United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring, TX, Employer
__________________________________________

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

Docket No. 21-0342
Issued: March 15, 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 January 4, 2021 appellant filed a timely appeal from a November 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

2

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

3

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
4

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

5

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 The issue of whether an employee has the physical ability to perform
a modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
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. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
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 duty. 14 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.21 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

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

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1362
Issued: April 30, 2021

Case Submitted on the Record

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

On July 2, 2020 appellant filed a timely appeal from a June 26, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-1362.1
On May 22, 2020 appellant, then a 40-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed pain in right side of her back, under the shoulder
blade and neck due to factors of her federal employment, including repetitive heavy lifting,
suggesting that it may be due to increase in the volume of work. She noted that she first became
aware of her condition and its relationship to her federal employment on April 20, 2020. Appellant
stopped work on May 6, 2020 and returned on May 9, 2020 with restrictions.
In a development letter dated May 26, 2020, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and attached a questionnaire for her completion. A separate development letter
1

The Board notes that, following the June 26, 2020 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.

of even date was sent to the employing establishment requesting information surrounding the
circumstances of the alleged injury. OWCP afforded both parties 30 days to respond.
In a May 6, 2020 report, Dr. Jessica Bloom, specializing in family medicine, noted that
appellant was seen for right shoulder pain due to no specific injury. She related that appellant
performed a significant amount of repetitive heavy lifting at work. Dr. Bloom further indicated
that while appellant was left handed, she performed more work with her right arm, and her
deliveries had increased because of COVID-19. She noted that appellant complained of pain with
lifting overhead and reaching into the shoulder, right upper back, and neck, as well as headaches.
Dr. Bloom diagnosed right shoulder strain.
OWCP received a May 6, 2020 duty status report (Form CA-17) from Dr. Bloom who
noted that appellant had sustained injury due to repetitive shoulder motion, and prescribed
restrictions. In another form report dated May 6, 2020, Dr. Bloom related that appellant’s date of
injury was approximately April 15, 2020. She noted work restrictions and that appellant’s right
shoulder motion was reduced by 15 degrees for external rotation and abduction beyond 90 degrees
was limited by pain.
OWCP received a May 8, 2020 referral for physical therapy.
In a June 9, 2020 report, Dr. Robert Honey, a Board-certified family practitioner, noted
that appellant was seen for a follow-up visit due to a right shoulder strain. He recommended
continued physical therapy and referral to a chiropractor.
On June 25, 2020, OWCP received June 15, 2020 physical therapy notes, which noted that
appellant’s “symptoms are still primarily exacerbated by work activity, with extensive mail
delivery going on during the [COVID-19] crisis.”
By decision dated June 26, 2020, OWCP denied appellant’s occupational disease claim. It
noted receipt of a May 8, 2020 medical note and a Form CA-17 dated May 6, 2020. OWCP found
that appellant had not established fact of injury as the claimed work factors remained unclear.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,2 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its June 26, 2020 decision, OWCP indicated that the evidence received included a
May 8, 2020 note and a Form CA-17 dated May 6, 2020. However, appellant also submitted
several May 6, 2020 reports from Dr. Bloom, and June 15, 2020 physical therapy notes which
reference appellant’s specific work factors. As OWCP did not reference these additional medical

2

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

2

reports, it failed to follow its own procedures which require that all evidence submitted should be
reviewed and discussed in the decision.3
It is crucial that OWCP reference all relevant evidence received prior to the issuance of its
decision, as the Board’s decisions are final with regard to the subject matter appealed.4 The Board
finds that this case is not in posture for decision, as OWCP did not address the above-noted
evidence in its June 26, 2020 decision.5 On remand, following any further development as deemed
necessary, OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the June 26, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: April 30, 2021
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

3

All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012); A.C., Docket No. 20-0917 (issued January 27, 2021).
4

See D.S., Docket No. 20-0589 (issued November 10, 2020); C.S., Docket No. 18-1760 (issued November 25,
2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 2.
5

M.J., Docket No. 18-0605 (issued April 12, 2019); see V.C., Docket No. 16-0694 (issued August 19, 2016).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VA MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1903
Issued: March 25, 2021

