United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Scranton, PA, Employer
__________________________________________

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

Docket No. 20-1090
Issued: September 9, 2021

Case Submitted on the Record

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

JURISDICTION
On April 27, 2020 appellant filed a timely appeal from an April 2, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated June 17, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 26, 2018 appellant, then a 69-year-old slaughter inspector, filed a traumatic injury
claim (Form CA-1) alleging that on that day he slipped and fell while exiting a freezer, injuring
1

5 U.S.C. § 8101 et seq.

his left knee, right shoulder, and right side of the body while in the performance of duty. 2 On the
reverse side of the claim form, the employing establishment checked a box marked “No” indicating
that he was not in the performance of duty at the time of the alleged incident. It explained that
while appellant was on the employing establishment premises during work hours, he was not
performing his assigned duties or in the area in which he would have been performing his assigned
duties/responsibilities at the time of the alleged employment incident. Appellant did not stop work.
In April 27, 2018 progress notes, Dr. Christine M. Stroka, Board-certified in family
medicine, noted that appellant fell at work on April 26, 2018, injuring his right shoulder and left
knee. She conducted a physical examination and diagnosed right shoulder contusion, right
shoulder rotator cuff syndrome, chronic bilateral low back pain with left-sided sciatica, protruding
lumbar disc, and bilateral foot drop.
A May 4, 2018 right shoulder x-ray revealed some mild degenerative changes.
In May 14, 2018 progress notes, Dr. Steven A. Sluck, Board-certified in family medicine,
noted that appellant fell at work, landing on his right shoulder. He diagnosed right shoulder joint
pain, right shoulder syndrome, and obesity. In a medical note of even date, Dr. Sluck excused
appellant from work indefinitely.
Appellant, in a May 22, 2018 statement, asserted that he slipped and fell at work on
April 26, 2018, striking his right shoulder on the floor. He noted having difficulty raising his arm
upward from his side to any more than a 45 degree angle. Appellant continued to work on April 27,
2018 and indicated that he could initially use his right arm with pain medication, but as a result of
increasing pain in the right shoulder he had to primarily use his left hand. He contended that there
was no doubt that his doctor believed his current shoulder condition was a direct result of the
alleged April 26, 2018 employment incident.
In support of his claim, appellant also submitted medical evidence predating the alleged
April 26, 2018 employment incident. An April 9, 2018 magnetic resonance imaging (MRI) scan
of the right shoulder revealed tendinopathy of the rotator cuff, small partial thickness tears of the
distal supraspinatus and subscapularis tendons, acromioclavicular (AC) arthrosis, mild joint
effusion, mild fluid in the subacromial subdeltoid bursa, a limited evaluation of the glenoid labrum
due to motion degradation, as well as a questionable tear of the inferior labrum and a small cluster
of inferior paralabral cysts. In April 13, 2018 progress notes, Dr. Sluck diagnosed right shoulder
rotator cuff syndrome, tearing of the right glenoid labrum, right shoulder joint pain, obesity, and
hyperlipidemia. In April 23, 2018 progress notes, Dr. Shazad L. Shaikh, an orthopedic surgery
specialist, noted that appellant experienced right shoulder pain from a January 2018 injury. He
diagnosed right shoulder rotator cuff impingement syndrome and right osteoarthritis of the AC
joint and the glenohumeral joint.
A May 30, 2018 MRI scan of the right shoulder demonstrated stable high-grade articular
surface tearing of the anterior right supraspinatus with associated moderate tendinopathy, stable
mild right infraspinatus tendinopathy, and stable degenerative right labral tearing with associated
2

Appellant has a previously accepted January 4, 2018 traumatic injury claim that was accepted for a left knee
contusion and right thigh muscle strain under OWCP File No. xxxxxx517. OWCP has not administratively combined
these files.

