration as instructed by the Office in its October 22, 2007 letter. He again reasserted
that the Office erred in its June 21, 2001 wage-earning capacity determination as the Office
failed to consider his accepted psychological condition in determining that the position of
2

The Board notes that, following the February 21, 2008 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); J.T., 59 ECAB ___
(Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued
February 27, 2007). Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007); Katherine T. Kreger, 55 ECAB 633
(2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra McCauley, 51 ECAB 375 (2000).
4

P.C., 58 ECAB ___ (Docket No. 06-1954, issued March 6, 2007); Darletha Coleman, 55 ECAB 143 (2003).

5

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005),
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that the
claimants requests for reconsideration of a wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside the Office’s decisions denying appellants
reconsideration requests as untimely and remanded the cases for the Office to address the merits of their requests for
modification of a loss of wage-earning capacity decision).

3

administrative clerk represented his wage-earning capacity. The Board finds that appellant’s
October 30, 2007 letter is a request for modification of the Office’s June 27, 2001 wage-earning
capacity determination.6 This request for modification is not a request for a review of the
June 21, 2001 decision under 5 U.S.C. § 8128(a). Appellant had previously requested the Office
to consider modification of the June 21, 2001 loss of wage-earning capacity in letters dated
March 12, June 1, August 1 and 27, 2007. The Office did not issue a decision on appellant’s
request, but instead advised him to file a request for reconsideration. Therefore, the Board finds
that the Office incorrectly characterized appellant’s October 22, 2007 letter as a request for
reconsideration subject to the one-year time limitation set forth at 20 C.F.R. § 10.607(a).
The Board finds that appellant has requested modification of the June 27, 2001 wageearning capacity determination. Appellant is entitled to a decision on that issue.7 On remand,
the Office shall adjudicate appellant’s request for modification of the wage-earning capacity
determination and issue an appropriate decision in the case.
CONCLUSION
The Board finds that appellant requested modification of the June 27, 2001 wage-earning
capacity determination and is entitled to a decision on the wage-earning capacity issue. The case
will be remanded to the Office for an appropriate decision.

6

See Gary L. Moreland, supra note 5.

7

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 21, 2008 is set aside and the case remanded for further
action consistent with this decision.
Issued: April 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Miami, FL, Employer
__________________________________________

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

Docket No. 09-1381
Issued: May 18, 2010

Case Submitted on the Record

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

JURISDICTION
On May 5, 2009 appellant filed a timely appeal from the February 12, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of his
wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his 2004 wageearning capacity determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. In a September 5, 2003 decision, the
Board found that the Office did not meet its burden of proof to terminate appellant’s

compensation benefits under section 8106(c)(2) based on his refusal of suitable work.1 The
Board determined that the Office had not adequately evaluated appellant’s reasons for refusing
the offered position prior to terminating benefits. The facts of the claim as set forth in the
Board’s prior decision are incorporated herein by reference.
Appellant subsequently elected benefits under the Federal Employees’ Compensation Act
and he was referred for vocational rehabilitation to assist with job placement.2 On December 5,
2003 the rehabilitation counselor noted that appellant had transferable skills to work as an
information clerk, Dictionary of Occupational Titles No. 237.367-022. However, appellant did
not cooperate with rehabilitation efforts and his compensation was reduced to zero as of
March 22, 2004 in an interrupted status. He was advised that his file would be closed if he did
not contact vocational rehabilitation by May 22, 2004.
The vocational rehabilitation counselor proceeded to develop the issue of appellant’s
wage-earning capacity, noting that as of April 16, 2004 the position of information clerk was
available in sufficient numbers so as to make it reasonably available to appellant within his
commuting area as confirmed by the Georgia state employment service representative. The
position was described as sedentary with no exposure to weather or proximity to moving
mechanical parts at a weekly wage of $260.00 to $280.00. The vocational rehabilitation
counselor noted that the position was within the work restrictions recommended by Dr. Tsai.3 In
April 2004, she contacted potential employers and, based on her contact with the state labor
career center, confirmed an entry salary range of $6.50 to $7.00 an hour. The vocational
rehabilitation counselor noted that appellant would not agree to a meeting. As of May 22, 2004,
appellant did not contact the vocational rehabilitation counselor. On June 10, 2004 the
vocational rehabilitation counselor again confirmed the availability of the information clerk
position on a full-time and part-time basis and the salary range. She noted that the position
involved a three- to six-month vocational preparation period.
In a July 9, 2004 decision, the Office reduced appellant’s benefits effective July 11, 2004
on the grounds that he had a 53 percent wage-earning capacity in the constructed position of
information clerk. It noted that appellant resubmitted a copy of a June 22, 2000 office note from

