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

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Appearances:
Debra Hauser, Esq., & Jennifer Raymond, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0594
Issued: September 4, 2015

Case Submitted on the Record

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

JURISDICTION
On January 16, 2014 appellant filed a timely appeal from the September 24, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
October 10, 2013 based on his capacity to earn wages as a construction estimator.
FACTUAL HISTORY
OWCP accepted that on May 28, 2008 appellant, then a 33-year-old city carrier,
sustained a concussion, sprains of his neck, thoracic region, lumbar region, right shoulder and
upper arm, and contusions of his right knee and lower leg when the postal vehicle he was driving
1

5 U.S.C. §§ 8101-8193.

was hit on the passenger side by another motor vehicle.2 He stopped work on May 28, 2008 and
received disability compensation on the daily and periodic rolls.
In October 2008 OWCP referred appellant to Dr. Clark Race, a Board-certified
orthopedic surgeon, for a second opinion examination and evaluation regarding his physical
condition and capacity to work. In a December 2, 2008 report, Dr. Race noted that appellant
complained of chronic pain and memory problems since the accident. He diagnosed chronic
pain syndrome post motor vehicle accident with cervical, thoracic and lumbar strains, right knee
contusion, reactive depression, and chronic pain development. Dr. Race found appellant’s
prognosis to be guarded because of chronic pain and he recommended that appellant undergo a
functional capacity evaluation.
A functional capacity evaluation was performed on December 19, 2008.
In a
supplemental report on December 23, 2008, Dr. Race noted that the functional capacity
evaluators recommended that appellant avoid lifting, carrying, pushing, or pulling more than 20
pounds, avoid bending, lifting, or working from floor level. The evaluation also suggested that
appellant avoid repetitive use of awkward postures, stooping, kneeling, and crawling, and avoid
extensive periods of standing, walking and repetitive climbing. Dr. Race concluded that
appellant did not meet the requirements of his previous position and that the restrictions noted on
the functional capacity evaluation were appropriate.
Appellant returned to limited-duty work for the employing establishment in
February 2009 but he stopped work in April 2009.
In an April 9, 2009 report, Dr. Helo Chen, an attending osteopath and Board-certified
family practitioner, stated that appellant needed a high back chair with lumbar support to
maintain his limited-duty work. Appellant later asserted that the employing establishment did
not provide him with such a chair. Electromyogram and nerve conduction testing from early
2009 was consistent with an acute ongoing chronic bilateral L4 radiculopathy and right-sided L5
and S1 radiculopathy. Magnetic resonance imaging (MRI) scan testing of the right knee from
that period showed focal bone contusion involving the medial femoral condyle consistent with
direct trauma.
In a June 23, 2009 report, Dr. Robert E. Cantu, an attending Board-certified psychiatrist,
indicated that the May 28, 2008 work accident resulted in a psychiatric disability that prevented
appellant from returning to work in any capacity for the next six months.
In a July 7, 2009 report, Dr. Chen disagreed with Dr. Race’s opinion because appellant
had neurological and other physical complications as a result of his May 28, 2008 work injury
which had not been addressed. He recommended that appellant start physical therapy to help
with strength, conditioning, and pain control. Dr. Chen stated that appellant could not return to
work in any capacity.

2

Appellant previously underwent right shoulder surgery in the late 1990s and early 2000s related to his
participation in rodeos.

2

In August 2009 OWCP referred appellant to Dr. Grant McKeever, a Board-certified
orthopedic surgeon, for a second opinion examination and updated evaluation regarding his
physical condition and ability to work. In a September 21, 2009 report, Dr. McKeever described
appellant’s May 28, 2008 work injury and reported his examination findings. Based on his
examination, Dr. McKeever diagnosed chronic lumbosacral syndrome and chronic thoracic spine
syndrome. Given appellant’s orthopedic condition, Dr. McKeever saw no reason why appellant
could not return to his preinjury job without difficulty. He found that appellant appeared to have
nonorthopedic difficulties which would prohibit him from working and he recommended
continued psychiatric care.
In an October 19, 2009 report, Dr. Cantu stated that appellant met the clinical criteria for
post-traumatic stress disorder, depression and chronic pain disorder. He reported that appellant’s
conditions had responded to medication.
In October 2009 OWCP referred appellant to Dr. Henry Hare, Jr., a Board-certified
psychiatrist and neurologist, for a second opinion regarding his emotional condition. In a
November 9, 2009 report, Dr. Hare stated that appellant’s mood and affect were intense and
anxious but appropriate. Appellant appeared mildly depressed, but his speech was coherent and
his concentration, judgment, abstraction and memory were good. Dr. Hare diagnosed adjustment
disorder with mixed anxiety and depressed mood chronic (mild) under Axis I, obsessive
compulsive personality disorder under Axis II, and multiple orthopedic injuries with residual
pain under Axis III.3 He described appellant as very rigid and severely compulsive who saw
everything in black and white and was unable to negotiate, which led to occupational problems.
Dr. Hare felt appellant was totally disabled psychiatrically due to an extreme preoccupation with
health and pain. He stated that appellant was competent to do his usual job but that he was
totally disabled as long as he was fearful of returning to work.
OWCP requested that Dr. Hare clarify his November 9, 2009 report. In a January 29,
2010 supplemental report, Dr. Hare added that appellant had an adjustment disorder with anxiety
and depression and an obsessive compulsive personality disorder. The adjustment disorder,
anxiety, and depression were related to the work injury, but his obsessive compulsive personality
disorder was nonindustrial. Dr. Hare found that, because of his rigid personality, appellant could
only return to work if all of his conditions were met.
In April 2010, OWCP expanded the claim to accept unspecified anxiety, and a depressive
disorder due to the May 28, 2008 work injury. The acceptance was based on the reports of
Dr. Hare and a March 24, 2010 report of an OWCP medical adviser.
OWCP again requested that Dr. Hare clarify his opinion. In a May 20, 2010 report,
Dr. Hare stated that appellant could return to full-duty work with no restrictions relative to
musculoskeletal issues. He also indicated that, if appellant was accommodated for his physical
complaints, there was no psychiatric reason he could not return to work.
In June 2010 OWCP determined that there was a conflict between Dr. Cantu and
Dr. Hare regarding appellant’s psychiatric condition and referred appellant to Dr. Andrew
3

Dr. Hare did not perform a physical examination of appellant.