Case Submitted on the Record

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

JURISDICTION
On September 16, 2019 appellant, through counsel, filed a timely appeal from a March 20,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted July 17, 2015 employment incident.
FACTUAL HISTORY
On July 21, 2015 appellant, then a 56-year-old food service worker, filed a traumatic injury
claim (Form CA-1) alleging that on July 17, 2015 she pulled a muscle in her neck, shoulder, and
head when she picked up a biscuit tray while in the performance of duty. She did not immediately
stop work.
In an undated statement, appellant indicated that on July 17, 2015 she was working on the
hot tray line serving breakfast when she grabbed a biscuit tray and felt burning and pain in her
neck, shoulder, and head. She alerted her supervisor, but continued to work through the end of her
shift.
In a duty status report (Form CA-17) dated July 23, 2015, Dr. Sara Vizcay, a Boardcertified family practitioner, diagnosed cervical disc syndrome, neuritis, lumbar disc disease, and
bilateral shoulder tendinitis. She advised that appellant had severe muscle spasm and decreased
range of motion of the bilateral upper and lower extremities and was off work.
In a development letter dated August 4, 2015, OWCP informed appellant that additional
evidence was needed to establish her claim. It advised appellant of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded her 30 days to
submit the necessary evidence.
In a report dated July 23, 2015, Dr. Vizcay noted that she had treated appellant for neck
pain, bilateral upper extremity radiculitis, bilateral shoulder pain, and weakness, which developed
on July 17, 2015 when she attempted to pull a biscuit tray from a warmer rack, which was located
on a top shelf while at work. Appellant described a whiplash kind of injury when she twisted her
trunk in a sudden movement. Findings on physical examination revealed tenderness of the cervical
spine and both shoulders, spasm of the paraspinal and supraspinatus muscles, decreased range of
motion of the shoulders, antalgic gait, and diminished sensation in the right leg and foot.
Dr. Vizcay diagnosed cervical disc disease with myelopathy, bilateral upper and lower extremity
radiculopathy, bilateral shoulder impingement, lumbar disc syndrome with myelopathy, and
depression and anxiety secondary to chronic pain and work-related injuries. She opined that
appellant’s whiplash maneuver when reaching for the biscuit rack and attempting to pull a stuck
tray of biscuits out of the rack caused her to twist her torso in a sudden movement and overstretch
muscles, tendons, and ligaments causing her injuries. Dr. Vizcay advised that appellant was
temporarily totally disabled.
On July 24, 2015 appellant underwent diagnostic testing. A magnetic resonance imaging
(MRI) scan of the left shoulder revealed osteophyte from the acromioclavicular (AC) joint,
tendinosis, tear of the inferior glenohumeral ligament, and tear of the posterior segment of the
glenoid labrum. A cervical spine MRI scan revealed broad-based disc at C5-6 and foraminal
stenosis at C3-4, C4-5, C5-6, and C6-7 on the left. A right shoulder MRI scan revealed mild
degenerative change at the AC joint, possible tear or tendinosis of supraspinatus tendon, fluid in
2

the subacromial subdeltoid bursa, tear of the glenohumeral ligament, and anterior segment of the
glenoid labarum. A lumbar spine MRI scan dated August 13, 2015 revealed bilateral disc
protrusions at L3-4, broad-based disc bulge at L4-5 and L5-S1, and bilateral foraminal stenosis.
On August 19, 2015 Dr. Kevin Scott, a Board-certified orthopedist, evaluated appellant’s
shoulders and upper extremities. Appellant reported pulling a tray from a rack at work when she
felt pain in her neck and both shoulders. Dr. Scott diagnosed cervical disc disease with
myelopathy, herniated disc, bilateral upper extremity radiculopathy, bilateral shoulder ligament
tear, bilateral shoulder impingement, lumbar disc syndrome with myelopathy, herniated disc, and
bilateral lower extremity radiculopathy. He opined that the force and sudden movements of
appellant in pulling the tray of biscuits from above her shoulders caused her to hurt both shoulders,
cervical spine, and lumbar spine. In a work capacity evaluation (Form OWCP-5), Dr. Scott
diagnosed cervical disc syndrome, myelopathy, bilateral shoulder and right upper extremity
radiculitis. He took appellant off work for four weeks.
By decision dated September 8, 2015, OWCP found that the evidence of record failed to
establish that the July 17, 2015 employment incident occurred as alleged. It noted that the
mechanism of injury claimed by appellant was not consistent with that provided by Dr. Vizcay
and Dr. Scott. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
In a Form OWCP-5c dated September 15, 2015, Dr. Vizcay noted that appellant was
temporarily totally disabled. In a Form CA-17 report dated November 18, 2015, Dr. Scott also
found appellant to be temporarily totally disabled.
On September 29, 2015 appellant requested reconsideration of the September 8, 2015
decision. OWCP continued to receive evidence, including physical therapy notes detailing
treatment for reduction of pain in appellant’s neck, shoulders, and back.
By decision dated December 9, 2015, OWCP modified the September 8, 2015 decision,
finding that appellant had factually established that the incident occurred on July 17, 2015, as
alleged. It determined, however, that the medical evidence was insufficient to establish that she
sustained a diagnosed condition causally related to the accepted employment incident.
A September 30, 2016 submission revealed that on August 20, 2015 appellant underwent
an electromyogram (EMG), which revealed evidence of carpal tunnel syndrome, possible
cervicobrachial lesions, and ulnar neuropathy.
On December 4, 2015 appellant was treated by Dr. Jay Parekh, an osteopath and specialist
in anesthesiology, for neck and shoulder pain. She reported that on July 17, 2015 she was
attempting to pull a large biscuit tray off a shelf using a jerking motion and experienced pain in
her neck and shoulder blades. Dr. Parekh diagnosed cervical disc disease, cervical facet joint
syndrome, shoulder impingement, wrist tenosynovitis, left hand injury, anxiety, cervical disc
herniation, cervicogenic headaches, and cervical spondylosis. He opined, within a reasonable
degree of medical probability, that appellant suffered an injury to the cervical spine as a result of
her work-related injury. Dr. Parekh recommended physical therapy and cervical facet injections.
Dr. Vizcay treated appellant on April 6, 2016 and diagnosed cervical disc syndrome with
myelopathy, bilateral upper extremities radiculopathy, left and right shoulder tendinitis and
3