2

small inferior paralabral cyst formation. It also noted that the overall appearance of the rotator
cuff was unchanged from the April 9, 2018 right shoulder MRI scan.
In June 4, 2018 progress notes, Dr. Leslie A. Lyness, a neurosurgeon specialist, noted that
appellant had fallen seven times within the past years. She diagnosed multi-level lumbar
degenerative disc disease with radiculopathy and functional quadriceps weakness.
In June 25, 2018 progress notes, Victoria Nytch, a physician assistant, indicated that
appellant previously fell in January and again “approx[imately]” May 2018.3 She noted that he
had mild shoulder pain from the January 2018 fall and diagnosed right high grade partial thickness
of the rotator cuff, right biceps tendinitis, and right osteoarthritis of the AC joint and the
glenohumeral joint. In a medical note of even date, Ms. Nytch indicated that appellant was
scheduled for right shoulder surgery on July 3, 2018 and would need four to six months to recover.
In a July 2, 2018 attending physician’s report (Form CA-20), Dr. Shaikh noted that
appellant’s recent fall4 worsened his preexisting small partial rotator cuff tear from the
January 2018 fall. He diagnosed high grade partial thickness and an incomplete rotator cuff tear.
Dr. Shaikh opined that appellant’s recent fall advanced his preexisting rotator cuff tear to a point
where it usually would not heal on its own and that repetitive activity with the right arm could
make his condition worse.
In a July 3, 2018 development letter, OWCP informed appellant that his claim was initially
accepted as a minor injury, but was now being formally considered because he had requested
authorization for surgery. It advised him of the factual and medical evidence necessary to establish
his claim and provided a questionnaire for his completion. In a separate letter of even date, OWCP
requested additional information from the employing establishment. It afforded both parties 30
days to provide the requested evidence.
In a July 6, 2018 response to OWCP’s questionnaire and in a July 18, 2018 statement,
appellant reiterated that his injury occurred while in the performance of duty on April 26, 2018.
In a July 13, 2018 letter, the employment establishment reiterated that appellant had no specific
responsibilities or duties in the area where his injury occurred.
By decision dated August 17, 2018, OWCP accepted that the April 26, 2018 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
the evidence of record was insufficient to establish that the diagnosed medical conditions were
causally related to the accepted April 26, 2018 employment incident.
In a July 12, 2018 letter, Dr. Shaikh noted that appellant was seen on April 23, 2018 for
right shoulder pain caused by a fall in January 2018. He indicated that he was seen again on
June 25, 2018 after falling for the second time in April, which worsened his shoulder pain.
Dr. Shaikh opined that the May 30, 2018 MRI scan showed progression of appellant’s rotator cuff
tear to a high grade rotator cuff tear. He explained that a repetitive shoulder motion could also
3

In a July 9, 2018 letter, Ms. Nytch noted that appellant’s date of injury was incorrectly listed as May 2018 when
it should have been noted as April 2018.
OWCP subsequently received another copy of Dr. Shaikh’s July 2, 2018 Form CA-20. The report was identical
to his July 2, 2018 report except that the date of injury was corrected from May to April 2018.
4

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cause the progression of his rotator cuff tear. Dr. Shaikh indicated that appellant underwent
surgery on July 3, 2018.
On August 28, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In a September 6, 2018 statement, appellant explained that his previous January 2018 fall
occurred when he slipped on unseen black ice and fell while performing an ante-mortem
inspection.
In an October 24, 2018 letter, Dr. Shaikh reiterated that appellant had been under his care
since April 23, 2018 for right shoulder pain as a result of a work-related fall in January 2018. He
reported that he fell again on April 26, 2018, reinjuring his right shoulder. Dr. Shaikh repeated
that the May 30, 2018 MRI scan demonstrated progression of a rotator cuff tear. He indicated that
appellant was recovering well from his July 3, 2018 surgery and expected to return to full-time
work on October 29, 2018. In an undated letter, Dr. Shaikh again opined that there was a clear
progression of the rotator cuff tear due to the April 26, 2018 fall.
In a November 20, 2018 memorandum of telephone call (Form CA-110), appellant
explained that after his previous January 3, 2018 fall he did not initially experience right shoulder
pain until March 2018. He indicated that he had no other injury to the right shoulder prior to
January 2018.
By decision dated November 27, 2018, OWCP’s hearing representative set aside the
August 17, 2018 decision and remanded the case for referral to an OWCP district medical adviser
(DMA) to review the medical evidence of record and requested an explanation as to whether there
was causal relationship between appellant’s diagnosed progression of right shoulder tears and the
accepted April 26, 2018 employment incident.5
In a July 3, 2018 surgery note, Dr. Shaikh indicated that appellant underwent surgery
including right shoulder arthroscopy (rotator cuff repair), biceps tenotomy, extensive debridement,
subacrominal decompression with acromioplasty, and bone marrow aspiration.
On December 18, 2018 OWCP forwarded a statement of accepted facts (SOAF) and
appellant’s medical record to Dr. Kevin Kuhn, a Board-certified orthopedic surgeon serving as the
DMA, for an opinion as to whether appellant’s preexisting conditions progressed to the diagnosis
of right rotator cuff tears and whether the July 3, 2018 right shoulder surgery was warranted.
In his January 13, 2019 report, Dr. Kuhn reviewed the SOAF and medical records,
including the April 9 and May 30, 2018 MRI scans of the right shoulder, and opined that there was
no significant objective change in the magnitude or quality of the supraspinatus or subscapularis
partial thickness tears to indicate that the accepted April 26, 2018 employment incident resulted in
progression of appellant’s preexisting conditions as his tears were already present before his