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Brylowski, a Board-certified psychiatrist and neurologist, for an impartial medical examination
and evaluation.
In an August 19, 2010 report, Dr. Brylowski described appellant’s factual and medical
history and detailed the findings of the evaluation he conducted on that date. Appellant stated
that he felt he was suffering depression and anxiety due to his May 28, 2008 work injury and that
he had problems with his short and long-term memory following the accident. He reported that
he had nightmares about it almost every day. Appellant stated that he argued with his father and
acted-out violently with his fiancé. He reported that he had suicidal ideations without any plan.
Dr. Brylowski noted that appellant reported pain over his entire body as well as feelings
of numbness from his earlobes to his fingers and toes. Appellant reported that his pain was about
the same day or night. Dr. Brylowski indicated that, upon examination, appellant had some
limitation of motion of his neck and right shoulder and muscle strength was 4/5 in the quadriceps
and hamstrings of his right knee. He stated that appellant had weakness in many muscle groups
that could not be explained. Dr. Brylowski found appellant’s subjective complaints were out of
proportion to objective findings.
In response to a question regarding whether anxiety and depressive conditions prevented
appellant from working in any capacity, Dr. Brylowski stated “no” and noted, “The claimant has
been dealing with symptoms of anxiety and depression for a significant portion of his life. They
appear to have been exacerbated by this injury.” He advised that appellant’s anxiety and
depressive symptoms appeared to rise to the level of an adjustment reaction with anxiety and
depressed mood features. Dr. Brylowski stated that some of appellant’s symptoms were
consistent with his preexisting diagnoses and his use of psychiatric medicines. He noted, “There
is no psychiatric condition (Axis I or Axis II) related to the work injury with symptoms of
anxiety and depression that is preventing him from returning to work in any capacity.
Adjustment reaction with anxiety and depression symptoms can be treated concurrent with
employment.”
In his August 19, 2010 report, Dr. Brylowski found that appellant could return to work
for eight hours per day from a psychiatric point of view but he could not return to his regularduty position and that he would require light-duty work. He reported that he could not find a
severe primary anxiety or depressive disorder related to the work injury and that adjustment
reaction with mixed anxiety and depressed mood appeared to continue. Objective findings were
consistent with symptom over reporting and long-standing psychiatric pathology. Dr. Brylowski
recommended a neurosurgical consultation for appellant’s low back, with verification of
examination findings, and noted that a neurosurgeon might want to perform a myelogram. He
stated that his opinion was based on objective findings on physical examination and retrospective
reexamination of some of the medical records and that those findings supported the possibility of
a right knee condition or a low back condition or both.
OWCP determined that there was a conflict between Dr. Chen and Dr. McKeever
regarding the nature of appellant’s physical condition and referred appellant to Dr. Frank L.
Barnes, a Board-certified orthopedic surgeon, for an impartial examination.

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In an October 26, 2010 report, Dr. Barnes described the May 28, 2008 work accident and
appellant’s medical history. He noted that, after the accident, appellant complained of pain in his
entire spine, right shoulder and right knee. Appellant also reported that he experienced shortterm and long-term memory loss since the accident. Dr. Barnes stated that an MRI scan of
appellant’s lumbar spine showed a right-sided disc herniation at L5-S1 which indented the nerve
root and that an MRI scan of his thoracic spine showed a right T8 disc protrusion contacting the
spinal cord. Dr. Barnes detailed the findings of the physical examination he conducted on
October 26, 2010 and diagnosed closed-head injury with symptoms of poor memory, thoracic
disc herniation, and lumbar disc herniation.
In a November 24, 2010 report, Dr. Barnes responded to OWCP’s questions noting that
appellant’s neck, lumbar, thoracic, shoulder, and knee conditions did not prevent him from
working eight hours per day in a sedentary capacity. Regarding a question about whether
appellant’s sprains and contusions had resolved, he stated that the acute sprain and contusions, in
all medical probability, had resolved within six weeks of the accident. In a November 23, 2010
work restriction form, Dr. Barnes noted that appellant could work limited duty for eight hours
daily, with restrictions, or squat or kneel.
In December 2010 OWCP asked Dr. Barnes to further clarify his work restrictions. In a
December 23, 2010 work restriction form, Dr. Barnes indicated that appellant could perform
limited-duty work for eight hours per day, with restrictions of walking for two hours per day,
standing for one hour per day, operating a motor vehicle at work for two hours per day and
lifting, pushing, or pulling up to 20 pounds. He could twist, bend, stoop, squat, or climb for onehalf hour per day for each activity.4 In January 2010 OWCP asked Dr. Barnes to clarify the
number of hours that appellant could lift. In a January 10, 2011 work restriction form,
Dr. Barnes stated that appellant could sit eight hours daily while performing limited duty for
eight hours daily. He had restrictions of walking for two hours per day, standing for two hours
per day, operating a motor vehicle at work for one hour per day and lifting 10 pounds for two
hours per day. Appellant could not squat or climb.
In various 2010 and 2011 reports, Dr. Chen continued to note that appellant was totally
disabled due to thoracic, lumbar, and right knee conditions.
In February 2011, appellant began to participate in OWCP-sponsored vocational
rehabilitation efforts. A February 18, 2011 report noted that appellant stated that he had worked
for a construction company as a manager from 1998 to 2003. Appellant indicated that he
supervised a crew of 10 to 15 employees and coordinated mostly residential remodeling jobs and
that his job included assigning crews and ensuring that they had materials for the job.
In April 2011 Edward Hernandez, appellant’s vocational rehabilitation counselor at the
time, indicated that he had basic computer skills in using Microsoft Office Word and he
suggested that he undergo additional vocational training so that he would be able to use
Microsoft Excel, Outlook, and Power Point.

4

Dr. Barnes indicated on the form that appellant’s poor coordination, extremity atrophy and bilateral leg
weakness and numbness prevented him from performing more strenuous work than sedentary work.

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In an undated report, Beth Deans, a certified vocational evaluator, reported the findings
of vocational testing she administered to appellant on May 19 and 20, 2011. She noted that
appellant’s general cognitive ability appeared to be considerably below the average range at the
time according to the results of the differential aptitude test. Appellant scored in the low range
on both the verbal and the numerical portions and his abstract reasoning and spatial scores.
Ms. Deans indicated that vocational training or an apprenticeship would be achievable with
appellant’s high motivation. Appellant’s best job matches between aptitudes and interests were
park worker (booth), security guard, and retail sales clerk. He needed improvement in his
academic skills to work as an insurance clerk, advertising manager or sales representative (farm
and garden). Ms. Deans stated that appellant’s constant pain and medications may have
seriously affected his cognitive functioning and memory during the vocational testing and
indicated that he appeared to need cognitive retraining before attempting any formal job training.
In a June 29, 2011 report, Mr. Hernandez stated that he had planned for appellant to
participate in computer skills retraining, however the next available training was
September 2011. Mr. Hernandez stated that appellant could perform the constructed position of
construction estimator, a job listed in the Department of Labor’s Dictionary of Occupational
Titles. He stated that appellant’s work history showed 10 years of work as a superintendent for a
small construction company that involved scheduling construction projects, assigning work
crews and purchasing supplies.
The construction estimator position involved analyzing blueprints, specifications,
proposals, and other documentation to prepare time, cost, and labor estimates for constructionrelated projects and services. The construction estimator must review data to determine material
and labor requirements and prepare estimates for planning, organizing and scheduling work. The
job also involves preparing bids, selecting vendors or subcontractors and determining cost
effectiveness. The construction estimator conducts special studies to develop standard hour and
cost data and consults with clients, vendors, or others to discuss and formulate estimates and
resolve issues. The physical demands of the construction estimator position, classified as
sedentary in nature, included occasional lifting up to 10 pounds, frequent reaching and handling
and occasional fingering. Appellant’s vocational rehabilitation counselor performed a labor
market survey on June 20, 2011 and found that the construction estimator position still was
reasonably available in appellant’s commuting area at a weekly wage of $600.00.
Appellant attempted to find a job over the course of 90 days, but he was not successful in
his job placement efforts. His vocational rehabilitation file was closed in late October 2011.
In a June 19, 2012 letter, OWCP advised appellant that it proposed to reduce his
compensation based on his capacity to earn wages as a construction estimator. It noted that the
opinion of Dr. Barnes showed that his physical condition did not prevent him from performing
the construction estimator position5 and that the opinion of Dr. Brylowski showed that his
psychiatric condition did not prevent him from performing the position. OWCP noted that
appellant’s vocational rehabilitation counselor provided an opinion that he was vocationally
5

OWCP indicated that appellant’s physical work abilities were described by the work restrictions form that
Dr. Barnes completed on January 10, 2011.

