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

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

Docket No. 14-1848
Issued: August 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2014 appellant filed a timely appeal from April 3 and May 14, 2014 merit
decisions 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 determined appellant forfeited her
compensation from December 13, 2010 to March 11, 2013; (2) whether OWCP properly
determined an overpayment of compensation in the amount of $78,941.92 was created;
(3) whether OWCP properly found appellant at fault in creating the overpayment and therefore
not entitled to waiver of recovery of the overpayment; and (4) whether OWCP properly
determined the overpayment would be recovered by deducting $2,110.00 from appellant’s
continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2003 appellant, then a 50-year-old window clerk, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on February 12, 2003 when a customer
pushed her into a metal divider.2 The claim was accepted for subluxations of the lumbar,
cervical, and thoracic spine. Appellant stopped working on March 30, 2003 and began receiving
wage-loss compensation on the periodic rolls.
OWCP sent appellant (Form CA-1032) that requests information, inter alia, regarding
employment activity. The form covers a 15-month period and specifically asks the recipient
whether she worked for any employing establishment, whether she was “self-employed or
involved in any business enterprise” in the last 15 months. In a CA-1032 form signed on
March 13, 2012, appellant responded “no” with respect to any employment or involvement in a
business enterprise. She also responded “no” regarding employment activity in a CA-1032 form
dated March 11, 2013.
On March 31, 2014 OWCP received a 54-page March 24, 2014 report from the
employing establishment Office of Inspector General (OIG) regarding appellant’s involvement in
Internet sales. According to the report, appellant was engaged in selling items on eBay with a
registered PayPal account and eBay profile. The document indicates that during the period
December 23, 2011 to April 23, 2012, she sold 71 items on eBay.
By decision dated April 3, 2014, OWCP found that appellant had forfeited her
compensation from December 13, 2010 to March 11, 2013. It found that she had earnings that
were knowingly omitted from the CA-1032 forms signed March 13, 2012 and March 11, 2013.3
In a preliminary determination dated April 3, 2014, OWCP found that an overpayment of
compensation in the amount of $78,941.92 was created. It indicated that this was the gross
compensation paid from the current claim during the period December 13, 2010 to
March 11, 2013.4 In addition, OWCP made a preliminary determination that appellant was at
fault because she made an incorrect statement as to a material fact that she knew or should have
known was incorrect. OWCP pointed out that appellant was aware or reasonably should have
been aware that she was to report all earnings and employment activities. It enclosed an
overpayment recovery questionnaire requesting financial information, stating that such
information was necessary to determine a fair repayment method.
On April 23, 2014 appellant submitted a statement from an Allan Pisano, who stated that
the eBay auctions belonged to him. Mr. Pisano acknowledged that payments were received into
2

Appellant had a prior occupational disease claim filed on May 27, 1998, accepted for mood disorder secondary
to sleep deprivation. OWCP issued forfeiture and overpayment decisions with respect to this claim and the Board
reviewed those decisions under Docket No. 14-1847 (issued January 9, 2015).
3

OWCP also issued a similar forfeiture decision on April 11, 2014 with respect to the occupational disease claim
filed in May 1998. See id.
4

OWCP indicated that appellant was paid $561.21 in gross compensation from December 13 to 18, 2010,
$78,181.00 from December 19, 2010 to March 9, 2013, and $199.71 from March 10 and 11, 2013.

2

appellant’s PayPal account and transferred to her bank account, but this was done because at that
time he did not have eBay, PayPal or bank accounts. He asserted that appellant was just helping
a friend and did not make any money.
By decision dated May 14, 2014, OWCP finalized its preliminary determination of a
$78,941.92 overpayment of compensation. It found that appellant was required to report her
business activity regarding her eBay account, even if it were for a friend. In addition, OWCP
denied waiver of recovery of the overpayment, finding that she was at fault in creating the
overpayment. With respect to repayment, it indicated that the overpayment would be recovered
by deducting $2,110.00 from each 28-day compensation payment.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8106(b) provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies.… An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings; forfeits his
right to compensation with respect to any period for which the affidavit or
report was required.”
ANALYSIS -- ISSUE 1
In the present case, OWCP found that appellant failed to disclose earnings on CA-1032
forms signed March 13, 2012 and March 11, 2013.5 On these forms appellant stated that she was
not self-employed or involved in a business enterprise. The period covered by each form is 15
months prior to the signature date.
The OIG report dated March 24, 2014, clearly documents that appellant had an eBay
account and under this account conducted numerous sales of items on eBay. For the period
December 23, 2011 through April 23, 2012, the report documented 71 sales transactions. In
S.R.,6 another eBay case, the claimant had an eBay account and the record documented sales to
the account. The Board found that the claimant should have reported the earnings on the CA1032 forms.
Appellant does not contest that the sales were made. She submitted a brief statement
from Mr. Pisano stating that the sales transactions were actually his items and her accounts were
used because he did not have such accounts. This statement does not establish that appellant was
not involved in a business enterprise. It confirms that she did have earnings as it acknowledges
5

OWCP made similar findings under the prior occupational disease claim filed in May 1998. The Board’s
forfeiture issue analysis in the current case is also provided under Docket No. 14-1847 (issued January 9, 2015).
6

Docket No. 07-618 (issued July 10, 2007).

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that payments were sent to her PayPal account and then transferred to her bank account. There is
no documentation of record to support a finding that appellant had no actual earnings from these
eBay sales. The CA-1032 explains that any involvement in a business enterprise must be
reported. Appellant should have reported her eBay business activity on the CA-1032 forms
signed March 13, 2012 and March 11, 2013. The documented sales activity occurred during the
15-month period covered by each CA-1032 form. The Board finds the evidence of record
establishes that appellant omitted earnings on these forms.
The next question is whether the omission of the earnings was “knowingly” made. The
term “knowingly” is defined in the regulations governing administration of claims filed under
FECA as “[w]ith knowledge, consciously, willfully, or intentionally.”7 As the Board noted in
S.R.,8 the eBay case, the CA-1032 forms provide clear language regarding the reporting
requirement. In addition, the certification clauses on the form clearly state that the claimant
knows that any fraudulent concealment or failure to report income may result in both forfeiture
of the right to compensation and criminal prosecution. The evidence in this case, which
documents multiple sales transactions to appellant’s accounts, supports a finding that she
knowingly omitted earnings. OWCP may find that an omission was knowingly made, without an
admission of knowledge by her, if the circumstances of the case are sufficient to establish that
appellant knew that she should have reported the employment activity and earnings.9 These facts
are unlike those of C.R.,10 wherein the claimant had sold paintings from his home, but had
telephoned OWCP to inform of such sales. Since the claimant in C.R., notified OWCP of the
sales, he did not knowingly omit or fail to report income. The Board finds that appellant
knowingly omitted earnings on CA-1032 forms dated March 13, 2012 and March 11, 2013.
Appellant therefore forfeits her compensation for the 15-month periods covered by the forms,
from December 13, 2010 to March 11, 2013.
On appeal, appellant reiterates her contention that she was just helping a friend and the
sales were made on behalf of Mr. Pisano. For the reasons noted above, she was required to
report the employment activity. Appellant’s failure to report the activity on the CA-1032 forms
constitutes a knowing omission of earnings.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8106(b), “compensation forfeited under this subsection, if already paid,
shall be recovered … under section 8129 of this title, unless recovery is waived under that
section.”11

7

20 C.F.R. § 10.5(n).

8

Supra note 5.

9

See Terryl A. Geer, 51 ECAB 168, 171-72 (1999).

10

Docket No. 09-720 (issued October 15, 2009).