1

Docket No. 02-2306 (issued September 5, 2003). On March 30, 1982 appellant, a 33-year-old purchasing agent,
sustained injury when automatic doors closed and struck him in the back. The Office accepted that he sustained a
low back contusion and sprain, a herniated disc at L5-S1 and lumbar disc displacement. Appellant underwent a
lumbar laminectomy in May 1982. On January 17, 1983 he sustained injury to his cervical spine and a left knee
contusion when his motor vehicle overturned.
2

The Office noted it was developing a placement plan based on medical evidence concerning appellant’s capacity
for work from Dr. Stella I. Tsai, a Board-certified neurologist and impartial medical specialist, who advised that he
was capable of full-time sedentary activity with weight restrictions, allowed frequent breaks and no driving or
operating dangerous equipment.
3

The Office received several handwritten treatment notes from Dr. Jeffrey A. Fried, a physician, dated March 14,
2002 to January 31, 2004. Dr. Fried did not address appellant’s work restrictions or capacity for work. In a brief
September 3, 2003 note, Dr. Frank S. Matovu, a family practitioner, stated that appellant was totally disabled and
unable to do any type of work even at sedentary level. He did not set forth any findings based on examination of
appellant or explain the basis for his statement.

2

Dr. Harvey A. Jones, an attending general surgeon; however, the weight of medical opinion was
represented by Dr. Tsai, the impartial medical specialist.4
Appellant subsequently requested a hearing before an Office hearing representative that
was held on May 25, 2005. He contended that he did not have the physical capacity to perform
the duties of the selected position.
In a September 19, 2005 decision, an Office hearing representative affirmed the July 9,
2004 wage-earning capacity determination. He found that the weight of medical opinion was
represented by the report of the impartial medical specialist.
On September 18, 2006 appellant requested reconsideration, again contending that he
lacked the capacity to perform the duties of the selected position. He submitted a July 10, 2006
treatment note and September 4 and 12, 2006 functional capacity questionnaires from Dr. Fried
and an August 24, 2006 functional capacity questionnaire from Dr. Jones.
In a February 20, 2008 decision, the Office denied modification of the 2004 wageearning capacity determination. It found that the treatment note of Dr. Fried failed to set forth
any findings on examination or provide a firm medical diagnosis, noting only that appellant was
unable to work. The questionnaires submitted by the physicians checked boxes pertaining to a
pre-hearing procedure before the Social Security Administration. No medical rationale was
provided for the opinions expressed on the forms or addressed how the specific conditions
accepted by the Office had materially changed or disabled appellant from performing the duties
of the constructed position.
On August 29, 2008 appellant requested reconsideration. In a June 5, 2008 report,
Dr. Jones stated that from 2002 through 2004 he took a leave of absence from his practice and
that appellant went without consistent medical care. Once he returned to practice, appellant
resumed treatment and should not be found at fault for not being seen during the interval. In an
August 2, 2008 treatment note, Dr. Fried provided a review of appellant’s treatment for
degenerative arthritis of the lumbar spine. He advised that appellant could not do significant
bending, twisting or stooping, any kneeling, crawling or squatting and should avoid pushing and
pulling, with lifting limited to about 10 pounds. Dr. Fried noted that appellant continued to be
overweight and had hypertension and gouty arthritis. He stated: “The patient is basically
disabled at this time from being employed in the economy.” In a July 16, 2008 note,
Dr. Dwayne L. Clay, Board-certified in physical medicine and rehabilitation, stated that
appellant had been disabled since 1983 and was unable to do any type of work including light
sedentary work. In a June 27, 2005 treatment note, Dr. Patrick J. Fernicola stated that appellant
was seen in follow-up for a total left knee arthroplasty and right knee arthroscopy six days prior.
He addressed the nature of the wounds and found no evidence of infection.5