bursitis, bilateral shoulder tendon tear, and depression and anxiety secondary to chronic pain and
work-related injuries. She provided her medical opinion that appellant suffered from shoulder
impingement, tendinitis, and tear of soft tissue, which was caused by forceful exertion of her arm
when she reached overhead to lift and pull out a stuck industrial food tub filled with biscuits on
July 17, 2015. Dr. Vizcay further opined that the sudden hyperflexion and hyperextension and
sudden backward and forward maneuver caused the injuries to the neck and body consistent with
bulging, protrusion, and herniation in the vertebrae as a result of the work injury on July 17, 2015.
On May 9, 2016 Dr. Bhanatkumar D. Patel, a Board-certified neurologist, treated appellant
for chronic neck pain and low back pain. Appellant reported having to forcefully pull an industrial
food tub filled with biscuits that was located above her shoulders. Dr. Patel opined that, after
reviewing a picture of a rack tray, reading witness statements, diagnostic studies, and medical
reports, the sudden movement and back and forth in trying to pull the stuck food tub caused a
whiplash-type injury to appellant’s cervical spine. He further noted that the sudden twisting of her
trunk to avoid dropping the food tub caused her lumbar condition.
Appellant requested reconsideration on July 27, 2016. OWCP continued to receive
evidence, including an August 29, 2016 reexamination report from Dr. Vizcay where she noted
that appellant continued to have neck, shoulder, and back pain. Dr. Vizcay opined that appellant
was totally temporarily disabled.
By decision dated October 5, 2016, OWCP again modified its September 8, 2015 decision,
finding that the evidence of record failed to establish that the employment incident occurred on
July 17, 2015, as alleged. It noted that the mechanism of injury claimed by appellant was not
consistent with that provided by Drs. Vizcay, Scott, Patel, and Parekh.
In a statement dated July 17, 2015, J.R., appellant’s coworker, noted that appellant reported
injuring her neck and shoulder while pulling out a pan from a warmer on the top shelf. In a
statement dated August 12, 2015, J.D., another coworker, noted that on July 17, 2015 she walked
by appellant who informed her that she injured her shoulders and neck while she was taking out
biscuits.
OWCP received an incident report which noted that on July 17, 2015 appellant was in the
canteen and while reaching over to get a tray she sprained her neck. It was noted that appellant
provided several versions of the incident and did not immediately report the incident to her
supervisor.
Appellant received physical therapy treatment from December 29, 2016 to June 14, 2017.
On March 10, 2017 Dr. Vizcay continued to treat appellant for injuries sustained at work
on July 17, 2015.
In an appeal request form dated September 13, 2017, received by OWCP on September 19,
2017, appellant, through counsel, requested reconsideration of the October 5, 2016 decision.
By decision dated December 20, 2017, OWCP modified the October 5, 2016 decision,
finding that appellant had factually established that the incident occurred as alleged on
July 17, 2015. It determined, however, that the medical evidence was insufficient to establish that
she sustained a diagnosed condition causally related to the accepted employment incident.
4