11

5 U.S.C. § 8106(b).

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Section 10.529 of OWCP’s implementing regulations provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. [§]
8129 [recovery of overpayments] and other relevant statues.”12
ANALYSIS -- ISSUE 2
Appellant has forfeited her right to compensation for the period December 13, 2010 to
March 11, 2013. As noted above, OWCP may recover the compensation paid under the current
claim for the period in question. The evidence of record shows that appellant had received gross
compensation in the amount of $78,941.92 during this period.13 OWCP found that the
overpayment was $78,941.92 and there is no contrary evidence. The Board accordingly finds
that an overpayment of $78,941.92 was created in this case.
LEGAL PRECEDENT -- ISSUE 3
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when 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.”14 A claimant who is at fault in creating the overpayment is not entitled to waiver.15
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) Made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) Failed to provide information which he
or she knew or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known was incorrect. (This provision applies only to the overpaid
individual.)”
ANALYSIS -- ISSUE 3
The finding of fault in this case was based on 20 C.F.R. § 10.433(a)(1), for making an
incorrect statement regarding a material fact that appellant knew or should have known was

12

20 C.F.R. § 10.529.

13

In a forfeiture case, the gross compensation paid represents the overpayment of compensation. See K.R.,
Docket No. 14-434 (issued October 7, 2014).
14

5 U.S.C. § 8129(b).

15

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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incorrect. The incorrect statement in this case is answering “no” to the question as to selfemployment or involvement in a business enterprise.
As the Board explained in L.M.,16 by signing the CA-1032 forms, appellant is deemed to
have acknowledged her duty to fill out the forms properly, including the duty to correctly report
self-employment income. Appellant’s understatement of earnings is an incorrect statement as to
a material fact.17 Based on the forfeiture discussion above, it is established that she knew or
should have known that the statement was incorrect in this case. The Board accordingly finds
that appellant is properly found to be at fault under 20 C.F.R. § 10.433(a)(1). Since appellant is
at fault in creating the overpayment, she is not entitled to waiver.
On appeal, appellant asserts that she is not at fault as she answered truthfully on the CA1032 forms. The evidence of record establishes, however, that she made an incorrect statement
as to a material fact and is properly found to be at fault in creating the overpayment in this case.
LEGAL PRECEDENT -- ISSUE 4
OWCP regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize hardship.”18
When an individual fails to provide requested information on income, expenses, and
assets, OWCP should follow minimum collection guidelines, which state in general that
government claims should be collected in full and that, if an installment plan is accepted, the
installments should be large enough to collect the debt promptly.19
ANALYSIS -- ISSUE 4
In the present case, appellant did not provide any financial information that would allow
OWCP to review the financial circumstances and minimize hardship. As noted above, when she
fails to submit the requested financial information, OWCP may recover the overpayment from
continuing compensation in a manner that would collect the debt promptly.

16

Docket No. 12-405 (issued October 1, 2012).

17

Id.

18

20 C.F.R. § 10. 441.

19

See J.L., Docket No. 14-396 (issued May 19, 2014); Gail M. Roe, 47 ECAB 268 (1995); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Initial Overpayment Actions, Chapter 2.600.4 (June 2009).

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OWCP found that the $78,941.92 overpayment should be recovered by deducting
$2,110.00 from appellant’s 28-day compensation payments. In the absence of any relevant
financial information, this was a reasonable amount to collect the debt promptly. The Board
finds no error with respect to recovery of the overpayment.
CONCLUSION
The Board finds that appellant forfeited her compensation from December 13, 2010 to
March 11, 2013. The Board further finds that OWCP properly found an overpayment of
compensation in the amount of $78,941.92 was created, that she was not entitled to waiver of
recovery of the overpayment and that it may be recovered by deducting $2,110.00 from
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 14 and April 3, 2014 are affirmed.
Issued: August 4, 2016
Washington, DC

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

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

Christopher J. Godfrey, Chief Judge, dissenting:
I dissent from the opinion and order of the majority.
OWCP bears the burden of proof to justify forfeiture of appellant’s compensation
benefits. The record of evidence in this case does not support forfeiture and should therefore be
reversed. The holding of the majority shifts the burden of proof in forfeiture cases onto
appellants. Rather than requiring OWCP to meet its burden to prove that appellant had earnings

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and knowingly omitted such earnings from her periodic EN1032 forms,1 the holding of the
majority erroneously places the burden on appellant to disprove evidence consisting in this case
of nothing more than a few sheets of paper printed off from eBay records. As will be noted
below, appellant presented compelling evidence that she had no earnings. Thereafter, OWCP
performed no further investigation to counter her additional evidence and summarily concluded
that appellant had not only earnings, but also knowingly violated of the reporting requirement on
two EN1032 forms. Such a process and result violates the intent of FECA.
The law as to forfeiture of benefits is primarily statutory. 5 U.S.C. § 8106(b) provides in
pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies.… An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings; forfeits his
right to compensation with respect to any period for which the affidavit or
report was required.”
The Board has held that it is not enough to merely establish that there was unreported
employment or earnings. A claimant can only be subjected to the forfeiture provisions of 5
U.S.C. § 8106(b) if he or she knowingly failed to report employment or earnings.2 The term
knowingly, as defined in OWCP’s implementing regulations, means with knowledge,
consciously, willfully, or intentionally.3 The Board has found in interpreting the forfeiture
statute that OWCP can meet this burden of proof in several ways, including by a claimant’s own
admission to OWCP that he or she failed to report employment earnings which he or she knew
should be reported or by establishing that a claimant has pled guilty to violating applicable
federal statutes by falsely completing the affidavits in the EN1032 forms.4 As the penalty of
1

The applicable EN1032 forms in this case instructed appellant to report all employment for which she received a
salary, wages, income, sales commissions, piecework, or payment of any kind. Appellant was directed to report all
self-employment or involvement in business enterprises, including (but not limited to) farming, sales work,
operating a business, and providing services in exchange for money, goods, or other services. Examples of services
that she was required to report included such activities as carpentry, mechanical work, painting, contracting, child
care, keeping books and records, odd jobs, and managing and overseeing a business of any kind, including a family
business. Such activities had to be reported even if they were part time or intermittent. The applicable EN1032
forms further instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to others. If appellant performed any duties in a
business enterprise for which she was not paid, she was required to show what the rate of pay would have cost the
employer or organization to hire someone to perform the work or duties she did, even if the work was for her or a
family member or relative. The forms contained certification clauses which informed her of the consequences of not
accurately reporting her employment activities, such as being subjected to criminal penalties and losing the right to
receive workers’ compensation.
2

Harold F. Franklin, 57 ECAB 387 (2006).

3

20 C.F.R. § 10.5(n).

4

Supra note 2.

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forfeiture is substantial -- if not life altering for the claimant -- the burden of proof placed on
OWCP must remain substantial. Unlike an overpayment analysis of fault, where recovery is
limited to the overpayment amount and the finding of fault looks to what appellant “knew or
should have known,” forfeiture requires sole consideration of a knowing failure to report
earnings.5
In its April 3 and May 14, 2014 merit decisions, OWCP found that appellant failed to
disclose earnings from sales of items on eBay on her EN1032 forms signed March 13, 2012 and
March 11, 2013.6 On these forms appellant attested that she was not self-employed or involved
in a business enterprise. The period covered by each form is 15 months prior to the signature
date.
As noted, forfeiture is a penalty, and thus OWCP bears the burden of proof to establish
that appellant knowingly failed to report employment or earnings. OWCP does not base its
forfeiture decision on either an admission by appellant of a failure to report employment earnings
which she knew should have been reported or by a guilty plea to violating federal statutes by
falsely completing the EN1032 forms. Instead, it based its forfeiture decision on the finding that
appellant knowingly omitted earnings as concluded in the OIG report dated March 24, 2014.
The “case summary” of the OIG report determined that appellant was “gainfully employed”
during the period December 13, 2011 to April 23, 2012. The majority finds “there is no
documentation of record to support a finding that appellant had no actual earnings from these
eBay sales.” Such a finding has shifted the burden from OWCP to appellant. Moreover, the
finding is wrong.
The EN1032 forms required appellant to report employment for which she received
salary or wages, self-employment, or involvement in a business enterprise. OWCP found that it
was reasonable to conclude that appellant was involved in self-employment activities related to
the use of her eBay account and that she was therefore required to inform OWCP of her activities
and earnings. However, it does not explain in its decision how her activities, i.e., the sales
activity described in the OIG report would rise to the level of self-employment as opposed to
everyday activities of an individual with a home computer, or even a smartphone, and Internet
access. Would OWCP hold every claimant to a standard that near-effortless activities of daily
living such as selling a car on Craigslist or taking unwanted personal items to a consignment
shop constitute gainful self-employment? There is no defined, logical line that has been drawn
and therefore this process has become a trap which can easily ensnare the occasional unwitting
individual. The “knowing,” “conscious,” “willful,” or “intentional” qualifications must be
proven by OWCP for the specific purpose of avoiding ensnaring the truly unwitting. Regardless,
by relying solely upon the OIG report, OWCP’s evidence of self-employment in this case is
limited to the printout received from eBay relating to the account registered to appellant and
mere speculation and surmise.

5

J.S., 58 ECAB 515 (2007).

6

To the extent that this decision is decided to ensure consistency with the decision in Docket No. 14-1847, I
conclude this decision should stand on its own merits regardless of a prior Board decision with a different panel.