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capable of working as a construction estimator. Appellant was provided 30 days from the date of
the letter to submit evidence and argument challenging the proposed action.
Appellant submitted a July 9, 2012 report in which Dr. Chen stated that he could only
work for four hours per day due to his multiple medical problems. Dr. Chen indicated that
appellant continued to suffer from pain in his neck, upper back, lower back, right shoulder and
right knee and that he also had anxiety and depressive disorders.
Appellant’s vocational rehabilitation counselor performed another labor market survey on
September 2, 2013 and found that the construction estimator position still was reasonably
available in appellant’s commuting area at a weekly wage of $600.00. The position had the same
duties and physical requirements as it did in June 2011.
In a September 24, 2013 decision, OWCP reduced appellant’s compensation effective
October 10, 2013 based on his capacity to earn wages as a construction estimator. It indicated
that the weight of the medical evidence continued to rest with the opinions of the impartial
medical specialists Dr. Barnes and Dr. Brylowski, respectively.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.7
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity, or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of his or her injury, his or her degree of physical
impairment, his or her usual employment, his or her age, his or her qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his or her wage-earning capacity in his or her disabled condition.8 Wage-earning
capacity is a measure of the employee’s ability to earn wages in the open labor market under
normal employment conditions.9 The job selected for determining wage-earning capacity must
be a job reasonably available in the general labor market in the commuting area in which the
employee lives.10 The fact that an employee has been unsuccessful in obtaining work in the
6

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C. § 8115(a).

9

Albert L. Poe, 37 ECAB 684, 690 (1986).

10

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).

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selected position does not establish that the work is not reasonably available in his commuting
area.11
In determining wage-earning capacity based on a constructed position, consideration is
given to the residuals of the employment injury and the effects of conditions which preexisted
the employment injury.12 In determining wage-earning capacity based on a constructed position,
consideration is not given to conditions which arise subsequent to the employment injury.13
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the U.S. Department of Labor, Dictionary of Occupational Titles or otherwise available in the
open labor market, that fits that employee’s capabilities with regard to his or her physical
limitations, education, age, and prior experience. Once this selection is made, a determination of
wage rate and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.14
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”15 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.16 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.
The Board has held that stale medical evidence cannot form the basis for current
evaluation of residual symptomology, disability determination, or other medical determinations.

11

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

12

See Jess D. Todd, 34 ECAB 798, 804 (1983).

13

N.J., 59 ECAB 397 (2008).

14

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953).

15

5 U.S.C. § 8123(a).

16

William C. Bush, 40 ECAB 1064, 1075 (1989).

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For example, in the case of J.A.,17 the Board held that medical reports from November 2010 were
of limited probative value regarding the claimant’s medical condition as October 2012.18
ANALYSIS
OWCP accepted that on May 28, 2008 appellant sustained a concussion, sprains of his
neck, thoracic region, lumbar region, right shoulder and upper arm, and contusions of his right
knee and lower leg when his work vehicle was struck by another vehicle. It later accepted that
he sustained anxiety and depressive disorder due to the May 28, 2008 work injury. Appellant
stopped work on May 28, 2008 and received disability compensation. He returned to limitedduty work for the employing establishment in February 2009 but he stopped work in April 2009.
Appellant received disability compensation on the periodic rolls.
OWCP reduced appellant’s compensation effective October 10, 2013 due to his capacity
to earn wages as a construction estimator. The determination that appellant was physically
capable of working as a construction estimator was based on the opinion of Dr. Barnes, a Boardcertified orthopedic surgeon who served as an impartial medical specialist. The determination
that he was psychiatrically capable of working as a construction estimator was based on the
opinion of Dr. Brylowski, a Board-certified psychiatrist and neurologist, who also served as an
impartial specialist. OWCP found that these opinions constituted the weight of the medical
opinion evidence with respect to appellant’s physical and psychiatric medical conditions and that
they resolved the conflicts in the medical opinion evidence with respect to these matters.
The Board notes that OWCP properly referred appellant to Dr. Barnes and Dr. Brylowski
for impartial medical examinations.19 However, OWCP improperly relied on their opinions to
determine that appellant was physically and psychiatrically able to work as a construction
estimator. In this case, the medical evidence upon which OWCP relied to determine appellant’s
ability to work as a construction estimator was stale.
Dr. Barnes’ opinion regarding appellant’s ability to work from an orthopedic standpoint
was based on a physical examination of appellant conducted on October 26, 2010.20
17

Docket No. 13-1657 (issued February 3, 2014).

18

See also Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination and loss of wage-earning capacity determination);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a Constructed
Position, Chapter 2.816.4(d) (June 2013) (a wage-earning capacity determination must be based on a reasonably
current medical evaluation).
19

OWCP properly determined that there was a conflict in the medical opinion evidence regarding appellant’s
physical condition between Dr. Chen, an attending osteopath and Board-certified family practitioner, and
Dr. McKeever, a Board-certified orthopedic surgeon, who served as an OWCP referral physician. It also properly
determined that there was a conflict in the medical opinion evidence regarding appellant’s psychiatric condition
between Dr. Cantu, an attending Board-certified psychiatrist, and Dr. Hare, a Board-certified psychiatrist and
neurologist, who served as an OWCP referral physician. See supra note 15.
20

Dr. Barnes initially completed his narrative report and work restrictions evaluation form on October 26, 2010.
He later completed work restrictions evaluation forms on November 23 and December 23, 2010 and January 10,
2011, but these were not based on any additional examination of appellant.

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Dr. Brylowski’s opinion regarding appellant’s ability to work from a psychiatric standpoint was
based on a psychiatric examination of appellant conducted on August 19, 2010. These opinions
would not provide a reasonably accurate assessment of appellant’s medical condition and ability
to work around the time OWCP adjusted his compensation effective October 10, 2013. The
Board has had occasion to evaluate the probative value of older medical reports and, because
cases differ, it has never adopted a rigid standard. However, in J.A.,21 the Board held that in that
case medical reports from November 2010 were of limited probative value regarding the
claimant’s medical condition as October 2012.
The Board further notes that, although appellant had considerable experience in the
construction field and his vocational rehabilitation counselor approved the position, there is
evidence in the record that several physicians noted appellant’s problems with short-term and
long-term memory. Vocational testing from May 2011 suggested that appellant had cognitive
ability considerably below the average range particularly with regard to skills needed for
technical or administrative types of jobs.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation effective
October 10, 2013 based on his capacity to earn wages as a construction estimator.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.22
Issued: September 4, 2015
Washington, DC

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

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

21

See supra note 17.