On December 20, 2018 appellant requested reconsideration. She submitted an October 14,
2015 report from Dr. Scott who evaluated appellant’s bilateral shoulders and upper extremity.
Dr. Scott diagnosed cervical disc disease with myelopathy, herniated disc, bilateral upper
extremity radiculopathy, bilateral shoulder ligament tear, bilateral shoulder impingement, lumbar
disc syndrome with myelopathy, herniated disc, and bilateral lower extremity radiculopathy and
advised that appellant was totally disabled.
By decision dated March 20, 2019, OWCP denied modification of the decision dated
December 20, 2017.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 There are 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.8 The
second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
3

Id.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In her report dated July 23, 2015, Dr. Vizcay opined that appellant’s whiplash maneuver,
when reaching for the biscuit rack and attempting to pull a stuck tray of biscuits out of the rack,
on the date of injury caused her to twist her torso in a sudden movement and overstretch muscles,
tendons, and ligaments resulting in her diagnosed conditions. Similarly, on April 6, 2016
Dr. Vizcay further opined that the sudden hyperflexion and hyperextension and sudden backward
and forward maneuver caused the injuries to the neck and body consistent with bulging, protrusion,
and herniation in the vertebrae as a result of the work injury on July 17, 2015.
The Board finds that the July 23, 2015 and April 6, 2016 reports from Dr. Vizcay, are
sufficient to require further development of the medical evidence. Dr. Vizcay provided an
understanding of the medical record and case history. Her reports indicates a pathophysiological
explanation as to how appellant, by pulling a tray of biscuits from above her shoulders in a sudden
movement resulted in a diagnosis of a shoulder, neck, and/or head injuries. The Board has long
held that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that which is necessary
to convince the adjudicator that the conclusion drawn is rational, sound, and logical.13
Accordingly, Dr. Vizcay’s medical opinions are therefore, sufficient to require further
development of appellant’s claim.14
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts. Its referral physician shall provide a
well-rationalized opinion as to whether her diagnosed conditions of shoulder, neck, and/or head
injuries were causally related to or aggravated by the accepted July 17, 2015 employment incident.
If the physician opines that the diagnosed conditions are not causally related, he or she must
12

Id.

13
D.S., Docket No. 20-1060 (issued December 22, 2020); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
14

J.H., supra 5; D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12,
2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
15

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
16
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19,
2010); John J. Carlone, 41 ECAB 354 (1989).

6

explain with rationale how or why the opinion differs from the opinions of Dr. Vizcay. After this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 25, 2021
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, INSPECTION
SERVICE, Washington, DC, Employer
__________________________________________