4

The record reflects that appellant elected OPM benefits as of July 11, 2004. The Office subsequently
determined that he was in receipt of dual monetary benefits under the Act and from the Veterans Administration. As
appellant did not respond to letters requesting that he make an election of benefits, any compensation payable for
loss of wage-earning capacity was suspended as of August 20, 2004.
5

Appellant resubmitted treatment records of his hospitalization from December 4, 2003 to January 6, 2004 at a
VA medical center for degenerative joint disease and therapy services.

3

In a February 12, 2009 decision, the Office denied modification of the 2004 wageearning capacity determination. It found that the evidence submitted did not establish that he
was unable to perform the duties of the selected position. The medical evidence was found
insufficient to establish that residuals of appellant’s accepted conditions had materially changed
or prevented him from performing the duties of an information clerk.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such determination
is not warranted unless there is a material change in the nature and extent of the injury-related
conditions, the employee has been retrained or otherwise vocationally rehabilitated, or the
original determination was, in fact, erroneous. The burden of proof is on the party attempting to
show that the wage-earning capacity decision should be modified.6 When a formal wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In such instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity determination.7
ANALYSIS
Appellant’s claim was accepted by the Office for a low back contusion and sprain,
herniated disc at L5-S1 for which he underwent a lumbar laminectomy in 1982 and for injury to
his cervical spine and a left knee contusion. The Board previously found that the report of
Dr. Tsai, a Board-certified neurologist selected as the impartial medical specialist, constituted the
weight of medical opinion and established that he had the physical capacity for full time
sedentary work within specified restrictions. Based on her opinion, an Office rehabilitation
counselor determined that appellant had the capacity to perform the duties of an information
clerk. The duties of the position include answering inquiries from persons entering the
establishment, providing information concerning location of departments, offices or employees
within the organization and informing customers of location of merchandise or concerning
available services. The position was described as sedentary and performed indoors with no
exposure to weather or proximity to moving mechanical parts. The rehabilitation counselor
noted that appellant’s prior employment and experience as a purchasing agent met the specific
vocational preparation with a three- to six-month training period. She contacted the state
employment services office to determine that the position was performed in sufficient numbers
so as to be reasonably available to appellant in his commuting area. The state labor career office
confirmed an entry salary of $6.50 an hour.8
It is well established that, when the Office makes a medical determination that a recipient
of compensation is partially disabled and has specific work limitations, it may refer the case to a
vocational rehabilitation counselor for selection of a position that fits the employee’s
6

See Sharon C. Clement, 55 ECAB 552 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

7

See Katherine T. Kreger, 55 ECAB 633 (2004).

8

The rehabilitation specialist is recognized as an expert in the field of vocational rehabilitation and the Office
may rely on his or her opinion as to whether a job is reasonably available and vocationally suitable. See
Lawrence D. Price, 54 ECAB 590 (2003).