5

The hearing representative noted that the medical evidence did not support that appellant sustained a right shoulder
injury as a result of the previously accepted January 4, 2018 employment injury.

4

April 26, 2018 injury. He concluded that the July 3, 2018 surgery was not related to any pathology
caused by the accepted April 26, 2018 employment incident.
By decision dated January 28, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between his diagnosed conditions and the accepted April 26, 2018 employment incident. It noted
that medical treatment was not authorized and any prior authorization should be terminated.
In a February 21, 2019 letter, Dr. Shaikh reiterated that appellant had been under his care
since April 23, 2018 and noted that he initially sustained a right shoulder injury from a previous
work-related fall in January 2018. He indicated that the May 30, 2018 right shoulder MRI scan
demonstrated a clear progression of the tear in size warranting surgical intervention. Dr. Shaikh
explained that a radiology report may not take into account the finer detail of the tear progression
that would distinguish between tears that may or may not need surgery, which would require a
surgeon to determine. In an undated supplemental letter, he noted that the May 30, 2018 MRI scan
revealed new tears that were not initially apparent on the April 9, 2018 MRI scan. Dr. Shaikh
opined that the April 26, 2018 fall was “a sufficient mechanism to aggravate and cause tear
progression” of appellant’s right shoulder rotator cuff.
OWCP received a compact disc read-only memory (CD ROM) and a digital video disc
(DVD) containing images from previously submitted diagnostic studies.
On March 21, 2019 appellant requested reconsideration.
By decision dated June 16, 2019, OWCP denied modification of its January 28, 2019
decision.
On January 3, 2020 appellant again requested reconsideration.
In a December 12, 2019 supplemental letter to his February 21, 2019 letter, Dr. Shaikh
clarified that the accepted April 26, 2018 employment incident was “the sufficient mechanism to
aggravate and cause tear progression of his right rotator cuff.”
In an undated statement, appellant summarized evidence submitted and argued that the
hearing representative had already accepted that Dr. Shaikh’s reports showed causal relationship
and that his surgery was related to one of his accepted employment traumas, including the one he
experienced in January 2018.
By decision dated April 2, 2020, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a), finding that Dr. Shaikh’s December 12, 2019
letter, as well as appellant’s statement, were substantially similar to evidence previously of record.

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not shown that OWCP erroneously applied or interpreted a specific point of
law; nor has he advanced a relevant legal argument not previously considered by OWCP. In
support of his request for reconsideration, appellant submitted a statement asserting that the
hearing representative in the November 27, 2018 decision had already accepted that the medical
evidence established causal relationship between the progression of his preexisting right shoulder
condition and the accepted April 26, 2018 employment incident. However, the Board notes that
the hearing representative did not make any findings on causal relationship and instead remanded
the case to OWCP for referral to a DMA for an opinion on whether appellant’s right shoulder
conditions were caused or aggravated by the accepted employment incident. Thus, appellant has
not provided any relevant legal argument not previously considered by OWCP. Therefore, he is

6

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3). 11
The underlying issue in the case is whether appellant has provided sufficient medical
evidence to establish that he sustained a shoulder condition of an aggravation of his preexisting
shoulder conditions as a result of the accepted April 26, 2018 employment incident.
Appellant’s request for reconsideration was accompanied by a December 12, 2019
statement from Dr. Shaikh who opined that the accepted April 26, 2018 employment incident was
“the sufficient mechanism” to aggravate and cause tear progression of his right rotator cuff. While
this statement is new, it is not relevant as it is substantially similar to his February 21, 2019 letter
finding that the accepted April 26, 2018 employment incident was “a sufficient mechanism” to
aggravate and cause tear progression of appellant’s right rotator cuff. Providing additional
evidence that either duplicates or is substantially similar to evidence already in the case record
does not constitute a basis for reopening a case. 12 As appellant did not provide relevant and
pertinent new evidence, he is also not entitled to a merit review based on the third requirement
under section 10.606(b)(3). 13
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C § 8128(a).