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On the other side of the proverbial scale, appellant presented compelling evidence to
OWCP, as was requested of her, to refute the evidence and the OIG findings. In a statement, she
argued that some of the sales transactions were not her own, but were sold on behalf of a friend.
On April 23, 2014 appellant submitted a notarized and signed statement, refuting the facts
underlying the forfeiture decision, from Allan Pisano who confirmed that the eBay auctions
belonged to him and that appellant merely allowed him to post his items for sale using her
computer and accounts. Mr. Pisano acknowledged that payments were received after the sale of
goods into appellant’s PayPal account and thereafter transferred to her bank account, but this was
done because at that time he did not have eBay, PayPal, or bank accounts of his own. He
asserted that appellant was just helping a friend, she did not take part in his auctions, and she was
not paid any money as she provided him with all proceeds from the sale of his auction items.
Mr. Pisano’s statement indicates that he took his own pictures, listed and maintained his own
auctions, and that he performed all of his own packing and shipping from his own home. He
attached to his statement a business card associated with his internet sales for “Al’s Attic.”
Mr. Pisano informed OWCP that if there were any questions that they were free to contact him.
While the Board is free to question the veracity of Mr. Pisano, to disprove his statement requires
actual evidence. In this case, there is no such evidence in the record and the opinion of the
majority, unsurprisingly, cites to none. The burden to prove forfeiture is meant to be high. If the
present decision demonstrates the level of proof required to prove forfeiture, it is now almost
nonexistent.
Following appellant’s submission of her compelling evidence, neither OWCP nor the
OIG investigated the veracity of the new evidence or disproved it. There are no findings in the
forfeiture decision regarding the involvement of Mr. Pisano on the eBay account and whether his
activities fully encompassed the activity attributed to appellant by the OIG. Furthermore, there is
no finding as to the specific amount of time appellant was allegedly engaged in business activity
while selling items on eBay. OWCP does not cite, in its forfeiture decision, to any evidence of
record to establish that appellant actually performed any of the activities attributed to her by
OIG. For instance, there is no evidence in the OIG report that she took photographs, posted
items for sale, shipped goods to buyers, or kept books and records. Such evidence is particularly
important when appellant submitted a signed statement from an individual who accepted
responsibility for performing all of the alleged acts. OWCP’s forfeiture decision fails to make
any findings regarding the statement of Mr. Pisano such that appellant can be presented an
understanding of why his statement is insufficient to overcome forfeiture or what additional
evidence she can now present to refute the findings of the OIG and the forfeiture decision.
Should appellant choose to file a request for reconsideration with OWCP (which is her legal
right to do in this matter),7 what would the last merit OWCP decision or the decision of the
majority, tell her about what evidence would be relevant and pertinent new evidence to support
her claim? Appellant’s dilemma is akin to a forfeiture case with video surveillance evidence
wherein a claimant presents evidence that the person depicted on the video is someone else and
documents that it could not be him or her -- yet OWCP proceeds by ignoring the evidence and
argument and moves forward with forfeiture based solely on the video evidence. If the
compelling evidence appellant submitted in this case does not trigger the need for further OIG
7

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.

10

investigation, then the process is broken. When viewing the evidence of record it is clearly
insufficient to establish self-employment, a knowing omission from the EN1032 forms, or for
OWCP to prove that a penalty of forfeiture is warranted.
The law is clear, OWCP may not base its application of the forfeiture provision strictly
on conclusions drawn in an investigation. Rather, the evidence of record must establish that the
claimant has had unreported employment activities, earnings from employment, or volunteer
work which were knowingly unreported. In the absence of actual signed statements or clear
documentation of work activities, there is inadequate evidence to establish that a claimant had
earnings or was engaged in employment activities which were required to be reported on the
EN1032 forms. This harsh penalty, based on mere speculation and surmise, violates the intent of
FECA and thus it is troubling and compels the length and tone of this dissent.

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Boston, MA,
Employer
__________________________________________

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

Docket No. 07-1436
Issued: October 17, 2007

Case Submitted on the Record

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

JURISDICTION
On May 2, 2007 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s merit decision dated April 20, 2007
and an Office decision dated December 11, 2006 terminating her compensation benefits.
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 appellant’s
compensation benefits on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On February 13, 2004 appellant, then a 41-year-old mail processor, filed an occupational
disease claim alleging that she developed right wrist tenosynovitis due to her employment duties

of lifting heavy tubs of mail and keying.1 The Office accepted her claim for right de Quervains
tenosynovitis on March 3, 2004. Appellant’s attending physician, Dr. Bruce Leslie, a Boardcertified surgeon, performed a surgical right de Quervain’s release on October 22, 2004. The
Office authorized this surgery on November 29, 2004. On June 15, 2005 the Office expanded
appellant’s claim to include right radial styloid tenosynovitis and osteoarthritis of the right
thumb. The Office entered appellant on the periodic rolls on September 30, 2005. The Office
authorized additional surgery on December 15, 2005. On January 13, 2006 Dr. Leslie performed
arthroscopic shaving of appellant’s right wrist due to right basal joint arthritis.
Dr. Leslie completed a work restriction evaluation on March 9, 2006 and indicated that
appellant could work eight hours a day with restrictions on reaching, reaching above the shoulder
and repetitive movements of the wrist for four to eight hours a day. He indicated that appellant
could push, pull and lift less than 20 pounds and that she should type or key for no more than
30 minutes an hour. Dr. Leslie increased her lifting, pushing and pulling restriction to three to
five pounds on March 28, 2006. Appellant requested a light-duty position comporting with these
restrictions on March 31, 2006.
The employing establishment offered appellant a light-duty assignment of modification
mail processing clerk on April 10, 2006 which complied with the work restrictions detailed by
Dr. Leslie. The duties of the position including six hours of manual distribution at a letter case,
less than one hour of sweeping full cells into tray rack, less than one hour of placing trays on the
ledge. The job offer indicated that appellant would return to her date-of-injury location and duty
hours from 22:30 to 07:00. The job offer indicated that she would not work on Tuesdays and
Wednesdays. The employing establishment directed appellant to report to work immediately.
In a letter dated May 4, 2006, appellant declined this position. She stated that the
position required repetitive use of her thumb and thumb joint which Dr. Leslie felt would
exacerbate her pain. Appellant further stated that the repetitive motion of gripping could cause
further damage to her thumb joint. She stated that she had difficulty gripping with her right
thumb, decreased strength in that appendage and frequently dropped objects held with her right
hand. Appellant opined that sweeping mail would be problematic.
Dr. Leslie completed a note on May 1, 2006 and stated that appellant described her
offered light-duty position as requiring “taking mail between her thumb and index finger or
between the thumb, index and middle fingers (key pinch\chuck pinch) and flipping mail into
boxes.” He noted that the job description did not contain a precise description of the motions
involved, but that if frequent key pinch or chuck pinch were required then these motions would
“probably exacerbate her symptoms” and this was not an appropriate position for appellant.
Dr. Leslie stated that if appellant performed a position with key and chuck pinch then her need
for additional surgery would be accelerated. He noted that the pictures appellant provided him
demonstrated pinch between the thumb and the index or middle finger.2

1

Appellant stated that her left hand was her dominate hand.

2

Appellant provided Dr. Leslie with a general summary of the duties of manual distribution clerk with
photographs illustrating the duties of casing letter mail, casing flat mail, pull down or sweeping.

2

The employing establishment responded on June 15, 2006 and alleged that appellant had
provided Dr. Leslie with a position description of full-duty manual distribution clerk. The
employing establishment further noted that appellant was not required to use her restricted right
hand to perform the duties of the offered position and that she had no restrictions regarding her
dominant left hand or wrist. The employing establishment stated: “Employee would be able to
work at her own pace and could grip the mail and sweep the cells with her LEFT hand, hence
eliminating her ‘concern’ that returning to work … would require repetitive use of RIGHT
thumb and thumb joint.”
In a letter dated August 3, 2006, the Office informed appellant that the offered position
was suitable and was still available. The Office allowed her 30 days to accept the position or to
offer her reasons for refusal. Appellant declined the position on August 26, 2006 noting a name
change for the position of manual distribution clerk to mail processing clerk in 2002. She
referred to Dr. Leslie’s report regarding the hand motions involved in the position as the basis for
her decision.
In a note dated August 30, 2006, Dr. Leslie addressed the light-duty position indicating
that he was not clear why the employing establishment felt the position was appropriate. He
stated: “It would not be unreasonable to have her return to this job if they think it is appropriate,
understanding, however, that if she is having pain she will contact me and that I will have to give
her a note that may take her out of work.”
In a letter dated November 21, 2006, the Office informed appellant that her reasons for
refusing the position were not considered acceptable. The Office allowed appellant 15 days to
accept and “make arrangements to report to work in the light-duty position.”3 The Office
stated: “If you have not accepted the position and arranged for a report date within 15 days of
the date of this letter your entitlement to wage loss and schedule award benefits will be
terminated.” The Office did not inform appellant that the position was still available.
Appellant’s attorney responded to the Office and the employing establishment on December 4,
2006 and accepted the position on appellant’s behalf. He noted that appellant had not yet
received the November 21, 2006 letter and requested instructions regarding when and where
appellant should report to work. On December 6, 2006 appellant’s attorney again advised the
employing establishment and the Office that appellant agreed to return to work and again
requested reporting instructions.
By decision dated December 11, 2006, the Office terminated appellant’s compensation
benefits effective that date finding that she had refused to accept suitable work. The Office again
stated that appellant’s initial reasons for refusing the position were not acceptable and found that
the original position offer dated April 10, 2006 provided her with the necessary information
regarding the location and shift of the offered position. The Office concluded that the
November 21, 2006 letter was properly addressed to appellant and, therefore, presumed to have
been received by her.