4

capabilities.9 When vocational rehabilitation efforts are unsuccessful, the counselor will submit
a closure report to the Office with a listing of two to three jobs which are medically and
vocationally suitable for the employee and set forth information from a labor market survey as to
the availability of the positions and wage rate.10 The record reflects that appellant refused to
meet with the vocational rehabilitation counselor. Based on the evidence of record, she
proceeded to prepare a closure report which found that he had the vocational and medical
capacity to perform the sedentary duties of an information clerk and that such positions were
reasonably available within the general labor market of his commuting area.11
Appellant contested the suitability of the information clerk position and submitted a copy
of a June 22, 2000 report of Dr. Jones, an attending surgeon. As noted in the Board’s prior
decision, the Office found a conflict in medical opinion between Dr. Jones and an Office referral
physician which necessitated the selection of an impartial medical specialist. At the time of the
July 9, 2004 decision, the weight of medical opinion was represented by the report of Dr. Tsai
which established that the selected position was suitable to appellant’s physical capacity.12
Appellant has not established that the July 9, 2004 decision was erroneous.
In support of his request for modification of the wage-earning capacity determination,
appellant submitted a July 10, 2006 note from Dr. Fried and functional capacity questionnaires
from Dr. Fried and Dr. Jones. The Board notes that this evidence does not provide any
rationalized medical opinion from either physician explaining how appellant’s accepted
conditions materially changed such that he could no longer perform the duties of the selected
position. The questionnaires provided check marked answers to questions pertaining to a Social
Security proceeding and the treatment note of Dr. Fried did not provide any findings based on
physical examination or explanation of how appellant was disabled from performing the
sedentary duties of an information clerk. This evidence does not have a direct bearing to the
wage-earning capacity determination and is of reduced probative value.13 Similarly, the June 5,
2008 report of Dr. Jones explained his leave of absence from 2002 to 2004. This evidence is not
relevant as it does not address the information clerk position or how appellant’s condition had
materially changed such that he no longer could perform the sedentary duties. On August 2,
2008 Dr. Fried reviewed appellant’s treatment for degenerative arthritis of the lumbar spine,
noting limitations on certain activities requiring bending, twisting, stooping, kneeling, crawling
or squatting. His opinion that appellant was “basically disabled” is not well rationalized or
explained with reference to the selected position. Appellant submitted treatment records from
Dr. Clay together with a brief July 16, 2008 note that stated appellant had been disabled since
1983 and unable to do any type of work, including light sedentary duty. This report is
insufficient to establish a material change in appellant’s accepted conditions warranting
modification of the 2004 wage-earning capacity determination. Dr. Clay’s opinion does not
9

Richard Alexander, 48 ECAB 432 (1997).

10

See Sylvia Birdcut, 48 ECAB 162 (1996); Philip S. Deering, 47 ECAB 692 (1996).

11

Where vocational rehabilitation efforts to not succeed, the employee’s wage-earning capacity must be
determined on the basis of a position deemed suitable but not actually held. Roberta R. Moncrief, 52 ECAB
418 (2001).
12

See Carl C. Green, Jr., 47 ECAB 737 (1996).

13

See Barry C. Petterson, 52 ECAB 120 (2000); Lester Covington, 47 ECAB 539 (1996).

5

address the duties of the selected position, the medical history of the case, or explain how
residuals of the conditions accepted by the Office caused disability as of his examination in
April 2008.14 The report of Dr. Fernicola addressed appellant’s knee wounds following surgery
in 2005. He did not address the relevant issue of appellant’s capacity for work as an information
clerk or how appellant’s surgeries or disability related to the accepted conditions in this case.
For these reasons, appellant has not established that the 2004 wage-earning capacity
determination should be modified.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that
modification of his wage-earning capacity determination was warranted.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 18, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

Where residuals of an accepted employment-related condition prevent an employee form performing regular
duties, physical ailments that preexisted the accepted condition must be taken into consideration. Physical ailments
acquired subsequent to and unrelated to the accepted injury and excluded from any wage-earning capacity
determination. Lee A. Dent, 54 ECAB 704 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lithia Springs, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1345
Issued: August 23, 2016

Case Submitted on the Record

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

JURISDICTION
On June 2, 2015 appellant filed a timely appeal from a December 9, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury causally
related to factors of her federal employment.
FACTUAL HISTORY
On March 13, 2014 appellant, then a 57-year-old mail carrier, filed a Form CA-2
occupational disease claim under File No. xxxxxx080, the instant claim, alleging that she first
became aware of her lower back injury and realized that it was caused or aggravated by her
1