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

Docket No. 17-1111
Issued: November 28, 2017

Case Submitted on the Record

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

JURISDICTION
On April 15, 20171 appellant filed a timely appeal from an October 18, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)2 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 of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 18, 2016, the date of OWCP’s nonmerit decision, was
April 16, 2017. As this fell on a Sunday, the appeal would have been due the following business day, which was
Monday, April 17, 2017. Since using April 28, 2017, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date
of the U.S. Postal Service postmark is April 15, 2017 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 14, 2007 appellant, then a 46-year-old postal police officer, filed a traumatic
injury claim (Form CA-1) alleging that she was involved in a rear-end automobile accident on
February 11, 2007, resulting in trauma to her upper and lower extremities, head, neck, back, and
chest. She stopped work on February 11, 2007. On April 24, 2007 OWCP accepted appellant’s
claim for the following diagnoses: sprain of the lumbosacral joint ligament; bilateral sprain of
the knee and leg; bilateral sprain of the shoulder and upper arm; closed fracture of the ribs;
sprain of the neck; and sprain of the thoracic back region. Appellant received wage-loss
compensation benefits on the supplemental rolls as of March 29, 2007, and on the periodic rolls
as of January 19, 2008. On April 30, 2008 OWCP accepted a consequential condition of
depression. On June 20, 2008 it again expanded acceptance of the claim to include posttraumatic stress disorder.
In a report dated June 5, 2013, Dr. Justin D. Saliman, a Board-certified orthopedic
surgeon, examined appellant and observed that she had continuing neck pain, migraines, lower
extremity parasthesias, burning sensations, and numbness. He opined that the new onset of these
symptoms may be related to a neurogenic source, such as a Chiari malformation, or
lumbar/thoracic disc disease.
By letter dated June 27, 2013, OWCP referred appellant to a second opinion examiner to
determine whether she was eligible for a vocational rehabilitation program and whether she
continued to have residuals from her diagnosed orthopedic conditions.
In a report dated July 23, 2013, Dr. Frederic G. Nicola, Board-certified in orthopedic
surgery and serving as an OWCP second opinion physician, reviewed appellant’s medical
records and conducted a physical examination. He diagnosed neck pain caused by radiculopathy
with Chiari malformation and syrinx and also lumbar degenerative disc disease. Dr. Nicola
opined that appellant’s diagnosed neck pain with radiculopathy with Chiari malformation and
syrinx, as well as her lumbar degenerative disc disease, were all medically unrelated to the
February 11, 2007 work-related injury. He noted that these diagnoses were not established
earlier because they became symptomatic as time progressed, after a magnetic resonance
imaging (MRI) scan of appellant’s cervical spine was obtained. Dr. Nicola reported that
appellant had no physical limitations from the February 11, 2007 employment injury, and
concluded that, while her Chiari syrinx malformation rendered her temporarily totally disabled, it
was not on an industrial basis.
In a supplemental report dated August 12, 2013, Dr. Nicola noted his opinion that
appellant was not a candidate for vocational rehabilitation due to her Chiari malformation. He
noted that appellant’s conditions of bilateral shoulder sprain, lumbosacral sprain, bilateral knee
sprain, fractured ribs, neck sprain, and thoracic sprain had resolved. Dr. Nicola noted that if she
was able to enter a sedentary vocational rehabilitation program, she may be eligible for
vocational rehabilitation.
On December 18, 2013 Dr. Saliman diagnosed appellant with Chiari malformation. He
noted that appellant had been consistent from the start of her medical treatment that she had no
symptoms until the employment injury of February 11, 2007. Dr. Saliman also noted that, to his
knowledge, she had not been evaluated with Chiari malformation prior to her employment
2

injury. He opined that her symptoms were caused by the employment incident of
February 11, 2007.
In a report dated February 24, 2014, Dr. Saliman reiterated his diagnosis of Chiari
malformation. He further reiterated his opinion that her symptoms were caused by her workrelated injury.
On March 26, 2014 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits for the accepted orthopedic conditions, finding that the weight of the
medical evidence established no continuing work-related residuals from these conditions. It
noted that her claim remained open for payment of medical and wage-loss compensation benefits
based on her accepted conditions of depression and post-traumatic stress disorder. OWCP based
its proposed termination on the medical reports of Dr. Nicola.
In a statement dated April 25, 2014, appellant argued that the direct cause of her
conditions was the motor vehicle incident of February 11, 2007. She reviewed the history of her
conditions and noted that she still suffered chronic pain, migraines, unequal balance, and
herniated discs as a result of that incident. Appellant disagreed with the proposed termination
and stated that she had not been diagnosed with Chiari malformation prior to the employment
incident.
Appellant submitted an April 16, 2014 report from Dr. Saliman in which he diagnosed
Chiari malformation directly related to a work-related injury in 2007. Dr. Saliman noted that she
continued to participate in physical therapy and was ataxic. He provided his opinion that
appellant’s original diagnoses were in error, and that the Chiari malformation had caused all her
symptoms to date. Dr. Saliman opined that because she had not been evaluated for Chiari
malformation prior to the date of injury, he believed that her symptoms were related to the
employment incident of February 11, 2007.
In a report dated May 22, 2014, Dr. Saliman reiterated his opinion on the cause of her
symptoms as being work related and reiterated his diagnosis of Chiari malformation. He further
noted that physical therapy was beneficial for management of her symptoms.
By decision dated August 18, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits related to her lumbosacral, shoulder, knee, ribs, neck, and
thoracic conditions effective that date. It noted that Dr. Saliman did not provide support for his
opinion that appellant continued to have work-related bilateral shoulder sprains, lumbosacral
sprain, bilateral knee sprain, fractured ribs, neck pain, or thoracic sprain conditions. OWCP
found that Dr. Saliman’s explanation of causation was deficient, as he merely noted that the
Chiari malformation must be related to the employment injury of February 11, 2007 because she
had not been evaluated for Chiari malformation prior to that date. It also noted that Dr. Saliman
did not respond to Dr. Nicola’s reports. OWCP found that the weight of medical evidence rested
with Dr. Nicola.
On September 18, 2014 appellant requested a review of the written record by an OWCP
hearing representative.
In a report dated August 6, 2014, Dr. Saliman reiterated his diagnosis of Chiari
malformation and referred her to a neurologist for evaluation.
3