3

The Office addressed this letter to appellant at: xxxx. This is her address of record. The Office provided copies
of this letter to appellant’s attorney and to the employing establishment.

3

Appellant, through her attorney, requested a review of the written records on
January 9, 2007. The record indicates that appellant’s attorney telephoned the Office on
December 13, 2006 and that the Office confirmed that the employing establishment would not
discuss appellant’s return to work with him as there was no signed release to communicate with
him. In his January 9, 2007 letter, appellant’s attorney alleged that the position was not suitable,
that nevertheless she had accepted the position and had requested return to work instructions by
telephone and facsimile within the 15-day period. He argued that the Office improperly required
that appellant actually report for work or make arrangements to report for work within that
15-day period.4
In a letter dated February 16, 2007, appellant’s attorney informed the hearing
representative that appellant had received the November 21, 2006 letter from the Office on
February 9, 2007 in an envelope which “did not bear any postage nor any postmark.” On
March 28, 2007 appellant’s attorney again argued that the Office had improperly required
appellant to make arrangements to return to work rather than merely to accept the offered
position and cited Board authority.5
By decision dated April 20, 2007, the hearing representative affirmed the Office’s
December 11, 2006 decision finding that appellant had refused an offer of suitable work. The
hearing representative found that appellant’s initial reasons for refusing the job offer were not
acceptable as Dr. Leslie did not explain why she could not use her left hand to perform the
manual distribution duty. The hearing representative further found that as appellant’s attorney
received the November 21, 2006 letter and accepted of the position on her behalf within 15 days
the issue of appropriate notice to appellant was moot. The hearing representative concluded that
appellant was aware of the time, location and day to report to work via the April 10, 2006 job
offer and that as neither appellant’s shift nor work location had changed from her date-of-injury
position she did not require any further information or instructions in order to report to work.
The hearing representative concluded: “[H]er refusal to report for work at the time and location
of which she had been fully informed, constitutes in effect a refusal of the job offer.”
LEGAL PRECEDENT
It is well settled that once the Office accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.6 As the Office in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), the Office must establish that appellant
refused an offer of suitable work. Section 8106(c) of the Federal Employees’ Compensation
Act7 provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee is not entitled to compensation.
Section 10.517 of the applicable regulations8 provides that an employee who refuses or neglects
4

The record indicates that appellant returned to work on January 11, 2007.

5

Lenice M. Mitchell, Docket No. 04-2037 (issued April 1, 2005).

6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

5 U.S.C. § 8106(c)(2).

8

20 C.F.R. § 10.517(a).

4

to work after suitable work has been offered or secured for the employee, has the burden of
showing that such refusal or failure to work was reasonable or justified and shall be provided
with the opportunity to make such showing before a determination is made with respect to
termination of entitlement to compensation. To justify termination of compensation, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.9
The Office’s regulations also state:
“[The Office] shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any reasons
to counter [the Office’s] finding of suitability. If the employee presents such
reasons and [the Office] determines that the reasons are unacceptable, it will
notify the employee of that determination and that he or she has 15 days in which
to accept the offered work without penalty. At that point in time, [the Office’s]
notification need not state the reasons for finding that the employee’s reasons are
not acceptable.”10
ANALYSIS
The employing establishment offered appellant a position on April 10, 2006 which
comported with the work restrictions set out by her attending physician. Appellant declined this
position on May 4, 2006 and submitted additional medical evidence addressing her ability to
pinch and grip with her right hand. Her attending physician, Dr. Leslie, a Board-certified
surgeon, indicated that pinch and grip movements would aggravate appellant’s employmentrelated conditions and that he could not approve a position which required her to use her right
hand in this manner.
The employing establishment responded and stated that appellant did not have any
restrictions regarding her dominant left hand and that the light-duty position did not require that
appellant utilize her right hand to pinch and grip mail. Dr. Leslie stated on August 30, 2006 that
appellant could reasonably return to the offered position. The Office, therefore, properly found
that appellant’s reasons for refusing the light-duty position were not acceptable as there was no
reasoned medical evidence establishing that appellant could not perform the duties of the suitable
work position.
On November 21, 2006 the Office informed appellant that she had 15 days to accept the
offered position and to “make arrangements to report to work in the light-duty position.” The
Office stated: “If you have not accepted the position and arranged for a report date within
15 days of the date of this letter your entitlement to wage loss and schedule award benefits will
be terminated.” The Office did not inform appellant that the suitable work position was still
available. In a letter dated December 4, 2006, within 15 days from the November 21, 2006
letter, appellant’s attorney informed the Office and the employing establishment that she
9

Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

10

20 C.F.R. § 10.516.

5

accepted the position. He further requested instructions regarding how and when she should
report to work. The Board finds that this letter from appellant’s attorney constitutes a timely
acceptance. While appellant’s attorney requested information regarding when and where to
report to work, he did not make the acceptance contingent on any event.11
There is no requirement in Board precedent, the Office’s regulations12 or the Office’s
procedure manual13 that a claimant must make arrangements to report to work within the 15-day
period following the Office’s notification. The only requirement is that she accepted the suitable
work position. Appellant, through her attorney, accepted the position and further indicated her
willingness to report to work by requesting additional information regarding her return to work
date.
The Board notes that the facts in this case are such that appellant could reasonably
require additional information regarding her return to work before simply appearing at the
employing establishment in December 2006. In April 2006, the employing establishment
requested that appellant report to work “immediately.” The employing establishment did not
provide any further written information regarding appellant’s return to work date within the
six-month period during which the Office was considering the suitability of the position. The
Office did not inform appellant on November 21, 2006 that the offered position was still
available. The most recent notification that the position was still available came in the Office’s
August 3, 2006 letter, four months before appellant’s final opportunity to accept the position.
Appellant, through her attorney, clearly and timely accepted the suitable work position and
reasonably requested information from the employing establishment and the Office regarding the
date that she should report to work. As she accepted the suitable work position and as there is no
legal basis for the Office’s requirement in the November 21, 2006 letter that she must secure a
return to work date, the Office improperly terminated her compensation on the grounds that she
refused an offer of suitable work.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation benefits on the grounds that she refused an offer of suitable work.

11

Lenice M. Mitchell, Docket No.04-2037 (issued April 1, 2005).

12

20 C.F.R. §§ 10.516; 10.517.

13

“If a claimant’s refusal of the offered job is not deemed justified, the [claims examiner] must so advise the
claimant and allow 15 additional days for him or her to accept the job.” (Emphasis added.) Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 2.814.5.d.(1)
(July 1997); Compare Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining WageEarning Capacity, 2.814.10.e (1) (July 1996). (This section of the procedure manual pertains to situations in which
a claimant has abandoned or neglected to work after suitable work and states: “If the abandonment of the job is not
deemed justified, the [claims examiner] must so advise the claimant and allow him or her 15 additional days to
return to work.”) (Emphasis added.)

6

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2007 and December 11, 2006
decision of the Office of Workers’ Compensation Programs are reversed.
Issued: October 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1209
Issued: March 7, 2019