22

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 20-0703
Issued: December 22, 2020

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 February 10, 2020 appellant filed a timely appeal from a December 4, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained a medical condition causally related to the
accepted employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 4, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 21, 2019 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 17, 2019 she sustained a dog bite to the lower leg
while in the performance of duty. She stopped work on that date. On the reverse side of the claim
form, appellant’s supervisor certified that the information provided by appellant on the form was
true to the best of his knowledge and acknowledged that appellant was injured in the performance
of duty. Appellant returned to work full time with restrictions on October 26, 2019 and to fullduty full-time work on October 30, 2019.
In a duty status report (Form CA-17) dated October 17, 2019, William Spencer, III, a
certified physician assistant, noted clinical findings of left leg open wound and noted that
appellant’s injury occurred due to a dog bite on October 17, 2019. He advised that appellant could
not resume work and that she was not able to perform the regular duties of her position. In attached
instructions for caring for an animal bite dated October 18, 2019, Mr. Spencer advised continued
use of antibiotics and to follow up on October 21, 2019 for reevaluation. He also signed a work
release/physical assessment letter dated October 18, 2019, which stated that appellant was unable
to work.
In a development letter dated October 25, 2019, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It informed her of the medical
evidence necessary to establish her claim and afforded her 30 days to respond.
By decision dated December 4, 2019, OWCP accepted that the October 17, 2019
employment incident had occurred, as alleged. It denied the claim, however, as the evidence of
record was insufficient to establish a diagnosed medical condition in connection to the accepted
employment incident and thus, the requirements had not been met to establish an injury as defined
by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every

3

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4
J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).

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compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of 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 allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
OWCP’s procedures provide that where the condition reported is a minor one, such as a
burn, laceration, insect sting or animal bite, which can be identified on visual inspection by a lay
person, a case may be accepted without a medical report and no development of the case need be
undertaken, if the injury was witnessed or reported promptly, and no dispute exists as to the
occurrence of an injury, and no time was lost from work due to disability.8 This section of the
procedure manual further states that, in cases of serious injury (motor vehicle accidents, stabbings,
shootings, etc.) if the agency does not dispute the facts of the case, and there are no questionable
circumstances, the case may be accepted for a minor condition, such as laceration, without a
medical report, while simultaneously developing the case for other more serious conditions. This
is true even if there is lost time due to such a serious injury.9
ANALYSIS
The Board finds that appellant has established an open wound due to the accepted dog bite
incident.
In the instant case, appellant’s supervisor signed appellant’s Form CA-1 on October 21,
2019, attesting to appellant’s statement that she sustained a dog bite to the lower leg while in the
performance of duty on October 17, 2019. On duty status report Form CA-17 Mr. Spencer, a
physician assistant, recorded an open leg wound due to an October 17, 2019 dog bite. This
evidence supports the existence of an open wound to the left lower leg capable of being identified
on visual inspection by a lay person, when considered along with the affirmation provided by
appellant’s supervisor.

5

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.J., Docket No. 19-0461 (issued August 11, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, 41 ECAB 354 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).
9

Id.

3

Therefore, the Board finds that appellant has established that she sustained an open wound
due to the accepted dog bite.10 Accordingly, the December 4, 2019 decision is reversed to find
that the claim is accepted for an open wound and payment of appropriate benefits for this condition.
CONCLUSION
The Board finds that appellant has established that she sustained an open wound causally
related to the accepted October 17, 2019 dog bite incident.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 22, 2020
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

10
See also S.A., Docket No. 13-2152 (issued March 20, 2014); E.S., Docket No. 13-2170 (issued
February 26, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Oakland, CA, Employer
__________________________________________

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

Docket No. 10-118
Issued: October 1, 2010

Case Submitted on the Record

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

JURISDICTION
On October 16, 2009 appellant filed a timely appeal from a July 16, 2009 merit decision
of the Office of Workers’ Compensation Programs. 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 the Office met its burden of proof to terminate compensation for
wage loss effective May 10, 2009.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated March 9, 1998, the
Board found that appellant’s May 15, 1995 occupational disease claim was timely filed.1
Following development of the evidence, the Office accepted the claim for right carpal tunnel
syndrome. Appellant received compensation based on a loss of wage-earning capacity as
determined by actual earnings in private employment.2 On July 25, 2007 he underwent a right
1

Docket No. 96-1256 (issued March 9, 1998).

2

Appellant worked in federal employment as an able-bodied seaman, resigning in April 1993.

carpal tunnel release surgery, performed by Orthopedic Surgeon Dr. Robert Bowles. The Office
placed appellant on the periodic rolls and he began receiving compensation for temporary total
disability.
In a work capacity evaluation (Form OWCP-5c) dated December 5, 2007, Attending
Osteopath Dr. Karynn Lindsey indicated appellant could work eight hours with restrictions,
including no repetitive wrist or elbow movements and a 20-pound lifting restriction. In an
OWCP-5c form dated February 7, 2008, Dr. Bowles checked boxes “yes” that appellant could
perform his usual job and had reached maximum medical improvement. He noted a 10 percent
right arm impairment and, with respect to specific limitations, stated “no limitations.”
By letter dated April 10, 2008, the Office requested that Dr. Lindsey provide an opinion
regarding appellant’s work capacity. In a letter dated April 3, 2009, it notified appellant that it
proposed to terminate compensation for wage loss. The Office stated that the February 7, 2008
form report from Dr. Bowles was the basis for the termination and appellant was advised to
submit relevant evidence within 30 days.
By decision dated May 7, 2009, the Office terminated wage-loss compensation effective
May 10, 2009. Appellant requested reconsideration of his claim. He submitted a May 13, 2009
report from Dr. Richard Gordon, who noted appellant complained of numbness and tingling of
his hands. Dr. Gordon diagnosed moderate right and severe left carpal tunnel syndrome.
In a decision dated July 16, 2009, the Office reviewed the merits of the claim and denied
modification of the termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion.4 A rationalized medical opinion is an opinion based on a
complete factual and medical background, of reasonable medical certainty and supported by
medical rationale.5
ANALYSIS
The Office based its termination of wage-loss compensation on the February 7, 2008
OWCP-5c report from Dr. Bowles, who performed the July 2007 carpal tunnel release.
Dr. Bowles did not provide a history or results on examination. On the form report, Dr. Bowles

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

5

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

2

checked a box “yes” that appellant was capable of performing his regular job and wrote “no
limitations” without further explanation.
As noted above, a rationalized medical opinion is one based on a complete factual and
medical background and supported by medical rationale. Dr. Bowles did not provide a complete
factual and medical background or a rationalized medical opinion on the issue presented.6 It is
the Office’s burden of proof to terminate compensation for wage loss, and the Office cannot
meet its burden with an unrationalized medical report that is of little probative value. The weight
of medical evidence, as discussed above, is based on its convincing quality and the care of the
analysis manifested. The Board finds that the evidence of record is not sufficient to meet the
Office’s burden of proof to terminate compensation for wage loss effective May 10, 2009.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate
compensation for wage loss effective May 10, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 16 and May 7, 2009 are reversed.
Issued: October 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

It is well established that a checkmark “yes” on a form question is of diminished probative value. Cecilia M.
Corley, 56 ECAB 662 (2005).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Williamstown, MA, Employer
__________________________________________