On December 17, 2014 OWCP denied appellant’s request for a review of the written
record as it was untimely filed. By letter dated June 10, 2015, received on June 16, 2015,
appellant requested reconsideration of the termination of her medical and wage-loss
compensation benefits for her orthopedic injuries. She argued that Dr. Nicola had been
prejudiced in his evaluation of her condition and made false allegations. Appellant stated that
she still had residuals from the February 11, 2007 employment injury and never had any medical
problems prior to that injury related to her back, herniated discs, and shoulder strain. She argued
that she was entitled to a referee examination because there was a conflict of medical opinion in
her case.
In a report dated September 18, 2014, Dr. Saliman reiterated his opinion that appellant’s
symptoms were related to the employment injury of February 11, 2007, because appellant did not
suffer any symptoms and she had not been evaluated for Chiari malformation prior to the date of
injury.
By decision dated October 18, 2016, OWCP denied appellant’s request for
reconsideration. It found that appellant had not submitted sufficient evidence to demonstrate that
OWCP’s determination that the weight of medical evidence rested with Dr. Nicola was in error.3
Furthermore, OWCP found the report of September 18, 2014 was cumulative of the other
evidence of record, because it presented the same opinion and rationale as in the reports of
April 16 and August 6, 2014, which had already been reviewed by OWCP.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
The last merit decision on the relevant issue in this appeal was OWCP’s decision dated
August 18, 2014, in which it terminated appellant’s wage-loss compensation and medical
3

On February 16, 2017 OWCP informed appellant that federal regulations required her to report any earnings and
employment during the previous year, enclosing a Form CA-1032 for that purpose. It notified her that she had to
fully answer all questions on the Form CA-1032 and return the statement within 30 days or her benefits would be
suspended. The letter was sent to appellant’s last known address. Appellant did not respond. By decision dated
March 28, 2017, OWCP suspended appellant’s compensation benefits, effective April 1, 2017, for failing to submit
the Form CA-1032 as requested. It noted that if she completed and returned an enclosed copy of the Form CA1032, her compensation benefits would be restored retroactively to the date they were suspended. The March 28,
2017 decision has not been appealed to the Board and is not considered within this appeal.
4

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

5

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

4

benefits related to her lumbosacral, shoulder, knee, ribs, neck, and thoracic conditions effective
that date. The issue on reconsideration was whether appellant submitted sufficient evidence
and/or argument to warrant merit review of OWCP’s decision to terminate her medical and
wage-loss compensation benefits on August 18, 2014.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim.
With her request for reconsideration, which OWCP received on June 16, 2015, appellant
attached a letter in which she argued that Dr. Nicola had been prejudiced in his evaluation of her
condition and made false allegations. She asserted that she still had residuals from the
February 11, 2007 employment injury and never had any medical problems prior to the date of
injury related to her back, herniated discs, and shoulder strain. Appellant argued that she was
entitled to a referee examination because there was a conflict of medical opinion as to whether
she had residuals of the accepted orthopedic conditions.
As appellant did not provide any additional evidence or legal argument in support of her
assertions regarding Dr. Nicola, her arguments have no reasonable color of validity and are thus
insufficient to require OWCP to reopen her claim for merit review.6 The issue of whether there
was a conflict of medical opinion on the issue of remaining residuals from her accepted
orthopedic conditions had already been considered in OWCP’s August 18, 2014 decision in
which OWCP found that the weight of medical evidence rested with Dr. Nicola. Appellant’s
argument is, therefore, not a relevant legal argument not previously considered by OWCP.7
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, or advance a new and relevant legal argument not previously considered. Thus, she is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish
that OWCP’s termination decision of August 18, 2014 was incorrect. A claimant may also be
entitled to a merit review by submitting relevant and pertinent new evidence, but appellant did
not submit any such evidence in support of her claim.
Appellant attached a medical report from Dr. Saliman dated September 18, 2014 in which
he reiterated his opinion that appellant’s symptoms were related to the employment injury of
February 11, 2007 because appellant did not suffer any symptoms, and she had not been
evaluated for Chiari malformation prior to the date of injury. Dr. Saliman’s explanation of his
medical opinion on causation was identical to his explanation in the reports of April 16 and
August 6, 2014. As such, Dr. Saliman’s report dated September 18, 2014 did not qualify as
relevant and pertinent new evidence, because it was duplicative to reports that had already been
considered at the time of the August 18, 2014 termination decision. Evidence or argument which

6

See Lovetta V. Brown, Docket No. 00-1097 (issued April 26, 2002).