5 U.S.C. § 8101 et seq.

federal employment on February 19, 2013.2 She stated that she experienced bad pain in her
lower back at work. Appellant left work shortly thereafter, as it was time for her shift to end.
She stated that she went home over the holiday weekend and her pain worsened. Appellant had
to wait until the following Tuesday, February 19, 2013 to call her doctor. She reported that she
had pain in her lower back shooting into her buttock and down the right side of her leg.
Appellant stopped work on February 19, 2013.
Appellant submitted a pay slip and job descriptions of her rural carrier position.
In a March 20, 2014 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It asked her to submit factual and medical evidence, including
a detailed description of the employment-related activities that she believed contributed to her
claimed medical condition, how often she performed the described activities, and a physician’s
opinion explaining how her federal work activities caused, contributed to, or aggravated her
medical condition. OWCP also asked the employing establishment to respond to appellant’s
allegations and submit medical evidence, if she had been treated at its medical facility. Both
appellant and the employing establishment were afforded 30 days to submit the requested
information.
Appellant submitted a November 16, 2011 job offer from the employing establishment
for a modified rural carrier position she had accepted on November 17, 2011. The job offer
referenced her claim under File No. xxxxxx231 for a previous injury sustained on
August 10, 2011.
In an April 5, 2014 correspondence, the employing establishment submitted appellant’s
job description and reported that her last day of work was February 18, 2013.
In an April 22, 2014 decision, OWCP denied appellant’s occupational disease claim. It
accepted that the injury or event(s) occurred as described, but she submitted no medical evidence
containing a medical diagnosis in connection with the injury.
On May 19, 2014 appellant requested a review of the written record by the hearing
representative.
Progress notes were submitted from Dr. Eric Francke, an orthopedist, dated September 5
and October 10, 2013 and January 3 and August 6, 2014 that addressed appellant’s lumbar and
cervical conditions, and medical treatment related to injuries from a February 25, 2011
employment-related motor vehicle accident under File No. xxxxxx361, a previously accepted
claim for cervical and lumbar strains.

2

Prior to the instant claim, OWCP accepted that on June 11, 2009 appellant sustained right shoulder and neck
injuries under File No. xxxxxx310. Subsequently, it accepted that on January 8, 2010 she sustained employmentrelated right knee and right hip conditions under File No. xxxxxx895. OWCP accepted that appellant sustained neck
and lumbar sprains on February 25, 2011 under File No. xxxxxx361. It denied her claim for a recurrence of total
disability as of February 19, 2013 under File No. xxxxxx361. On February 25, 2014 OWCP expanded the
acceptance of appellant’s claim under File No. xxxxxx361 to include lumbar radiculitis and displaced lumbar
intervertebral discs at L4-5 and L4-S1 without myelopathy.

2

In a July 28, 2014 attending physician’s report (Form CA-20), Dr. Mary F. Dailey-Smith,
a Board-certified family practitioner, provided a history of injury that on February 19, 2013
appellant sustained a severe neck injury. She stated that appellant was injured in a motor vehicle
accident that caused severe headaches and cervical radiculitis and neuropathy. Dr. Dailey-Smith
noted that appellant had been on light duty since 2009 due to back pain. She diagnosed bilateral
cervical radiculitis and neuropathy, and herniated nucleus pulposus. Dr. Dailey-Smith indicated
with an affirmative mark that the diagnosed conditions were caused or aggravated by an
employment activity. She explained that appellant was riding in a motor vehicle and was hit by a
car. In a July 28, 2014 progress note, Dr. Dailey-Smith provided appellant’s medical, family,
and social history. She reported examination findings and assessed appellant as having, among
other things, radiculitis, cervical arthritis, whiplash neck injury, and neuropathy. In a July 28,
2014 attending physician’s report Form CA -20, Dr. Dailey-Smith reported that the appellant
suffered bilateral cervical radiculitis and neuropathy, and herniated nucleus pulposus due to her
injuries in a motor vehicle accident on February 19, 2013. She indicated work restrictions
including no lifting, no bending, and no prolonged standing.
In reports dated May 1, 9, and 12, 2014, Nancy E. Sherrington, a physical therapist,
addressed the treatment of appellant’s neck conditions.
In a January 13, 2014 letter, the employing establishment denied appellant’s request for
reasonable accommodation. It could not accommodate her treating physician’s December 3,
2013 medical restrictions.
In a December 9, 2014 decision, the hearing representative affirmed as modified the
April 22, 2014 decision. She found that OWCP did not explain what exposure it accepted as
factual. In addition, appellant did not identify the employment factors that she attributed to her
claimed medical condition or respond to OWCP’s March 20, 2014 letter.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
3