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

Docket No. 12-1614
Issued: March 15, 2013

Case Submitted on the Record

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

JURISDICTION
On July 24, 2012 appellant filed a timely appeal of a July 9, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation to
zero for failure to cooperate with vocational rehabilitation services.
On appeal, appellant alleges that his physicians have told OWCP that he is disabled for
years. He also contested OWCP’s weighing of the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are hereby incorporated by reference.2 In the September 18, 2007 decision, the
Board found that OWCP improperly reduced appellant’s compensation for failure to cooperate
with vocational rehabilitation services as OWCP gave weight to the report of a second opinion
physician who evaluated him prior to his April 2006 surgery. The Board found that OWCP
should have referred him for another physical examination to determine his current work
capacity prior to reducing his compensation for failure to participate in vocational rehabilitation.
By letters to appellant dated October 4, 2007, August 7, 2008, February 18, April 2 and
July 8, 2009 and July 12, 2010, OWCP asked appellant for a current medical report from his
treating physician. Appellant did not file a timely response.
On March 25, 2010 OWCP referred appellant to Dr. Frank H. Schildgen, a Boardcertified orthopedic surgeon, for a second opinion. In an April 13, 2010 report, Dr. Schildgen
discussed appellant’s medical history and detailed his physical examination findings including
circumferential measurements of the arms, wear pattern on the fingertips and grip strength. He
noted a markedly positive Tinel’s sign to gentle pressure in the right cubital tunnel and that the
ulnar nerve was not present in this area. Dr. Schildgen noted tenderness throughout the entire
medial and lateral aspect of the right elbow, noted that elbow range of motion lacked 10 degrees
of extension but had full flexion. He noted no restriction of rotor motion, no joint crepitus with
range of motion testing and that the ligamentous stability of the joint is intact. Dr. Schildgen
noted no specific Tinel’s sign over the median nerve at the wrist, but noted that wrist flexion
produced immediate paresthesias in his fourth and fifth digits. He found that pinprick testing
revealed diminished sensation only over the tips of the fourth and fifth digits. Dr. Schildgen
noted full active range of motion in the right shoulder, good muscular development and wellhealed surgical incisions.
With regard to the epicondylitis in both elbows, he noted that there was no soft tissue
swelling or evidence of active inflammation in either joint. Dr. Schildgen noted that appellant’s
degree of symptomatology in his right forearm did not correlate well with the physical findings.
He noted that on examination appellant had marked subjective findings, but objectively there
was no basis to continue his total disability status. Dr. Schildgen opined that appellant had a
moderate disability attributable to his work-accepted conditions. He recommended that appellant
not return to unrestricted work duties as a postal clerk. Dr. Schildgen noted that appellant may
work on what would be primarily a sedentary basis in which two-thirds of his work time would
be in a seated position and one-third would be either standing or on an ambulatory basis. He
noted that appellant should not lift more than 15 pounds and should avoid repetitious use of his
elbows. Dr. Schildgen noted that appellant’s carpal tunnel syndrome did not appear to be
significant at this time, as he had good median nerve sensation and there was no evidence of
thenar atrophy.
2

Docket No. 07-418 (issued September 18, 2007). OWCP accepted the occupational disease claim of appellant,
who was then a 39-year-old postal clerk, for bilateral/lateral epicondylitis and right medial epicondylosis. Appellant
underwent a right elbow arthroscopy on June 9, 2000 and a right ulnar nerve decompression with submuscular
anterior transposition on March 20, 2001.

2

By letter dated November 12, 2010, OWCP referred appellant for vocational
rehabilitation services. In a report dated December 8, 2010, Vocational Care Manger, Susan
Deif noted that she attempted to call him on November 23, 2010, but was not connecting, so she
wrote two certified letters to him requesting that he contact her as soon as possible to schedule an
appointment with regard to vocational services. She noted that she did reach appellant by
telephone on December 8, 2010, he had acknowledged that he had received both letters, but had
not contacted her because he believed that he was too disabled to participate in vocational
rehabilitation services. Appellant also contended that the employing establishment was supposed
to find him a job or make him an offer. He stated that he felt harassed by OWCP. Ms. Deif
agreed not to meet with appellant.
By letter dated March 22, 2011, OWCP directed appellant to contact the claims examiner
and the rehabilitation specialist within 30 days to make a good effort to participate in the
rehabilitation effort. It advised him that, if he believed he had good reason for not participating
in this effort, he should advise OWCP within 30 days from the date of the letter of his reasons for
noncompliance. OWCP also informed appellant of the consequences of his failure to cooperate
with vocation rehabilitation.
Appellant responded in a letter dated April 15, 2011. He contended that Dr. Schildgen
did a five-minute examination with no testing at all. Appellant noted that he was unwilling to
participate in the rehabilitation effort because of his disability. He stated that he had difficulty
driving a vehicle and also had limitations with his hands and arms, which would make it difficult
to get to rehabilitation. With his letter, appellant sent two work capacity evaluation forms by
Dr. William Kober, a Board-certified family practitioner, dated June 4, 2008 and April 29, 2009.
In the more recent April 20, 2009 report, Dr. Kober found that appellant could do zero hours of
work reaching above his shoulder, bending or stooping, repetitive movements with his wrist and
elbow, pushing, pulling, lifting, squatting, kneeling or climbing. He restricted appellant to 30 to
45 minutes of walking, two to three hours of standing and six hours of sitting. Appellant stated
that these restrictions will last appellant’s lifetime. Dr. Kober noted that appellant was unable to
use either upper extremity to do any work. Appellant also attached a letter from the Social
Security Administration dated March 7, 2003, indicating that his disability was continuing.
Dr. Kober also attached a letter that appellant received from his Senator’s case worker wherein
she indicated that social security still considered him disabled and that appellant’s physician’s
continued to verify his disability under OWCP.
By decision dated May 10, 2011, OWCP reduced appellant’s compensation for his
refusal to participate in connection with vocational rehabilitation. It noted that he did not
respond to the March 22, 2011 letter. OWCP discussed the letter from appellant’s senator’s
office, the duty evaluations by Dr. Kober and the social security notice, but found that the
evidence submitted did not show good cause for not complying with rehabilitation efforts.
Because appellant failed to undergo the essential preparatory effort of vocational testing, OWCP
found that it could not determine what his wage-earning capacity would have been and that
therefore it is assumed that the vocational rehabilitation effort would have resulted in his return
to work at the same or higher wages than he had in the position before he was injured.
Accordingly, his compensation was reduced to zero as of June 5, 2011.

3

On June 3, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In a June 2, 2011 report, Dr. Anping Han, a Board-certified family practitioner, indicated
that appellant became disabled approximately 10 years ago. He noted that appellant injured both
of his elbows while working for the employing establishment and that he was unable to use his
upper extremities to do any type of work. Dr. Han indicated that recent electromyograms show
neuropathy of both ulnar nerves of both elbows. He stated that, based on his review of
appellant’s medical record and his examination of appellant, it was his medical opinion that
appellant was unable to return to work in the future.
The hearing was held on October 20, 2011. Appellant discussed his multiple surgeries.
He also indicated that the reason he became a postal clerk was because he had four-knee
operations after 20 years. Appellant indicated that he had approximately nine surgeries related to
his employment. He testified that Dr. Schildgen did no tests and only saw him for five minutes.
Appellant indicated that social security found that he was in worse condition now than when they
first found him disabled. He discussed how difficult it was for him to go about the daily tasks of
living.
By decision dated December 27, 2011, OWCP’s hearing representative affirmed the
May 11, 2011 decision.
On March 5, 2012 appellant requested reconsideration. In support of his request,
appellant submitted a February 28, 2012 report by Dr. Paul Donovan, an osteopath, who listed
his impressions as: (1) bilateral elbow tendinitis with ulnar nerve entrapment syndrome, status
post surgery; (2) right shoulder bursitis/rotator cuff tendinitis with known impingement and AC
arthralgia, status post surgeries; and (3) bilateral carpal tunnel syndrome. Dr. Donovan indicated
that his current findings were consistent with the results of the previous clinical evaluations and
imaging and diagnostic data. He stated that appellant’s present condition would prevent him
from using his upper extremities in the workplace, as even activities of daily living often cause a
flare up of pain and incapacitation. Dr. Donovan opined that appellant was fully disabled.
By decision dated July 9, 2012, OWCP denied modification of the prior decisions, noting
that the weight of the medical evidence remained with the well-rationalized report of
Dr. Schildgen who opined that appellant was capable of performing limited-duty work for eight
hours per day with certain restrictions.
LEGAL PRECEDENT
Section 8113(b) of FECA provides:
“If an individual without good cause fails to apply for or undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wage-