7

Supra note 3.

5

repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case.8
As appellant did not show that OWCP erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent new evidence not previously considered, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 28, 2017
Washington, DC

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

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

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

8

See S.E., Docket No. 16-1077 (issued October 26, 2016).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Goodyear, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1218
Issued: August 22, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 5, 2015 appellant filed a timely appeal of two January 23, 2015 merit decisions
and a March 31, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied her requests for a review of the
written record as untimely under 5 U.S.C. § 8124(b); and (2) whether appellant has established
disability for intermittent periods from September 11 to October 3, 2014 and commencing
October 20, 2014 due to her accepted employment injury.
FACTUAL HISTORY
On March 18, 2014 appellant, then a 57-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that on September 16, 2011 she first became aware of her
1

5 U.S.C. § 8101 et seq.

medial and lateral epicondylitis of the right hand and bilateral carpal tunnel syndrome. She
further alleged that her conditions were caused or aggravated by casing mail for six hours a day.
On March 18, 2014 appellant accepted the employing establishment’s job offer for a fulltime modified position. On April 9, 2014 she underwent right and left carpal tunnel release
performed by Dr. Matthew T. Weichbrodt, an attending osteopath specializing in orthopedic and
hand surgery.
On June 16, 2014 OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome.
On October 17 and 23, 2014 appellant filed claims for compensation (Forms CA-7) for
periods of leave without pay (LWOP) from September 11 to October 3 and October 6
to 17, 2014.
A time analysis form (Form CA-7a) dated October 17, 2014 showed that appellant
worked six hours a day from September 11 to 19 and September 22 to October 3, 2014.
Appellant claimed compensation for the hours not worked to attend therapy. The employing
establishment certified 14 hours of LWOP claimed from September 11 to 19, 2014 and 18 hours
of LWOP claimed from September 22 to October 3, 2014. It stated that appellant was paid for
her evaluated hours. An October 21, 2014 Form CA-7a showed that she worked six hours a day
on October 6, 7, 9, 10, and from October 14 to 17, 2014 and claimed compensation for the hours
not worked to attend therapy. The employing establishment certified 16 hours of LWOP and
stated that appellant was paid 8 hours of sick leave. It also stated that she was paid her evaluated
hours. The employing establishment challenged eight hours of sick leave used on October 8,
2014 for therapy.
By letters dated October 28, 2014, OWCP informed appellant of the evidence needed to
support her claims.
On November 6, 2014 appellant filed a Form CA-7 for compensation for LWOP from
September 22 to October 31, 2014. A November 7, 2014 Form CA-7a indicated that she worked
six hours a day on October 20, 21, 2014 and from October 23 to 29, 2014, and three hours on
October 31, 2014. Appellant claimed compensation for the hours not worked due to her
disability and a medical appointment. The employing establishment certified 19 hours of LWOP
and challenged 5 hours of LWOP claimed on October 31, 2014 to attend a medical appointment.
It also questioned appellant’s six-hour workdays, stating that there was no medical evidence of
record to support the reduction in her work hours.
In a December 3, 2014 duty status report (Form CA-17), Dr. John R. Monroe, a Boardcertified family practitioner, diagnosed carpal tunnel syndrome due to repetitive motion. He
advised that appellant could work six hours a day with restrictions. In a progress note also dated
December 3, 2014, Dr. Monroe provided appellant’s history. He reported findings on physical
examination and diagnosed carpal tunnel syndrome and hand pain. Dr. Monroe advised that
appellant could work six to eight hours a day with restriction.
By decision dated January 23, 2015, OWCP denied appellant’s claim for intermittent
periods of wage loss during the period September 11 to October 3, 2014 while attending therapy.
It found that she had failed to submit any evidence to establish that disability was for treatment
for her accepted employment-related condition on the dates and during the hours claimed.
2