Id.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

3

existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which she believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.8
ANALYSIS
The Board finds that appellant has failed to establish an injury causally related to factors
of her federal employment. Appellant’s claim form generally stated that she experienced back
pain at work. She did not identify any specific employment factors that she believed caused her
claimed back condition.
On March 20, 2014 OWCP informed appellant that the evidence received to date was
insufficient to establish that she experienced any employment factors that were alleged to have
caused an injury. Appellant was asked to provide a detailed description of the employmentrelated activities she believed contributed to her condition and how often she performed the
described activities. OWCP afforded her 30 days to submit this additional evidence. Appellant
did not provide any statement responding to OWCP’s inquiry. Dr. Dailey-Smith’s July 28, 2014
Form CA-20 report found that appellant sustained bilateral cervical radiculitis and neuropathy,
and herniated nucleus pulposus due to a February 19, 2013 employment-related motor vehicle
accident. Because appellant failed to identify specific work duties or activities alleged to have
caused her claimed back condition, Dr. Dailey-Smith’s diagnoses and opinion on causal
relationship are not based on a complete background of appellant’s history. The opinion of the
physician must be based on a complete factual and medical background, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific compensable employment
factors identified by the employee.9

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Penelope C. Owens, 54 ECAB 684 (2003); Effie O. Morris, 44 ECAB 470, 473-74 (1993); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4(a) (June 2011) (in
occupational disease cases, the claimant must submit sufficient evidence to identify fully the particular work
conditions alleged to have caused the disease and substantiate exposure to the conditions claimed).
9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 6 at 351-52.

4

The Board finds that appellant has not sufficiently identified employment activities
alleged to have caused or contributed to her claimed back condition to meet her burden of
proof.10
As appellant has not established the factual component of her claim, the Board will not
address the medical evidence with respect to causal relationship.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back injury
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2016
Washington, DC

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

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

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

10

R.Z., Docket No. 13-1911 (issued September 15, 2014).

11

D.D., 57 ECAB 734 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE,
)
U.S. NATIONAL ABORETUM, Washington, DC, )
Employer
)
__________________________________________ )
J.B., Appellant

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

Docket No. 11-2005
Issued: July 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 9, 2011 appellant filed a timely appeal of the April 26, 2011 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $17,285.42 because
OWCP did not deduct premiums for health benefits for the period June 16, 2002 through
January 19, 2008; (2) whether he was at fault in the creation of the $17,285.42 overpayment and,
therefore, ineligible for waiver of the recovery; and (3) whether OWCP properly ordered him to
repay the overpayment in full.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board. On January 13, 2009 the
Board issued an order remanding case.2 The Board set aside an OWCP decision dated April 1,
2008 in which OWCP exercised its discretion in finding that as appellant’s accepted
February 10, 1958 employment injury occurred before enactment of the July 4, 1966
amendments, he was not entitled to a hearing or review of the written record as a matter of right.
The Board found that appellant timely and properly requested a prerecoupment hearing under
section 8129 of FECA following a February 12, 2008 preliminary finding of an overpayment and
OWCP’s Branch of Hearings and Review improperly treated this request as a request for an oral
hearing under section 8124 of FECA. On remand, the Branch of Hearings and Review was
instructed to schedule and conduct a prerecoupment hearing regarding the preliminary
overpayment determination and issue an appropriate decision. In an order remanding case dated
September 24, 2010, the Board set aside a June 30, 2009 OWCP decision finding that appellant
had abandoned a hearing.3 The Board found that the record did not establish that he was
properly notified of the scheduled hearing regarding the February 12, 2008 preliminary
determination of overpayment. The Board remanded the case for OWCP to schedule a hearing
before an OWCP hearing representative with proper notice provided to appellant. The facts and
history relevant to the present appeal are hereafter set forth.
OWCP accepted that on February 10, 1958 appellant, then a 30-year-old janitor,
sustained a contusion of the first sacral nerve root while in the performance of duty.
On February 12, 2008 OWCP issued a preliminary determination, finding that appellant
received an overpayment of compensation in the amount of $17,285.42 from June 16, 2002
through January 19, 2008 because premiums for health benefits were not deducted from his
compensation for this period. He was found at fault in the creation of the overpayment because
he should have known that he was covered by health insurance, but was not paying for such
coverage. OWCP requested that appellant complete an enclosed overpayment recovery
questionnaire and submit supporting financial documents. It 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.
Federal Employees’ Health Benefits (FEHB) forms showed that appellant was enrolled
under code number 105. An overpayment worksheet indicates that deductions for his health
insurance for code 105 from June 16, 2002 through January 19, 2008 were not made for the
stated period.
On February 25, 2008 and September 10, 2009 appellant contended that he was not at
fault in creating the overpayment and requested waiver. He contended that OWCP was at fault
in creating the overpayment. Appellant attributed his worsening pain and undue financial
hardship to his accepted employment injury.