Case Submitted on the Record

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

JURISDICTION
On May 29, 2018 appellant, through counsel, filed a timely appeal from a February 16,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 16, 2018 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right rotator cuff
tear causally related to the accepted December 10, 2015 employment incident.
FACTUAL HISTORY
On March 1, 2016 appellant, then a 57-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on December 10, 2015, she sustained a right rotator cuff tear
when she slipped and stumbled on a rocky walkway while in the performance of her federal
employment duties. She indicated that the injury occurred when returning to her long life vehicle
(LLV) and that, when her shoulder jerked to break her fall, she felt immediate severe pain.
Appellant did not stop work.
In a December 11, 2015 report, Dr. Nagalakshmi Shetty, Board-certified in rheumatology
and internal medicine, reported that, on December 7, 2015, appellant experienced a sudden jerking
movement to her right shoulder. This pain resolved with icing the right shoulder. She further
reported that appellant experienced another “jerky jolt” to her right shoulder on December 10,
2015 when, while delivering mail, she stumbled on rocks and caught herself from falling. This
time the pain was severe. Dr. Shetty diagnosed right shoulder degenerative arthritis, right shoulder
pain, and primary osteoarthritis of both first carpometacarpal joints.
In medical reports dated December 14, 2015 and February 2, 2016, Dr. Rosemarie
DeSantis, a Board-certified rheumatologist, noted a history of the December 10, 2015 work
incident and diagnosed primary osteoarthritis of the right shoulder and primary osteoarthritis of
right and left hands. In her February 2, 2016 report, Dr. DeSantis also diagnosed a tear of the right
rotator cuff.
In a February 22, 2016 report, Dr. Nicholas Jarmon, a Board-certified orthopedic surgeon,
reported that appellant had immediate onset of right shoulder pain while at work on December 10,
2015 when she fell and caught herself. Appellant denied prior shoulder pain. Dr. Jarmon provided
an assessment of full-thickness rotator cuff tear and recommended surgery. He indicated that the
tear appeared to be acute in nature as there was no significant muscle atrophy and appellant denied
a history of prior trauma.
In a March 7, 2016 report, Dr. Jarmon continued to assess an acute full-thickness rotator
cuff tear and recommend surgery. He also opined that the tear was causally related to appellant’s
work as it had occurred at work. In a March 7, 2016 duty status report (Form CA-17), Dr. Jarmon
provided work restrictions.
In a March 11, 20164 attending physician’s report (Form CA-20), Dr. Jarmon checked a
box marked “yes,” indicating that appellant’s status post tear of the supraspinatus repair was
causally related to the December 10, 2015 work incident.
On March 17, 2016 Dr. Jarmon performed a right shoulder arthroscopic labral
debridement, biceps tenotomy, and arthroscopic supraspinatus repair. He opined, in an attending
4

The date of the report appears to be incorrect as it refers to appellant’s rotator cuff repair which took place
March 17, 2016.

2

physician’s report (Form CA-20), that appellant was totally disabled from work for the period
March 17 through June17, 2016. Postsurgical progress reports and Form CA-17 reports from
Dr. Jarmon were also received.
By development letter dated May 9, 2016, OWCP advised appellant that when her claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work.
It noted that the employing establishment did not controvert continuation of pay (COP) or
challenge the merits of the case and payment of a limited amount of medical expenses was
administratively approved. However, the merits of the claim had not been formally adjudicated
and appellant’s claim was being reopened because she had not returned to full-time work. OWCP
explained the additional medical evidence needed to establish her claim and afforded her 30 days
to submit such evidence.
In response, OWCP received appellant’s May 26, 2016 statement5 a February 10, 2016
magnetic resonance imaging (MRI) scan report, which noted a full-thickness two centimeter
supraspinatus tear, and a February 22, 2016 right shoulder x-ray report, which noted mild
osteopenia and mild acromioclavicular joint arthrosis.
On May 17 and June 8 and 13, 2016 OWCP received additional treatment notes and Form
CA-17 duty status reports from Dr. Jarmon. It also received May 17, 2016 physical therapy notes.
By decision dated June 15, 2016, OWCP denied appellant’s claim, finding that the medical
evidence submitted did not contain a comprehensive medical opinion which established that the
diagnosed conditions were causally related to the accepted December 10, 2015 employment
incident. It found that there was no rationalized medical opinion of record explaining how
appellant’s accepted employment incident caused, contributed to, or aggravated her medical
conditions.
On July 12, 2016 appellant requested a review of the written record by an OWCP hearing
representative.
In a June 29, 2016 report, Dr. Jarmon noted that, on December 10, 2015, appellant was
returning to her LLV after delivering parcels when she stumbled on a rocky path and caught her
balance with her right arm. Appellant experienced an immediate onset of pain, but continued on
her route, relying on her left shoulder. She denied a history of prior injury to the right shoulder.
Dr. Jarmon noted that a cortisone injection administered by Dr. Shetty the next day provided only
temporary relief. He indicated that the February 10, 2016 right shoulder MRI scan revealed a fullthickness tear of the supraspinatus, for which the March 17, 2016 surgery was performed. With
regards to medical causality, Dr. Jarmon opined that the mechanism of injury described by
appellant could cause a full-thickness rotator cuff tear. He explained that the timing of her
symptoms coincided with the timing of the injury. Also, the fact that there was no significant
muscle atrophy appreciable on the MRI scan suggested that it was an acute, not a chronic, tear.
By decision dated December 5, 2016, an OWCP hearing representative reviewed the
evidence of record and affirmed the denial of appellant’s claim. He found that Dr. Jarmon had not

5

Appellant reported that she stopped work on March 7, 2016 and had not returned. In a June 2, 2016 Form CA-17
duty status report, Dr. Jarmon took appellant off work until July 5, 2016.

3

provided a rationalized medical opinion explaining how stumbling and the jerky jolt appellant
described would have been a mechanism of injury sufficient to have torn a rotator cuff.
On May 23, 2017 appellant, through counsel, requested reconsideration.
presented arguments as to why reconsideration should be granted.

Counsel

In a January 16, 2017 progress report, Dr. Jarmon indicated that “there is always a question
of causality with regards to this injury.” He noted that the injury occurred at work on December 10,
2015 when appellant tripped and lost her balance. Dr. Jarmon indicated that she did not fall or
grab onto anything. Rather, she regained her balance by moving her arms around and kind of
catching herself in midair. That was when the pain started. Dr. Jarmon opined that this was a
reasonable mechanism to cause a full-thickness cuff tear. He also noted that the MRI scan findings
were consistent with the acute tear. Dr. Jarmon concluded that it was his opinion that the injury
was related to the mechanism of injury appellant described.
In a February 16, 2017 report, Dr. Jarmon again noted that appellant was moving her arms
around to basically regain her balance in air. He indicated that this movement caused increased
sudden stress of the tendon-bone interface of the rotator cuff attachment. If enough force was
placed on that interface, Dr. Jarmon advised that it could potentially cause a tear based on the
strength of the contracture of the rotator cuff.
In a March 27, 2017 report, Dr. Jarmon noted that appellant temporarily lost her balance,
which she regained by moving her arms in the air. He also noted that appellant immediately
developed pain and weakness in the shoulder following the incident. A right shoulder MRI scan
confirmed a full-thickness unretracted tear of the rotator cuff with no significant muscular atrophy.
Dr. Jarmon advised that the mechanism described could certainly cause enough contraction of the
rotator cuff to result in a full-thickness tear. Due to the temporal relationship between when this
incident occurred, the development of appellant’s symptoms, and the fact that she was completely
asymptomatic with regards to that shoulder prior to the incident, Dr. Jarmon concluded that the
mechanism described would in fact cause the rotator cuff tear later found on MRI scan.
By decision dated February 16, 2018, OWCP denied modification of its December 5, 2016
decision.
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,6 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

6

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

4

to the employment injury.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determine whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right rotator
cuff tear causally related to the accepted December 10, 2015 employment incident.
Appellant submitted a December 11, 2015 report from Dr. Shetty who noted two separate
incidents concerning a sudden jerking movement of appellant’s right shoulder which resulted in
pain. Her painful right shoulder from the first incident, which occurred four days prior to her visit,
resolved with icing the shoulder. The second incident was the December 10, 2015 employment
incident, when appellant stumbled and caught herself from falling. Dr. Shetty provided an
assessment of right shoulder degenerative arthritis, right shoulder pain, and primary osteoarthritis
of both first carpometacarpal joints. However, she did not provide an opinion regarding causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding

7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

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).
9

C.L., Docket No. 18-0540 (issued October 17, 2018); T.H., 59 ECAB 388 (2008).

10

See A.H., Docket No. 18-0722 (issued November 6, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

See A.H., supra note 10; Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

the cause of an employee’s condition is of no probative value on the issue of causal relationship.13
These reports, therefore, are insufficient to establish appellant’s claim.
The medical reports from Dr. DeSantis provide diagnoses of primary osteoarthritis of right
shoulder, primary osteoarthritis of the hands, and a right rotator cuff tear. While Dr. DeSantis
provided diagnoses of appellant’s conditions, she did not provide an opinion on causal relationship.
Thus, the reports from Dr. DeSantis are also insufficient to support appellant’s claim.14
Multiple reports were received from Dr. Jarmon dated February 22, 2016 to March 27,
2017, with Form CA-17 duty status reports provided on an approximate monthly basis. Dr. Jarmon
assessed a full-thickness right rotator cuff tear, which he surgically corrected on March 17, 2016.
In his treatment notes, surgical and Form CA-17 report, Dr. Jarmon offered no opinion on
causation. As noted, medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.15
In his medical reports dated February 22 and March 17, 2016 as well as reports received
on May 17 and June 8 and 13, 2016 Dr. Jarmon described appellant’s December 10, 2015
employment incident and indicated that appellant had denied any prior right shoulder pain.
However, as Dr. Jarmon did not provide an opinion on causal relationship, these reports are of no
probative value.16
In his March 7 and June 29, 2016 reports and in a March 11, 2016 Form CA-20, Dr. Jarmon
opined that the rotator cuff tear was causally related to the December 10, 2015 work incident. His
opinions regarding causal relationship in these reports, however, were conclusory in nature and
did not explain how the December 10, 2015 employment incident caused or aggravated appellant’s
shoulder injury. Therefore, these reports are of limited probative value.17
In January 16, February 16, and March 27, 20117 reports, Dr. Jarmon reported that
appellant had regained her balance by moving her arms around and kind of catching herself in
midair. In his January 16, 2017 report, he indicated, in generalized terminology, that this was
reasonable mechanism to cause a full-thickness cuff tear, noting that the MRI scan findings were
consistent with an acute tear. In his February 16 and March 27, 2017 reports, Dr. Jarmon
elaborated on how the mechanism of injury could cause a full-thickness rotator cuff tear. He
indicated, in his February 16, 2017 report, that if enough force was seen at the tendon-bone
interface of the rotator cuff attachment then it could potentially cause a tear based on the strength
of the contracture of the rotator cuff. In his March 27, 2017 report, Dr. Jarmon attempted to further
explain causal relationship, however, his explanation was still of limited probative value. His
opinion that “if enough force was seen…,” “then it could potentially cause” was couched in
speculative terms. Medical opinions which are speculative or equivocal in character have little

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Id.