4

earning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3
Section 10.519 of Title 20 of the Code of Federal Regulations provide, in pertinent part:
“(b) Where a suitable job has not been identified, because failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meetings with [OWCP’s] nurse, interviews, testing, counseling, functional
capacity evaluations and work evaluations), [OWCP] cannot determine what
would have been the employee’s wage-earning capacity.4
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [OWCP] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity and [OWCP] will reduce the employee’s monetary compensation
accordingly (that is, to zero). This reduction will remain in effect until such time
as the employee acts in good faith to comply with the direction of [OWCP].”5
OWCP’s procedures state that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, a functional capacity evaluation, other
interviews conducted by the rehabilitation counselor, vocational testing sessions and work
evaluations, as well as lack of response or inappropriate response to directions in a testing
session after several attempts at instruction.6
ANALYSIS
OWCP accepted appellant’s claim for bilateral/lateral epicondylitis and right medial
epicondylosis. Appellant underwent numerous surgeries. After the Board’s remand of this case,
OWCP made numerous attempts to receive an updated medical evaluation by his treating
physician. When these attempts failed, it referred appellant to Dr. Schildgen for a second
opinion.
In an April 13, 2010 report, Dr. Schildgen discussed appellant’s medical history and
made multiple findings on physical examination, including a discussion of the circumferential
measurements of the arms, grip strength, Tinel’s sign, tenderness in the elbow, the results of
pinprick testing and range of motion findings sensation only over the tips of the fourth and fifth
digits. He noted that appellant had full active range of motion in the right shoulder, good
muscular development and well-healed surgical incisions. With regard to the epicondylitis in
both elbows, Dr. Schildgen noted no soft tissue swelling or evidence of active inflammation in
3

5 U.S.C. § 8113(b); see J.E., 59 ECAB 606 (2008).

4

20 C.F.R. § 10.519(b).

5

Id. at § 10.519.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(a) (November 1996); see Sam S. Wright, 56 ECAB 358 (2005).

5

either joint. He found that appellant had a moderate disability and indicated that he could not
return to unrestricted work duties as a postal clerk. However, Dr. Schildgen did note that
appellant could return to work with restrictions.
On the basis of the report of Dr. Schildgen, OWCP referred appellant for vocational
counseling, but he refused to cooperate in this counseling. Appellant contended that he was
disabled and that he could not drive a car to counseling. Due to his lack of cooperation, the
vocational counselor terminated her efforts.
The Board finds that appellant obstructed vocational rehabilitation. Appellant refused to
participate in a rehabilitation effort when so directed and has failed to establish good cause for
not cooperating with the vocational counselor.
At the time of the referral to vocational counseling, the only current medical report was
that of Dr. Schildgen, who conducted a review of the medical record and a complete physical
examination and determined that appellant was able to work in a limited-duty capacity.
Dr. Schildgen’s opinion is supported by a detailed medical report. Appellant’s allegations that
Dr. Schildgen only saw him for five minutes and conducted no testing is contradicted by the
detail shown in this report.
No subsequent report sufficiently contradicts the well-rationalized report of
Dr. Schildgen. Dr. Kober’s work capacity evaluation forms are not sufficiently detailed or
rationalized to support a determination that appellant was totally disabled. Dr. Han indicated that
appellant was totally disabled, but failed to provide a complete explanation of his findings.
Finally, Dr. Donovan did not provide any new testing or evaluations to support his conclusion
that appellant was totally disabled. Accordingly, the weight of the medical evidence rests with
the opinion of Dr. Schildgen.
Appellant argued that the Social Security Administration considers him disabled. The
Board notes that findings of other administrative agencies are not determinative of his level of
disability under FECA. It is well established that decisions of other federal agencies or
government bodies are not dispositive to issues raised under FECA. Decisions made by such
tribunals are rendered under different statutes which have varying standards for establishing
eligibility for benefits.7
The Board finds that appellant refused to cooperate with the vocational rehabilitation
specialist and OWCP properly determined that his reasons for noncooperation were not valid and
reduced his compensation benefits to zero.
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.

7

A.C., Docket No. 12-1579 (issued December 13, 2012).

6

CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation to
zero for failure to cooperate with vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2012 is affirmed.
Issued: March 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Atlanta, GA, Employer
__________________________________________

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

Docket No. 09-1884
Issued: April 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 15, 2009 appellant filed a timely appeal from a May 19, 2009 decision of the
Office of Workers’ Compensation Programs denying continuation of pay. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to continuation of pay for an accepted
consequential injury.
On appeal, counsel contends that the Office’s May 19, 2009 decision is “contrary to fact
and law.”

FACTUAL HISTORY
The Office accepted that on June 11, 2004 appellant, then a 66-year-old claims
representative, sustained a right rotator cuff tear when stapling heavy folders.1 Appellant
stopped work on January 31, 2005 and underwent a right rotator cuff repair on February 2, 2005.
She received compensation on the supplemental rolls beginning on March 11, 2005 and on the
periodic rolls beginning on April 4, 2005. Appellant returned to part-time limited duty on
May 10, 2005, gradually increasing to full-time restricted duty.2
On March 10, 2008 appellant requested that the employing establishment provide a
telephone headset and ergonomic keyboard due to her accepted shoulder injury. She obtained a
June 24, 2008 letter from Dr. Paul J. Sutej, an attending rheumatologist, recommending the
headset and keyboard. Appellant advised her supervisor in June 24 and 26, 2008 e-mails that she
obtained a letter of medical necessity from Dr. Sutej and would receive another from her
orthopedist on June 26, 2008.
In a June 26, 2008 report, Dr. Scott Pennington, an attending Board-certified orthopedic
surgeon, noted that appellant presented that day to receive his letter recommending a telephone
headset due to the effects of the accepted right rotator cuff tear.3 He noted that appellant fell in
his reception area while waiting to obtain the letter, fracturing her right fifth metatarsal.
On July 21, 2008 appellant filed a traumatic injury claim (Form CA-1), claiming a
June 26, 2008 right foot fracture sustained in Dr. Pennington’s waiting room while obtaining
work accommodations. She claimed continuation of pay. The employing establishment
confirmed that it required medical documentation supporting her request for accommodations.
The Office assigned the claim File No. xxxxxx514. Appellant did not return to work.
The Office processed the claim as a consequential injury as it occurred while obtaining
job accommodations related to the accepted right shoulder condition. It accepted a right fifth
metatarsal fracture under File No. xxxxxx058 and deleted File No. xxxxxx514. The Office noted
that appellant was not entitled to continuation of pay for a consequential injury. In a
November 3, 2008 letter, appellant asserted her entitlement to continuation of pay from June 26
to September 5, 2008.
By decision dated November 19, 2008, the Office denied appellant’s claim for
continuation of pay on the grounds that the June 26, 2008 incident constituted a consequential
injury and not a new traumatic injury.

1

By decision dated July 13, 2006, the Office denied appellant’s claim for reflex sympathetic dystrophy syndrome
of the right shoulder. This decision is not before the Board on the present appeal.
2

On November 10, 2005 the Office accepted that appellant sustained a traumatic right hip injury at work when a
filing cabinet fell on her. It assigned the claim File No. xxxxxx251. This claim is not before the Board on the
present appeal.
3

In a July 3, 2008 report, Dr. Pennington requested that the employing establishment provide appellant with a
telephone headset and ergonomic keyboard to accommodate the effects of the accepted right shoulder injury.