2

Docket No. 08-1429 (issued January 13, 2009).

3

Docket No. 10-167 (issued September 24, 2010).

2

Following the issuance of the Board’s September 24, 2010 order remanding case, OWCP,
in an October 4, 2010 letter, informed appellant that a prerecoupment hearing was scheduled at
3:15 p.m. on November 15, 2010.
On November 24, 2010 appellant completed the overpayment questionnaire. He reported
monthly income of $862.88 which included $368.88 in OWCP compensation. Appellant also
reported monthly expenses in the amount of $3,268.60. He owed an additional $20,063.66 in
medical expenses. Appellant had $100.00 in a checking account.
The November 15, 2010 hearing was not held. Instead, a telephone hearing was held on
December 20, 2010. During the hearing, appellant stated that OWCP was deducting $300.00
from his compensation benefits in repayment of the outstanding $17,285.42 overpayment.4
In an April 26, 2011 decision, an OWCP hearing representative finalized the preliminary
overpayment determination. He found that appellant received an overpayment of $17,285.42 for
the period June 16, 2002 through January 19, 2008 and he was with fault in creation of the
overpayment, thus precluding waiver of recovery of the overpayment.
The hearing
representative found that the factual evidence established that appellant was advised by
statements that his health benefits comprised a portion of his monthly deductions. He noted that
such deductions were not reflected on appellant’s statements during the period in question and
that he certainly would have seen a change in his monthly compensation received during this
period. The hearing representative ordered OWCP to cease deducting $300.00 from appellant’s
compensation for repayment of the overpayment. He determined that since appellant’s monthly
expenses exceeded his monthly income by $1,353.64 which included cessation of the $300.00
deduction made by OWCP, a reasonable repayment plan could not be established. Thus, the
hearing representative ordered appellant to repay the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5
The Office of Personnel Management (OPM), rather than OWCP, has jurisdiction over
the matter of health insurance deductions from compensation, and over enrollment under the
FEHB.6 OPM regulations provide guidelines for the registration, enrollment and continuation of
enrollment for federal employees. In this connection, section 890.502(a)(1) provides that an
employee or annuitant is responsible for payment of the employee’s share of the cost of
enrollment for every pay period during which the enrollment continues. In each pay period for
which health benefits withholdings or direct premium payments are not made but during which
4

The Board notes that OWCP, by letter dated August 28, 2009, advised appellant that it would deduct $300.00
from his continuing compensation since he had not submitted a payment or indicated that he intended to repay the
$17,285.42 overpayment as finalized in its April 24, 2008 decision.
5

5 U.S.C. § 8102(a).

6

Raymond C. Beyer, 50 ECAB 164 (1998).