15

Id.

16

Id.

17

See B.B., Docket No. 18-1036 (issued December 31, 2018).

6

probative value.18 Without specifically explaining with medical certainty that the December 10,
2015 stumble without a fall physiologically caused or contributed to appellant’s diagnosed
condition, Dr. Jarmon’s opinion on causal relationship is equivocal in nature and of limited
probative value.19
Appellant also submitted diagnostic test reports. However, the diagnostic reports are also
of diminished probative value. The Board has held that reports of diagnostic tests lack probative
value as they do not provide an opinion on the causal relationship between appellant’s employment
duties and the diagnosed conditions.20
The physical therapy reports are also insufficient to satisfy appellant’s burden of proof
because physical therapists are not considered physicians as defined under FECA.21 Consequently,
their treatment notes are insufficient to establish entitlement to FECA benefits.22
For these reasons, the Board finds that appellant has not met her burden of proof to establish
a December 10, 2015 employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right rotator
cuff tear causally related to the accepted December 10, 2015 employment incident.

18

T.M., Docket No. 08-0975 (issued February 6, 2009).

19

See R.A., Docket No. 17-1472 (issued December 6, 2017).

20

See R.T., Docket No. 17-2019 (issued August 24, 2018).

21

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

22
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law).

7

ORDER
IT IS HEREBY ORDERED THAT the February 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, ORANGE POST
OFFICE, Orange, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2397
Issued: June 11, 2008

Case Submitted on the Record

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

JURISDICTION
On September 24, 2007 appellant, through her attorney, filed a timely appeal of a
December 15, 2006 merit decision of the Office of Workers’ Compensation Programs,
rescinding acceptance of her claim for a left foot injury and a June 27, 2007 nonmerit decision,
denying her request for reconsideration. Pursuant to 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 the Office properly rescinded its prior acceptance of
appellant’s claim for a contusion of the left foot; and (2) whether the Office properly denied her
request for a merit review of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 19, 2005 appellant, then a 27-year-old part-time flexible letter carrier, filed a
traumatic injury claim (Form CA-1). She alleged that at 1:30 p.m. on March 31, 2005 she
sustained a foot contusion when she twisted her left foot in the employing establishment’s

parking lot while pushing a cart. Appellant stated that there was a hole in the concrete. She did
not stop work.
On appellant’s claim form, Stanley F. Smith, a supervisor, stated that he first received
notice of the alleged injury on April 19, 2005. He stated that appellant waived her right to
medical attention on March 31, 2005 and she worked several days following the claimed injury.
In an April 19, 2005 narrative statement, Mr. Smith contended that appellant alleged that she
twisted her right ankle while pushing a loaded hamper to her truck at 12:30 p.m. on
March 31, 2005. On April 19, 2005 appellant arrived at work wearing a fiberglass splint from
her knee to her foot. As a result of his investigation, Mr. Smith determined that appellant
claimed that she stepped from one uneven surface to another. At the time of the alleged injury,
appellant claimed that she hurt her left foot and not her right foot. Based on his review of a
surveillance videotape of the parking lot, Mr. Smith stated that appellant did not slip, trip or fall
while loading or pushing a hamper to her truck. Appellant showed no signs of duress.
In a statement dated April 19, 2005, appellant related that she stepped on an uneven
surface and twisted her foot while pushing a cart. She first received medical treatment on
April 18, 2005 from Dr. Harvey L. Roter, a podiatrist. In an April 18, 2005 medical report,
Dr. Roter stated that appellant complained of pain about the lateral aspect of her left foot. He
placed her in a short leg walking cast for approximately three weeks. Dr. Roter requested that
appellant be excused from work during this time period. In a May 13, 2005 report, he stated that
appellant was being treated for a tear of the Peroneus Brevis tendon of the right foot. A
magnetic resonance imaging (MRI) scan demonstrated increased signal and tendinosis.
Dr. Roter opined that this condition was due to a lateral ankle plantar flexion foot injury. He
noted that appellant could not bear weight on the foot and that she was wearing a removable
short leg cast.
An undated disability certificate of Dr. Marco P. Holgado, a family practitioner, stated
that appellant had been under his care from April 14 to 18, 2005. He diagnosed a foot contusion
and released her to return to work on April 19, 2005.
By letter dated June 22, 2005, the Office addressed the additional factual evidence
needed including an explanation as to why she did not report the alleged March 31, 2005 injury
to her supervisor until April 19, 2005, a detailed description of how the alleged injury occurred,
statements from witnesses to the alleged injury and the reason she delayed seeking medical
treatment. The Office also addressed the additional medical evidence appellant needed to
submit. It requested that the employing establishment provide any treatment notes regarding the
alleged injury if appellant received any treatment from its medical facility.
In reports dated May 26 and June 27, 2005, Dr. Roter reviewed a history that on
March 31, 2005 appellant fell in a pothole at work. He opined that she sustained a partial rupture
of the left foot. Dr. Roter indicated with an affirmative mark that this condition was caused or
aggravated by an employment activity.
On June 16, 2005 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period May 31 through June 26, 2005. By letter dated July 13, 2005, the Office accepted her

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claim for contusion of the foot/ankle and paid her appropriate compensation for the claimed
period.
In statements dated April 19, 2005, appellant reiterated that at 1:30 p.m. on March 31,
2005 she was pushing her cart in the parking lot when she stepped on an uneven surface and
twisted her foot.
In a June 21, 2005 memorandum, a postal inspector investigating appellant’s claim stated
that her April 19, 2005 statement of injury was not consistent with her March 31, 2005 statement
of injury as she did not implicate an uneven surface as the cause of her accepted employment
injury. Dr. Holgado’s disability certificate indicated that appellant had been under his care since
April 14, 2005 while she stated that she first received medical treatment on April 18, 2005. Also
on June 21, 2005 the postal inspector stated that appellant worked 9 out of 13 days following the
accepted employment injury before claiming total disability on or after April 19, 2005.
Appellant also worked overtime on April 1, 2, 9 and 11, 2005. Time and attendance records
indicated that she left work at approximately 1:21 p.m. on March 31, 2005 while she contended
that her injury occurred at or about 1:30 p.m.
In a June 17, 2005 investigative interview, Postmaster Gary Thompson stated that he
reviewed a videotape of the March 31, 2005 employment incident. He saw appellant in the
parking lot at 12:40 p.m. and 12:47 p.m.
On April 21, 2005 the postal inspector interviewed Mr. Smith and Anthony Rodriguez, a
supervisor. Mr. Smith stated that on March 31, 2005 appellant reported her injury to Robert
Gary, a supervisor, who advised him about the injury between 12:15 p.m. and 12:30 p.m.
Appellant informed Mr. Smith that she was not going to file a claim for the March 31, 2005
employment injury and that she did not require medical treatment. Mr. Smith recalled that
appellant initially reported that the accepted employment injury occurred before 12:30 p.m.
which was before she left to deliver mail on her route. He approved appellant’s request for leave
and noted that she did not require assistance as she left work. Appellant returned to work on or
about April 2, 2005 and did not request a CA-1 form. She worked until approximately
April 16, 2005. Mr. Smith stated that appellant did not mention the March 31, 2005 employment
injury during this time period and had no difficulty walking. Appellant was out of work for three
days beginning on or about April 16, 2005. On April 19, 2005 she advised Postmaster
Thompson that she wanted to file a claim for the March 31, 2005 employment injury. Mr. Smith
stated that appellant did not provide any medical documentation in support of her claim. He
recalled that her CA-1 form indicated that the employment injury occurred at approximately 1:30
p.m. Mr. Smith stated that time and attendance records revealed that appellant clocked out from
work at 1:21 p.m.
Mr. Rodriguez stated that on April 19, 2005 he walked to the parking lot with appellant
and asked her to show him where the employment injury occurred. Appellant had difficulty
identifying the location. Mr. Rodriguez stated that she walked around for quite some time before
identifying a depression in the asphalt as the cause of her employment injury. He submitted
photographs that he had taken of the accident site. Mr. Rodriguez stated that the videotape did
not show appellant getting hurt. It also did not show her walking in the area where she claimed