In another decision of even date, OWCP denied appellant’s claim for intermittent periods
of compensation for LWOP commencing October 20, 2014 due to work restrictions. It found
that the medical evidence failed to establish any work restrictions related to her accepted work
injury.
By appeal request forms dated March 3, 2015 and containing an illegible postmark,
OWCP’s Branch of Hearings and Review received on March 10, 2015, a request for review of
the written record by an OWCP hearing representative regarding both of the January 23, 2015
decisions. Additional evidence was submitted.
In a decision dated March 31, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s requests for a review of the written record, finding that the requests were not made
within 30 days of the January 23, 2015 decisions. It further determined that the issues in the case
could equally well be addressed by requesting reconsideration and submitting evidence not
previously considered regarding her claim for disability.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on her
claim before a representative of the Secretary.2
Section 10.615 of the federal regulations implementing this section of FECA provides
that, a claimant shall be afforded a choice of an oral hearing or a review of the written record.3
OWCP regulations provide that the request must be sent within 30 days of the date of the
decision for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.4
OWCP has discretion, however, to grant or deny a request that is made after this 30-day period.5
In such a case, it will determine whether to grant a discretionary hearing and, if not, will so
advise the claimant with reasons.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant’s requests for a review of
the written record regarding its January 23, 2015 decisions were untimely filed.
Appellant’s March 3, 2015 requests for a review of the written record were made more
than 30 days after the date of issuance of OWCP’s prior decisions dated January 23, 2015. The
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

6

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

3

requests contained an illegible postmark and were not received until March 10, 2015. Section
8124(b)(1) is unequivocal on the time limitation for requesting a hearing.7 Because the
applications were not timely filed within 30 days of the January 23, 2015 decisions, appellant
was not entitled to a review of the written record as a matter of right.
OWCP has the discretionary power to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. In each of its
January 23, 2015 decisions, it considered the matter in relation to the issues involved and
determined that the issues in the case could equally well be addressed by submitting additional
evidence to OWCP with a reconsideration request. The Board has held that the only limitation
on OWCP’s discretionary authority is reasonableness. An abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deduction from established facts.8 In the present
case, the evidence of record does not establish that OWCP committed any action in connection
with its denial of appellant’s requests for a review of the written record which could be found to
be an abuse of discretion. Accordingly, OWCP properly denied her requests for a review of the
written record as untimely under section 8124 of FECA.
LEGAL PRECEDENT -- ISSUE 2
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.9 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.10 Whether a particular injury causes an employee
disability from employment is a medical issue which must be resolved by competent medical
evidence.11 Whether a particular injury causes an employee to be disabled for work and the
duration of that disability, are medical issues that must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.12
For each period of disability claimed, the employee has the burden of establishing that
she was disabled from work as a result of the accepted employment injury.13 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would

7

See William F. Osborne, 46 ECAB 198 (1994).

8

See L.W., 59 ECAB 471 (2008); André Thyratron, 54 ECAB 257 (2002).

9

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

10

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

11

Donald E. Ewals, 51 ECAB 428 (2000).

12

Tammy L. Medley, 55 ECAB 182 (2003); see id.

13

See Amelia S. Jefferson, 57 ECAB 183 (2005). See also 20 C.F.R. § 10.501(a).

4

essentially allow an employee to self-certify his or her disability and entitlement to
compensation.14
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence.15 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.16
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome while working
as a rural mail carrier. She claimed compensation for intermittent periods of disability from
September 11 to October 3, 2014 and commencing October 20, 2014. OWCP denied appellant’s
claimed compensation for disability compensation, finding that the evidence was insufficient to
establish that the disability was due to her accepted bilateral carpal tunnel syndrome. Appellant
has the burden of establishing by the weight of the substantial, reliable, and probative evidence, a
causal relationship between her claimed disability and the accepted condition.17 The Board finds
that she failed to submit sufficient medical evidence to establish employment-related disability
for the periods claimed, due to her accepted injury.
Dr. Monroe’s December 3, 2014 report and progress note found that appellant had carpal
tunnel syndrome due to repetitive motion. In the December 3, 2014 Form CA-17 report, he
advised that she could work six hours a day with restrictions. In the December 3, 2014 progress
note, Dr. Monroe advised that appellant could work six to eight hours a day with restrictions.
The Board notes that appellant performed full-time modified work as of June 16, 2014.
Dr. Monroe did not provide an opinion stating that appellant’s reduced work hours were caused
or contributed to by the accepted work exposure or explain the discrepancy between his two
reports regarding her work ability. The Board has held that a physician’s opinion, which does
not address causal relationship, is of diminished probative value.18 The Board has further held
that a medical opinion not supported by medical rationale is of little probative value.19 Thus,
Dr. Monroe’s reports are insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

14

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

15

See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
16

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005).

17

Alfredo Rodriguez, 47 ECAB 437 (1996).

18

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

19

Caroline Thomas, 51 ECAB 451 (2000).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for a review of the
written record as untimely under 5 U.S.C. § 8124(b)(1). The Board further finds that appellant
has failed to establish intermittent periods of total disability from September 11 to October 3,
2014 and commencing October 20, 2014 due to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 31 and January 23, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6