2

In a November 25, 2008 letter, appellant requested a telephonic hearing, held
March 5, 2009. During the hearing, counsel acknowledged that appellant was not entitled to
continuation of pay for the June 26, 2008 consequential injury. Appellant explained that she
wanted continuation of pay in lieu of compensation benefits because she would receive more
money.
By decision dated and finalized May 19, 2009, the Office affirmed the November 19,
2008 decision, finding that appellant was not entitled to continuation of pay related to the
June 26, 2008 consequential injury. It noted that appellant could file a claim for compensation
for any work absences related to the June 26, 2008 injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act authorizes continuation of pay for an
employee who has filed a valid claim for a traumatic injury.4 Continuation of pay requires the
employing establishment to continue the employee’s regular pay during any periods of disability,
up to a maximum of 45-calendar days. This is paid by the employing establishment, not the
Office. However, the ultimate decision as to whether appellant is eligible for continuation of pay
rests with the Office.5
Continuation of pay is payable only for time lost from work due to an initial traumatic
injury.6 To be eligible for continuation of pay, an employee must: “(1) Have a traumatic injury
which is job related and the cause of the disability, and/or the cause of lost time due to the need
for medical examination and treatment; (2) File Form CA-1 within 30 days of the date of the
injury; and (3) Begin losing time from work due to the traumatic injury within 45 days of the
injury.”7
An initial traumatic injury may give rise to a consequential injury.8 When an injury
arises in the course of employment, every natural consequence that flows from that initial injury
likewise arises out of the employment, unless it is the result of an independent intervening cause
attributable to a claimant’s own intentional misconduct.9 Such consequential or secondary injury
is compensable because it arises directly from an accepted injury.10

4

5 U.S.C. § 8118(a).

5

20 C.F.R. § 10.200.

6

Id. at § 10.205(a)(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

7

Id. at § 10.205(a)(1-3). See also J.M., 61 ECAB ___ (Docket No. 09-1563, issued February 26, 2010).

8

S.M., 58 ECAB 166 (2006); Debra L. Dilworth, 57 ECAB 516 (2006).

9

Mary Poller, 55 ECAB 483, 487 (2004). See also S.M., supra note 8.

10

Kathy A. Kelley, 55 ECAB 206 (2004).

3

ANALYSIS
The Office accepted that appellant sustained a right rotator cuff tear in the performance of
duty on June 11, 2004. On June 26, 2008 appellant fractured her right fifth metatarsal at her
doctor’s office while obtaining a required work accommodations letter related to the accepted
shoulder injury. She claimed a new traumatic injury; however, the Office determined that the
claim was properly one for consequential injury, as the June 26, 2008 injury flowed directly from
the accepted rotator cuff tear. As the injury was consequential and not a new traumatic injury,
appellant was not entitled to continuation of pay. Counsel acknowledged at the March 5, 2009
hearing that appellant was not eligible to receive continuation of pay for the June 26, 2008
injury.
It is well established that continuation of pay is payable only for wage loss due to an
initial traumatic injury.11 There is no provision under the Act or its regulations authorizing
continuation of pay for a consequential injury. Therefore, appellant is not eligible to receive
continuation of pay for the June 26, 2008 consequential right foot fracture. She remains entitled
to compensation for wage loss and medical expenses related to the June 26, 2008 injury.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for continuation of pay
related to an accepted consequential injury.

11

20 C.F.R. § 10.205(a)(3). See also Carol A. Lyles, supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2009 is affirmed.
Issued: April 13, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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.V., Appellant
and
DEPARTMENT OF ENERGY,
SOUTHEASTERN COURIER SECTION,
Oak Ridge, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Marshall Stair, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0952
Issued: February 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 23, 2020 appellant, through counsel, filed a timely appeal from a September 30,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

Appellant died after the filing of this appeal. As such, a substitute appellant is required to carry the appeal forward
as the Board’s jurisdiction was invoked during his lifetime. See D.V., Docket No. 20-1291 (issued September 14,
2021; N.D., Docket No. 14-1757 (issued June 2, 2015); Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly,
appellant’s spouse, E.V., is recognized by the Board as the substitute appellant for the purposes of carrying the appeal
forward.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 4
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $107,831.76, for which he was without fault,
because he concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period November 1, 2005 through
August 17, 2019, without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $500.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On November 30, 1990 appellant, then a 50-year-old nuclear materials courier, filed a
traumatic injury claim (Form CA-1) alleging that on November 26, 1990 he felt a sharp pain in his
left knee and leg when jogging during an employing establishment-sanctioned physical fitness
program while in the performance of duty. OWCP accepted the claim for herniated discs at L3-4
and L4-5, and paid appellant wage-loss compensation on the periodic rolls as of June 16, 2002.
On July 11, 2019 OWCP forwarded a Federal Employees Retirement System (FERS)/SSA
dual benefits form to SSA to obtain appropriate information for determination as to whether an
offset of compensation benefits was required.
On July 24, 2019 OWCP received from SSA a completed FERS/SSA dual benefits form,
dated July 14, 2019, which indicated that appellant had been in receipt of SSA age -related
retirement benefits since November 2005. The form reported appellant’s SSA age-related
retirement benefit rates with and without a FERS offset. Beginning November 2005, the SSA rate
with FERS was $1,590.50, and without FERS was $1,048.10; beginning December 2005, the SSA
rate with FERS was $1,655.70, and without FERS was $1,091.00; beginning December 2006, the
SSA rate with FERS was $1,710.30, and without FERS was $1,127.00; beginning December 2007,
the SSA rate with FERS was $1,749.60, and without FERS was $1,152.90; beginning
December 2008, the SSA rate with FERS was $1,851.00 and without FERS was $1,219.70;
beginning December 2009, the SSA rate with FERS was $1,851.00, and without FERS was
$1,219.70; beginning December 2010, the SSA rate with FERS was $1,851.00, and without FERS
was $1,219.70; beginning December 2011, the SSA rate with FERS was $1,917.60 and without
FERS was $1,263.60; beginning December 2012, the SSA rate with FERS was $1,950.10, and
without FERS was $1,285.00; beginning December 2013, the SSA rate with FERS was $1,979.30,
3