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to have sustained the employment injury. Mr. Rodriguez stated that appellant was seen walking
without difficulty and pulling a hamper behind her.
In a March 31, 2005 routing slip, signed by appellant and Mr. Smith, on March 31, 2005,
appellant stated that she twisted her foot while pushing her cart in the parking lot. She elected to
not file a CA-1 form at that time.
In a July 7, 2005 memorandum, the postal inspector stated that he, Mr. Rodriguez and
Postmaster Thompson inspected the accident site on June 16, 2005. Mr. Rodriguez described the
irregularity in the asphalt and in his photographs. Mr. Smith and Postmaster Thompson
positively identified appellant in the videotape loading her vehicle at approximately 12:40 p.m.
and 12:47 p.m. without difficulty. Appellant was not seen twisting her left foot as alleged.
There was no visual evidence of postinjury behavior by her such as, limping, favoring, walking
slowly or stopping to inspect her injury.
The postal inspector’s July 14, 2005 investigative report concluded that there was no
evidence to support a finding that appellant sustained an injury on March 31, 2005 at the time or
in the manner alleged. There was no videotape evidence that she sustained an injury as alleged.
Appellant’s inconsistent statements and activities following the March 31, 2005 incident did not
support the alleged injury.
In reports dated July 1 and 26, 2005, Dr. Roter reiterated his prior history of the
March 31, 2005 employment-related injury. In the July 26, 2005 report, he stated that April 8,
2005 was the date of injury. Dr. Roter opined that appellant sustained a peroneal tendon injury
that was caused or aggravated by the March 31, 2005 employment injury.
On July 21, 2005 appellant stated that, while loading her truck, her left foot went into a
hole in the employing establishment’s parking lot causing her to twist her foot. She returned to
the building to report the injury to Mr. Smith but he was not available. Appellant then reported
the injury to Mr. Gary who paged Mr. Smith who examined her swollen foot and approved her
request to go home to treat her foot. She stated that there were no witnesses to the incident.
Appellant did not sustain any other injury between March 31 and April 19, 2005. She delayed
seeking medical treatment because she tried home remedies to treat her foot. On March 14, 2005
appellant’s pain and swelling were so great that she sought medical treatment from Dr. David
Rizzo.1 She stated that she did not have any prior injuries to her left foot.
By letter dated August 10, 2005, the Office advised appellant that her July 19, 2005
request to change her treating physician was denied because it appeared that her case had been
accepted in error.
On August 18, 2005 the Office issued a notice of proposed rescission of the acceptance of
appellant’s claim for contusion of the foot/ankle. It stated that the surveillance videotape
established that the March 31, 2005 incident did not occur as alleged. Appellant was given 30
days to submit additional evidence and argument if she disagreed with the proposed action.

1

The Board notes that Dr. Rizzo’s professional qualifications are not contained in the case record.

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In an August 23, 2005 letter, appellant denied stating that she injured her right foot. She
stated that, on April 19, 2005, she reported to work with an orthopedic boot on her left foot.
Appellant contended that the postal inspector’s investigation was completed without her input. If
she had been given the opportunity, she would have pointed out the location of her employment
injury on the videotape. Appellant stated that the injury occurred about 1:30 p.m. and that she
was not sure about the exact time because two weeks had passed before anyone asked her about
the injury on April 19, 2005. Mr. Rodriguez and Keith Hemmings, a shop steward, advised her
to put 1:30 p.m. on her CA-1 form. Appellant stated that the investigative report did not mention
the time lapse between the time she loaded her truck and the time she actually left the building.
She stated that Mr. Smith did not want to complete the CA-1 form on March 31, 2005.
Mr. Smith never asked her if she needed medical treatment or to complete a detailed statement of
injury. Appellant contended that Mr. Smith never asked her to identify the location in the
parking lot where the employment injury occurred. Mr. Smith did not take pictures or
investigate the scene himself. After appellant, Mr. Rodriguez and Mr. Smith went to the parking
lot so that she could identify the location of her injury Mr. Rodriguez expressed doubt about her
statement of injury. Appellant advised him to review the videotape of the parking lot. After so
doing, Mr. Rodriguez informed her that the location where she was injured was out of camera
range. Appellant could not be seen getting hurt.
In an October 12, 2005 letter, appellant contended that the surveillance videotape was of
poor quality. She had to watch it several times before recognizing herself. Although the
videotape was viewed in play mode, appellant stated that it was in fast forward mode which
made it difficult for anyone without firsthand knowledge to identify when the employment injury
occurred. The videotape indicated that the time of injury was 12:53 p.m. and it appeared to show
that the cart appellant was pulling tipped over because she was using it to catch her balance and
to keep from falling to the ground when she twisted her foot. She took about two more steps
before the pain hit her and she was able to put the cart onto her truck. Appellant sat down at the
back of the truck out of camera view to take the pressure off her foot. She attempted to continue
to perform her work duties at the front of the truck but, within one-half minute the pain was too
great. Between the time, appellant came out of the building and was ready to return, a truck
pulled between her and the building which blocked the camera’s view of her limping back into
the building. She did not know that her injury was extensive. If appellant had known, she would
not have delayed in reporting it. She believed she sustained a simple twist of the foot and that
she could nurse it back to health in a few days. Appellant contended that the videotape did not
show her leaving for home shortly after 1:00 p.m. as it did not show her again after she went to
the front of her truck at 12:54 p.m.
In an October 14, 2005 letter, appellant’s attorney advised the Office that the quality of
the tape was poor as the speed was five times faster than normal speed. The pictures were hazy
and appeared to be mostly in black and white with small amounts of color.
By decision dated November 17, 2005, the Office rescinded acceptance of appellant’s
claim. It found that the postal inspector general’s July 14, 2005 report was sufficient to cast
doubt that appellant sustained an injury on March 31, 2005 at the time, place and in the manner
alleged. In a December 2, 2005 letter, appellant, through her attorney, requested an oral hearing.

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An undated witness statement of Kato James, a coworker, stated that he noticed appellant
limping when returning from her route. Appellant stated that she hurt her foot. Mr. James
suggested that appellant report the injury to management. He advised her that her foot would get
worse if she stayed on it.
In an April 5, 2006 letter, Postmaster Thompson stated that the videotape clearly showed
appellant leaving for the street. It was meant to be used in the postal inspector’s video machines
and not ones for home use. Mr. Thompson stated that the date and time of injury were verified
by appellant’s statements on her claim and made to Mr. Rodriguez. He noted that carts were not
pulled rather they were pushed for safety reasons. The videotape did not show appellant’s cart
tip or her balance. Contrary to her contention that she did not sustain a prior work injury,
Postmaster Thompson stated that she sustained injuries on April 15, 2002. He stated that all
employees were trained to immediately report accidents. The management team checked the
parking lot together with Mr. Hemmings and found no holes as reported by appellant.
In an undated narrative statement, Dominic Walton, a coworker and chief steward,
related that he clearly remembered asking appellant on the day after she reported her injury why
she was limping badly. She replied that she hurt her foot in the parking lot on the previous
evening. Mr. Walton spoke to Mr. Smith on several occasions and Mr. Smith never mentioned
that appellant was faking her injury. Mr. Smith was concerned about her receiving continuation
of pay and work duties within her restrictions.
In an April 14, 2005 report, Dr. Rizzo stated that appellant experienced tenderness in the
left foot.
By decision dated June 22, 2006, an Office hearing representative affirmed the
November 17, 2005 rescission of appellant’s claim.
In a September 6, 2006 letter, appellant, through counsel, requested reconsideration of the
June 22, 2006 decision. In a July 18, 2006 letter, Mr. Hemmings stated that on April 19, 2005
appellant instantly identified the pothole in the parking lot where her injury occurred which was
covered by a truck that she had moved. He noted that Mr. Rodriguez corrected appellant by
stating that this was an uneven surface and not a pothole. Mr. Rodriguez gave appellant a claim
form and told her to describe the accident site as an uneven surface and not a pothole. He also
told her to write an estimated time of injury since she was unsure about the time. Appellant
guessed the injury occurred around 1:30 p.m. Mr. Hemmings stated that Mr. Rodriguez told her
that she should have reported the accident when it first occurred. Appellant responded that she
reported it to Mr. Smith. Mr. Hemmings stated that Mr. Smith denied that Mr. Rodriguez
advised him of her injury. Appellant quickly informed Mr. Smith about the form she completed
which he signed on the same day. Mr. Hemmings related that Mr. Smith instantly retracted his
statement, stating that he thought appellant told him about a right foot injury. Mr. Hemmings
saw Mr. Smith provide appellant with assistance on her route between April 1 and 14, 2005
while her injury healed.
By decision dated December 15, 2006, the Office denied modification of the June 22,
2006 decision. The evidence submitted by appellant was insufficient to establish that the
March 31, 2005 injury occurred as alleged.