3

the enrollment of an employee or annuitant continues, he or she incurs an indebtedness due to the
United States in the amount of the proper employee withholding required for that pay period.7 In
addition, section 890.502(c)(1) provides that an agency that withholds less than or none of the
proper health benefits contributions from an individual’s pay, annuity or compensation must
submit an amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of Title 5 of the United States Code, to OPM for
deposit in the Employees’ Health Benefits Fund.8 When OWCP deducts less than the proper
health benefit premium for the coverage selected, an overpayment in compensation is created.9
The Board has recognized that, when an underwithholding of health insurance premiums is
discovered, the entire amount is deemed an overpayment in compensation because OWCP must
pay the full premium to OPM when the error is discovered.
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $17,285.42 from June 16, 2002 to January 19, 2008. The record supports that, for the stated
period, OWCP did not make deductions from appellant’s FECA benefits for his enrollment in
FEHB code 105. OWCP established that the premium for health insurance code 105 for this
period was $17,285.42. There is no evidence that appellant waived coverage. When an
underwithholding of this premium is discovered, the entire amount is deemed an overpayment in
compensation because OWCP must pay the full amount of the premium to OPM when the error
is discovered.10 The Board finds, therefore, that OWCP should have deducted health benefit
premiums as he had elected enrollment and premiums were not deducted. This omission created
an overpayment in compensation in the amount of $17,285.42. The Board finds, therefore, that
OWCP properly determined that appellant received a $17,285.42 overpayment for the stated
period.
LEGAL PRECEDENT -- ISSUE 2
An individual who is found at fault in either accepting or creating an overpayment is not
eligible for a waiver of recovery of overpayment.11 A benefits recipient will be at fault if the
individual: (1) made an incorrect statement as to a material fact which he knew or should have
known to be incorrect; (2) failed to provide information which he knew or should have known to
be material; or (3) accepted a payment which he knew or should have known to be incorrect.12

7

5 C.F.R. § 890.502(a)(1).

8

5 U.S.C. § 8906; 5 C.F.R. § 890.502(c)(1).

9

See John Skarbek, 53 ECAB 630 (2002).

10

Id.; Keith H. Mapes, 56 ECAB 130 (2004).

11

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433(a) and 10.434.

12

20 C.F.R. § 10.433(a).

4

ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in the creation
of the overpayment. It must thus establish that, at the time he received the compensation in
question, he knew or should have known that the payment was incorrect.13 The Board finds that
OWCP has not established that appellant accepted a payment that he knew or should have known
was incorrect during the period June 16, 2002 through January 19, 2008. In finding that he was
at fault, OWCP mentioned his receipt of benefit statements that advised him that his health
benefits comprised a portion of his monthly deductions, but noted that such deductions were not
reflected on his statements during the stated period and that he would have seen a change in his
monthly compensation received during this period. OWCP has not sufficiently explained what
evidence put appellant on notice that he was accepting an incorrect payment of compensation
from June 16, 2002 through January 19, 2008. The Board finds that, under the circumstances,
the evidence is insufficient to establish that he knew or should have known that he received an
incorrect payment for the period June 16, 2002 through January 19, 2008. Consequently, the case
will be remanded to OWCP to consider whether the overpayment created for this period should
be waived.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $17,285.42
overpayment of compensation because it did not deduct health benefit premiums from his
compensation for the period June 16, 2002 through January 19, 2008. The Board further finds
that he was not at fault for the overpayment that occurred from June 16, 2002 through
January 19, 2008 and that, consequently, the case must be remanded to OWCP to consider
waiver of the overpayment.14

13

See A.L., Docket No. 09-1529 (issued January 13, 2010); Tammy Craven, 57 ECAB 689 (2006); Robin O.
Porter, 40 ECAB 421 (1989).
14

In view of the Board’s finding that the case must be remanded for OWCP to consider waiver of the
overpayment, it is premature to address recovery of the overpayment.

5

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part with regard to fact and amount of
overpayment and reversed in part with regard to the finding of fault. The case is remanded for
further proceedings consistent with this decision of the Board.
Issued: July 23, 2012
Washington, DC

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

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

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

6