5 U.S.C. § 8101 et seq.

4

The Board notes that OWCP received additional evidence following the September 30, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

and without FERS was $1,304.20; beginning December 2014, the SSA rate with FERS was
$2,012.90, and without FERS was $1,326.30; beginning December 2015, the SSA rate with FERS
was $2,012.90, and without FERS was $1,326.30; beginning December 2016, the SSA rate with
FERS was $2,018.90, and without FERS was $1,330.20; beginning December 2017, the SSA rate
with FERS was $2,059.20, and without FERS was $1,356.80; and beginning December 2018, the
SSA rate with FERS was $2,116.80, and without FERS was $1,394.70.
In an August 26, 2019 letter, OWCP informed appellant that, effective August 18, 2019, it
would begin deducting the portion of SSA age-related retirement benefits attributable to his federal
service from his 28-day periodic compensation benefits. It noted that his current monthly SSA
age-related retirement benefit with FERS was $2,116.80 and without FERS was $1,394.70.
OWCP explained that the amount of FERS/SSA dual benefit to be deducted from appellant’s
FECA benefits was $722.10 per month, or $666.55 every 28 days. It explained that his new net
compensation payment would be $1,979.21 every 28 days.
On August 26, 2019 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $10,831.76 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period November 1, 2005
through August 17, 2019, to offset his SSA age-related retirement benefits that were attributable
to federal service. It explained that it had reduced his ongoing OWCP benefits for the periodic
rolls cycle effective August 18, 2019, and that an overpayment occurred for the period
November 1, 2005 through August 17, 2019. OWCP determined that appellant was without fault
in the creation of the overpayment because he relied on misinformation given in writing and there
was no evidence to demonstrate that he knew, or should have known, that an improper payment
had occurred. It informed him that, if he agreed with the overpayment amount, he could make a
payment online or send a check or money order for the full amount to OWCP. OWCP further
informed appellant that, if he disagreed with the overpayment amount, he could submit a
completed overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable
repayment method and request waiver of recovery of the overpayment. It noted that the Form
OWCP-20 required that he provide supporting financial documentation, including copies of
income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. Additionally, OWCP provided an overpayment action request form and
further notified appellant 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.
In an accompanying overpayment calculation memorandum, OWCP noted that the issue
was whether appellant was overpaid compensation for the period November 1, 2005 to August 17,
2019 in the amount of $10,831.76. It attached a FERS offset calculation worksheet, determined
the 28-day FERS offset amount for the days in each period, and computed a total overpayment
amount of $107,831.76. The offset calculation worksheet indicated that from November 1 through
30, 2005, appellant received an overpayment in the amount of $536.44; from December 1, 2005
through November 30, 2006, he received an overpayment in the amount of $6,795.02; from
December 1, 2006 through November 30, 2007, he received an overpayment in the amount of
$7,018.83; from December 1, 2007 through November 30, 2008, he received an overpayment in
the amount of $7,199.74; from December 1, 2008 through November 30, 2009, he received an
overpayment in the amount of $7,596.41; from December 1, 2009 through November 30, 2010, he
received an overpayment in the amount of $7,596.41; from December 1, 2010 through

3

November 30, 2011, he received an overpayment in the amount of $7,596.41; from December 1,
2011 through November 30, 2012, he received an overpayment in the amount of $7,891.12; from
December 1, 2012 through November 30, 2013, he received an overpayment in the amount of
$8,003.13; from December 1, 2013 through November 30, 2014, he received an overpayment in
the amount of $8,123.46; from December 1, 2014 through November 30, 2015, he received an
overpayment in the amount of $8,261.84; from December 1, 2015 through November 30, 2016, he
received an overpayment in the amount of $8,284.47; from December 1, 2016 through
November 30, 2017, he received an overpayment in the amount of $8,2 67.10; from December 1,
2017 through November 30, 2018, he received an overpayment in the amount of $8,451.96; and
from December 1, 2018 through August 17, 2019, he received an overpayment in the amount of
$6,189.43. OWCP determined that appellant was without fault in the creation of the overpayment.
It concluded that a preliminary overpayment determination was made that an overpayment had
occurred for the period November 1, 2005 to August 17, 2019, in the amount of $10,831.76.
On September 24, 2019 OWCP received a check from appellant in the amount of
$10,831.76.
By decision dated September 30, 2019, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $107,831.76 for the period November 1, 2005 through August 17, 2019, because he
concurrently received SSA age-related retirement benefits and FECA wage-loss compensation
benefits without a proper offset. It also found that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment. OWCP noted that as of the date
of the decision, no response had been received to the preliminary overpayment determination and
appellant had not requested waiver. It required recovery of the overpayment by deducting $500.00
every 28 days from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 7 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).

4

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation for the period
November 1, 2005 through August 17, 2019, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without an appropriate offset.
Appellant is precluded from simultaneously receiving FECA wage-loss compensation and
SSA age-related retirement benefits based on his federal service. 9 On July 13, 2019 SSA reported
that a portion of appellant’s monthly retirement benefit was attributable to his federal service.
Consequently, OWCP was obliged to offset his FECA wage-loss compensation by the amount of
SSA age-related retirement benefits attributable to his federal service.10 Therefore, the Board finds
that fact of overpayment is established.
The Board further finds that this case is not in posture for decision with respect to the
amount of the overpayment.
In overpayment cases, it is essential that OWCP provide the recipient of compensation with
a clear statement showing how the overpayment was calculated. 11 The Board notes that in the
August 26, 2019 preliminary overpayment determination, OWCP informed appellant that an
overpayment of compensation in the amount of $10,831.76 had been created because it had failed
to reduce his wage-loss compensation payments for the period November 1, 2005 through
August 17, 2019, to offset his SSA age-related retirement benefits that were attributable to federal
service. OWCP explained that he was without fault and that the overpayment occurred because
he relied on misinformation given in writing and there was no evidence to demonstrate he knew
or should have known that an improper payment had occurred. In the overpayment memorandum,
it also noted that the issue was whether appellant was overpaid compensation for the period
November 1, 2005 to August 17, 2019 in the amount of $10,831.76.
OWCP then completed a FERS offset calculation worksheet and computed a total
overpayment amount of $107,831.76. It concluded that appellant was without fault in the creation
of the overpayment due to the complexity in benefits administration , and that there was no
evidence to demonstrate that he knew, or should have known, that an improper payment had
occurred. OWCP further concluded that an overpayment had occurred for the period November 1,
2005 to August 17, 2019, in the amount of $10,831.76.

8

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

9

Id.

10

5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

11

See S.H., Docket No. 20-1189 (issued January 27, 2021); R.E., Docket No. 19-1583 (issued May 27, 2020); J.M.,
Docket No. 18-1505 (issued June 21, 2019); Teresa A. Ripley, 56 ECAB 528 (2005).

5

Appellant subsequently remitted a check for $10,831.76. The full amount of the
overpayment noted in the preliminary overpayment determination.
In the September 30, 2019 decision, OWCP finalized the overpayment determination and
found that an overpayment in the amount of $107,831.76 had occurred. It also noted that no
response had been received to the preliminary overpayment determination. However, the Board
notes that this was incorrect, as appellant responded to the preliminary overpayment determination
by remitting a check in the amount of $10,831.76.
The Board finds that OWCP has not adequately explained how the overpayment was
determined in light of the above-noted discrepancies in the determination of the overpayment
amount. The Board notes that OWCP did not acknowledge receipt of that check or subtract the
amount remitted from the overpayment due. The Board finds that appellant might have requested
a prerecoupment hearing, and or submitted financial documentation , if he had been clearly
informed that the amount of the overpayment was $107,831.76, rather than $10,831.76. It is
essential that OWCP provide the recipient of compensation with a clear statement showing how
the overpayment was calculated. 12 As the calculation of the overpayment was unclear, the Board
finds that OWCP has not met its burden of proof to establish amount of the overpayment.13
Accordingly, the Board finds that the case must be remanded to OWCP. On remand,
OWCP shall determine the proper amount of the overpayment of compensation based on the
correct rates provided by SSA for the period during which the overpayment occurred. It shall then
issue a new preliminary overpayment determination, with an overpayment action request form, a
Form OWCP-20, and instructions for appellant to provide supporting financial information. After
this, and other such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation , for which he
was without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period November 1, 2005 through August 17, 2019, without an
appropriate offset. The Board also finds that the case is not in posture for decision regarding the
amount of the overpayment.

12

See id.

13

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7