11

A.G., Docket No. 20-0290 (issued June 24, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

12
See G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3, 2020);
Eugene F. Butler, 36 ECAB 393, 398 (1984).
13

Supra note 7 at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

14

D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 9, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 10-556
Issued: October 21, 2010

Case Submitted on the Record

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

JURISDICTION
On December 8, 2009 appellant filed a timely appeal from the June 12, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on December 31, 2007.
FACTUAL HISTORY
On July 1, 2008 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on December 31, 2007 he sustained a right knee injury when he
slipped and fell on ice while delivering mail. His supervisor noted that she was not informed of
any incident until she inquired about appellant’s absence after February 28, 2008. The
employing establishment controverted the claim. It contended that he did not report the claimed
incident within 30 days, and he failed to provide medical documentation establishing a causal
relationship between his claimed condition and the alleged incident.

Appellant submitted a March 31, 2008 disability slip from Dr. Richard Meinig, a Boardcertified orthopedic surgeon. On June 12, 2008 Dr. Meinig diagnosed right knee meniscus tear
and recommended physical therapy.
In an undated statement, appellant indicated that on the date in question, his right foot
slipped on ice, sending his “full weight impact to [his] knee, hip and then [his] shoulder.” He
notified the station manager of the incident upon his return to the employing establishment.
Treatment was delayed until February 18, 2008 because medical coverage was not available
through his carrier until that time.
By letter dated July 22, 2008, the Office informed appellant that the evidence submitted
was insufficient to establish that the incident occurred as alleged or that he had sustained an
injury as a result of the alleged incident. He was advised to submit additional information and
evidence, including witness statements and a physician’s report, which contained a diagnosis and
explanation as to how his diagnosed condition resulted from the claimed employment event.
Appellant submitted February 18, 2008 progress notes, signed by Elizabeth Allen,
“ERA.” Ms. Allen stated that appellant “fell last year, [and had] never been the same. [He] had
another fall onto that right knee and hip around Christmas time.” Musculoskeletal examination
revealed decreased motion in the right knee and hip. Ms. Allen diagnosed joint pain in the right
knee and hip.
Appellant submitted progress notes for the period March 7 through April 16, 2008 from
Dr. Kent G. Roberson, Board-certified in the field of family medicine. On March 7, 2008
Dr. Roberson stated that appellant was experiencing right knee pain as a result of a fall. On
March 17, 2008 he indicated that appellant had a new problem, namely a meniscus injury.
In a report dated April 24, 2008, Dr. Meinig stated that appellant “took a fall in January
and describe[d] sort of a twisting type injury and ha[d] subsequently been plagued with a
catching-type sensation primarily along the medial aspect of the knee.” Physical examination
revealed tenderness along the medial joint line. X-rays were unremarkable for significant
osteoarthritis. A magnetic resonance imaging (MRI) scan showed some mucinoid changes in the
anterior cruciate ligament and a tear of the posterior horn of the medial meniscus. Dr. Meinig
diagnosed status post-traumatic meniscus tear of the right knee.
On May 7, 2008 appellant underwent a right medial meniscus degenerative tear
debridement, which was performed by Dr. Meinig. In a May 19, 2008 report, Dr. Meinig stated
that appellant had no effusion following his May 7, 2008 right knee arthroscopy.
The record contains a February 20, 2008 report of an x-ray of the right knee; a March 12,
2008 report of an MRI scan of the right knee; a May 15, 2008 hematology report; a May 16,
2008 emergency room departure summary and an August 11, 2008 patient information form.
In a decision dated September 3, 2008, the Office denied appellant’s claim. It accepted
that appellant had fallen on the ice on December 31, 2007. The Office found that the medical
evidence was insufficient to establish that the accepted incident caused his claimed right knee
condition.
On September 30, 2008 appellant requested an oral hearing.
2