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In an April 9, 2007 letter, appellant, through counsel, requested reconsideration. A
March 10, 2007 letter of Chelsea Randolph, a coworker, stated that she saw appellant coming to
work everyday for about two weeks in April 2005 with very bad pain in her left foot. She and
her coworkers tried to convince appellant to see a physician but she refused because she did not
want to report an accident since it would look bad on her record. Appellant was soaking her foot
everyday and hoped that it would get better. The next time Ms. Randolph saw her, she was
wearing a boot on her foot. Appellant told her and Mr. Smith that her foot was not getting any
better and that she did not want to see a physician but, she would do so if it did not heal quickly.
In a March 10, 2007 letter, Robert Pallino, a coworker, stated that appellant sustained the
alleged injury because he talked to her before the injury and she was fine. Appellant was not
limping or complaining at all. On the next day, following the alleged injury, Mr. Pallino asked
appellant why she was limping. She stated that she hurt her foot in the parking lot the other day
and that she was waiting for it to heal. Soaking of the foot was not working and it was getting
worse. On at least one occasion, Mr. Pallino overheard a conversation between Mr. Smith and
appellant concerning the type of assistance that she would be given to compensate her injury.
In a June 27, 2007 decision, the Office denied appellant’s request for reconsideration on
the grounds that the evidence submitted was of an immaterial nature and, thus, insufficient to
warrant a merit review of its prior decisions.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of the Federal Employees’ Compensation Act provides that the Secretary of
Labor may review an award for or against payment of compensation at any time on her own
motion or on application.2 The Board has upheld the Office’s authority to reopen a claim at any
time on its own motion under section 8128 of the Act and, where supported by the evidence, set
aside or modify a prior decision and issue a new decision.3 The Board has noted, however, that
the power to annul an award is not an arbitrary one and that an award for compensation can only
be set aside in the manner provided by the compensation statute.4
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits.5 This holds true where, as here, the Office later decides
that it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, the
Office is required to provide a clear explanation of the rationale for rescission.6
2

5 U.S.C. § 8128.

3

John W. Graves, 52 ECAB 160, 161 (2000).

4

See 20 C.F.R. § 10.610.

5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

John W. Graves, supra note 3.

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ANALYSIS -- ISSUE 1
The Office rescinded acceptance of the claim because of inconsistencies in the record that
called into question whether appellant injured her left foot on March 31, 2005. It is the
employee’s burden to establish that his or her injury occurred at the time, place and in the
manner alleged.7 An injury does not have to be confirmed by an eyewitness to establish that it
occurred in the performance of duty.8 An employee’s statement regarding the circumstances
surrounding an injury is of great probative value and will be accepted unless refuted by
persuasive evidence.9 The employee’s statement must be consistent with the surrounding facts
and circumstances as well as the employee’s subsequent course of action.10 An employee has
not met his or her burden of proof where there are inconsistencies in the record that cast serious
doubt on the validity of the claim.11
The timing of appellant’s claimed left foot injury is uncertain. Appellant contended that
she sustained the injury at 1:30 p.m. in the employing establishment’s parking lot on
March 31, 2005. She referenced this time in her April 19, 2005 claim and narrative statements
and an August 23, 2005 statement. Appellant later stated that she did not really know what time
the left foot injury occurred. She was advised by Mr. Rodriguez and Mr. Hemmings to put 1:30
p.m. as the time of injury on her claim. Mr. Hemmings stated that appellant did not remember
the exact time of the alleged injury. He related that Mr. Rodriguez advised her to state that the
injury occurred at 1:30 p.m. Although appellant signed a routing slip on March 31, 2005 stating
that she twisted her foot while pushing her cart in the parking lot, she advised Mr. Smith that she
had elected to not file a CA-1 form at that time. She did not file her claim for the alleged injury
until 19 days later, on April 19, 2005. Appellant also delayed in seeking medical treatment. She
claimed that she first sought medical treatment on April 18, 2005 from Dr. Roter. However,
appellant later stated that she was treated by Dr. Rizzo on March 14, 2005. The Board notes that
this treatment predates the alleged injury. The record indicates that Dr. Rizzo actually evaluated
appellant on April 14, 2005. The statements of Mr. Walton and Mr. James indicated that they
saw appellant limping after the alleged injury. However, neither Mr. Walton nor Mr. James
stated that they actually witnessed appellant hurt her left foot in the parking lot on
March 31, 2005.
The postal inspector’s July 14, 2005 investigative report concluded that there was no
evidence to support a finding that appellant sustained an injury on March 31, 2005 at the time,
place and in the manner alleged based on a surveillance videotape and photographs of the
parking lot, the interviews of Postmaster Thompson, Mr. Smith and Mr. Rodriguez, time and
attendance records and appellant’s inconsistent statements and behavior following the alleged
injury. The videotape showed appellant loading her truck prior to 1:30 p.m. There was no visual
7

Delphyne L. Glover, 51 ECAB 146, 147-48 (1999).

8

Id.

9

Michelle Kunzwiler, 51 ECAB 334, 335 (2000).

10

Id.

11

Id.

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evidence of postinjury behavior by appellant such as, limping, favoring, walking slowly or
stopping to inspect her injury.
Postmaster Thompson stated that the videotape showed appellant in the parking lot at
12:40 p.m. and 12:47 p.m. He related that carts were pushed and not pulled for safety reasons.
Mr. Smith stated that the videotape did not show appellant slip, trip or fall while loading or
pushing a hamper to her truck. He also stated that she did not show any signs of duress.
Mr. Smith stated that Mr. Gary advised him about the alleged injury between 12:15 p.m. and
12:30 p.m. on March 31, 2005. He stated that appellant initially claimed an injury to her right
foot. Mr. Smith approved her leave on March 31, 2005 and noted that she did not require any
assistance leaving work. He indicated that time and attendance records showed that appellant
left work at 1:21 p.m. Appellant returned to work on April 2, 2005 and worked until
April 16, 2005. The postal inspector determined that she worked 9 out of 13 days following the
alleged injury before claiming total disability on or after April 19, 2005. Appellant also worked
overtime on April 1, 2, 9 and 11, 2005. Mr. Rodriguez stated that the videotape did not show
that appellant sustained an injury in the area she claimed. He stated that she was seen walking
without difficulty and pulling a hamper behind her.
Appellant’s misstatements regarding when and how her injury arose cast serious doubt on
her claim to have injured her left foot in the performance of duty on March 31, 2005. In the
November 17, 2005, June 22 and December 15, 2006 decisions, the Office clearly explained its
reason for rescinding acceptance of appellant’s claim. The Board finds that the Office met its
burden to rescind acceptance of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,12
the Office’s regulation provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.13 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.14 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
In an April 9, 2007 letter, appellant, through counsel, disagreed with the Office’s
December 15, 2006 decision, denying modification of the November 17, 2005 rescission of
12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(1)-(2).

14

Id. at § 10.607(a).

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acceptance of appellant’s claim because the factual evidence of record did not establish that she
sustained a claimed left foot injury as alleged, in the employing establishment’s parking lot on
March 31, 2005. The relevant issue in the case is the factual question of whether appellant has
established that she sustained an injury in the parking lot on March 31, 2005.
Appellant submitted letters from her coworkers, Ms. Randolph and Mr. Pallino which
stated that they saw appellant experiencing pain in her left foot and limping following the
March 31, 2005 incident. Although this evidence is new, it does not address the issue of whether
appellant’s injury occurred in the employing establishment’s parking lot on March 31, 2005.
The Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.15 Neither Ms. Randolph nor
Mr. Pallino stated that they witnessed appellant hurt her left foot in the parking lot on
March 31, 2005. Thus, the Board finds that the letters of Ms. Randolph and Mr. Pallino are not
relevant and thus, insufficient to warrant reopening appellant’s claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As she did not meet any of the necessary regulatory requirements, the Board finds that
she is not entitled to further merit review.16
CONCLUSION
The Board finds that the Office properly rescinded acceptance of appellant’s claim for a
contusion of the left foot. The Board further finds that the Office properly denied appellant’s
request for a merit review of her claim pursuant to 5 U.S.C. § 8128(a).

15

See Patricia G. Aiken, 57 ECAB 441 (2006).

16

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 2007 and December 15, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2008
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

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