Appellant submitted reports from Dr. Meinig for the period September 5, 2008 through
April 6, 2009. On September 12, 2008 Dr. Meinig stated that appellant was status post
arthroscopy for an injury dating back to December 2007, when he slipped and fell on ice “with a
worsening crescendo of symptoms over [the] [s]pring.” On September 26, 2008 Dr. Meinig
attempted to clarify the etiology of appellant’s knee condition, stating that, while delivering mail
on December 31, 2007, he slipped on an icy surface, twisted his right knee and fell on his right
shoulder. He diagnosed an acute tear of the meniscus and opined that the condition was
“completely compatible with his history of an injury on December 31, 2007.”
On October 7, 2008 Dr. Meinig diagnosed a meniscus tear. On February 2, 2009 he
reiterated the history of the December 31, 2007 injury and provided clinical findings, including
derangement of the right knee with posterior DVT (deep vein thrombosis). On April 6, 2009
Dr. Meinig released appellant to return to work with restrictions, which included lifting no more
than 25 pounds, no climbing or kneeling, twisting and sitting for no more than three hours per
day, and driving for no more than two hours per day.
Appellant submitted reports and treatment notes from Dr. Roberson for the period
November 3, 2008 through April 6, 2009. On November 3, 2008 Dr. Roberson stated that he
was treating appellant for a knee injury suffered on December 31, 2007 when he slipped and fell
at work. On November 11, 2008 he opined that appellant’s ongoing limitations were directly
related to the injury and treatment complications. On April 6, 2009 Dr. Roberson stated that
appellant sustained a meniscal tear of the right knee at work on December 31, 2007 and that his
current impairment was directly related to that injury. He indicated that appellant suffered a
DVT due to a postoperative complication following arthroplasty to repair the meniscal tear.
At the March 24, 2009 hearing, appellant recounted the history of the December 31, 2007
incident, reiterating that he sustained a meniscal tear in the right knee as a result of his fall. He
testified that he fell again on February 29, 2008, due to a weakness in the right knee created by
the December 31, 2007 fall.
On April 23, 2009 the employing establishment contended that appellant had not
established that his knee condition was caused by the December 31, 2007 fall, rather than a prior
injury.1 It argued that there were discrepancies in the evidence which cast doubt on appellant’s
claim.
By decision dated June 12, 2009, the Office hearing representative affirmed the denial of
appellant’s claim. He accepted that the incident occurred as alleged on December 31, 2007, but
found that the medical evidence was insufficient to establish that the accepted incident caused his
claimed right knee condition.
LEGAL PRECEDENT
The Act provides for payment of compensation for disability or death of an employee,
resulting from personal injury sustained while in the performance of duty.2 The phrase
1

The employing establishment notes that appellant had two prior claims, including a November 13, 2006 claim
for a right knee injury (File No. xxxxxx092).
2

5 U.S.C. § 8102(a).

3

“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place,
and in the manner alleged. The second is whether the employment incident caused a personal
injury, and generally this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 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 a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

20 C.F.R. § 10.303(a).

4

and the established incident or factor of employment.10 However, it is well established that
proceedings under the Act are not adversarial in nature and while the claimant has the burden of
establishing entitlement to compensation, the Office shares responsibility in the development of
the evidence to see that justice is done.11
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained a knee injury causally related to the accepted December 31, 2007 incident. The Office
accepted that the December 31, 2007 fall occurred as alleged, but found that there was
insufficient medical evidence to establish that appellant’s right knee condition was caused by the
accepted incident.
Dr. Meinig opined that appellant’s right knee condition was caused by the accepted
incident. On April 24, 2008 he provided a history of injury and examination findings. X-rays
were unremarkable for significant osteoarthritis, and an MRI scan showed a tear of the posterior
horn of the medial meniscus. Dr. Meinig diagnosed status post-traumatic meniscus tear of the
right knee, resulting from a twisting-type injury and fall. On May 7, 2008 he performed a right
medial meniscus degenerative tear debridement, which he noted on September 12, 2008 was for
an injury dating back to December 2007, when he slipped and fell on ice. On September 26,
2008 Dr. Meinig attempted to clarify the etiology of appellant’s knee condition, stating that
while delivering mail on December 31, 2007, he slipped on an icy surface, twisted his right knee
and fell on his right shoulder. He diagnosed an acute tear of the meniscus and opined that the
condition was “completely compatible with his history of an injury on December 31, 2007.”
Dr. Meinig’s reports contain a factual and medical history, examination findings and a specific
diagnosis. Although he did not fully explain the process whereby appellant’s diagnosed
meniscus tear could have resulted from twisting his knee and falling, his reports generally
support appellant’s claim that his diagnosed condition was caused by the accepted incident.
On November 3, 2008 Dr. Roberson stated that he was treating appellant for a knee
injury suffered on December 31, 2007, when he slipped and fell at work. On November 11,
2008 he opined that appellant’s ongoing limitations were directly related to the injury and
treatment complications. On April 6, 2009 Dr. Roberson stated that appellant sustained a
meniscal tear of the right knee at work on December 31, 2007 and that his current impairment
was directly related to that injury. His reports are not fully rationalized; but, they generally
support appellant’s claim and are consistent with his treatment for a meniscal tear of the right
knee which occurred on December 31, 2007.
While none of the medical reports of appellant’s attending physicians are completely
rationalized, they are consistent in indicating that he sustained an employment-related right knee
injury on December 31, 2007 and are not contradicted by any substantial medical or factual
evidence of record. While the reports are not sufficient to meet appellant’s burden of proof to
establish his claim, they raise an uncontroverted inference between appellant’s claimed condition
10

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

11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

and the accepted employment injury, and are sufficient to require the Office to further develop
the medical evidence and the case record.12 The case will be remanded to the Office to obtain a
rationalized opinion from a qualified physician as to whether appellant’s knee condition is
causally related to the accepted incident. After such development as it deems necessary, it
should issue an appropriate decision in order to protect his rights on appeal.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained an injury in the performance of duty on December 31, 2007.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent
with the terms of this decision.
Issued: October 21, 2010
Washington, DC

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

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

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

12

See Virginia Richard, supra note 11; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 21-0088
Issued: August 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 28, 2020 appellant, through counsel, filed a timely appeal from an August 31,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted December 5, 2019 employment incident.
FACTUAL HISTORY
On December 9, 2019 appellant, then a 65-year-old parcel post distribution machine
operator, filed a traumatic injury claim (Form CA-1) alleging that on December 5, 2019 she injured
her left shoulder and arm when pulling a cage of magazines while in the performance of duty. She
explained that she heard and felt a pop in her left shoulder, but did not immediately feel pain until
she continued to work. Appellant indicated that she subsequently experienced a tingling sensation
and slight pain in her left arm, as well as numbness to her little finger, when scanning mail. She
stopped work on December 5, 2019.
In a December 6, 2019 statement, appellant added that her pain radiated from her shoulder
down to her little finger on the left side which did not subside when treating with ice on her arm.
In an undated attending physician’s report, Part B of an authorization for medical
examination and/or treatment (Form CA-16), Dr. Richard J. Hedden, a urology specialist, indicated
that appellant had no preexisting condition, diagnosed arm strain and neuralgia, and checked a box
marked “Yes,” indicating that her conditions were caused or aggravated by the described
employment activity.
In a December 6, 2019 medical report, Dr. Hedden noted that appellant presented with pain
and numbness to her left arm after injuring it on December 5, 2019 when she was pulling and
moving a metal cage full of heavy materials at work. He conducted a physical examination and
diagnosed left upper extremity neuralgia and neuritis. Dr. Hedden recommended physical therapy.
In a work status report of even date, he again diagnosed neuralgia and neuritis and indicated that
appellant could return to work the next day with restrictions.
In a December 11, 2019 report, Harriet L. Yurkovich, a nurse practitioner, noted that
appellant’s injury was improving. She conducted a physical examination and diagnosed left upper
extremity neuralgia and neuritis. In a work status report of even date, Ms. Yurkovich released
appellant to work with restrictions.
In a December 20, 2019 report, Ms. Yurkovich reiterated her findings and diagnoses. In a
duty status report (Form CA-17) of even date, she noted that appellant injured her left shoulder
while pulling a cage.
In a January 3, 2020 report, Ms. Yurkovich reiterated her diagnoses and additionally
diagnosed left shoulder strain. In a work status report of even date, she released appellant to work
without restrictions.
OWCP, in a development letter dated January 22, 2020, informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work, and
while limited expenses had been authorized, a formal decision was now required. It advised her

2

of the type of medical evidence necessary to establish her claim. OWCP afforded appellant 30
days to provide the necessary evidence.
In a January 24, 2020 work status report, Ms. Yurkovich reiterated her diagnoses of
neuralgia and neuritis and released appellant to work without restrictions.
In a January 24, 2020 medical report, Dr. Walter N. Porter, an emergency medicine
specialist, indicated that appellant sustained a work-related left shoulder injury on December 5,
2019 while pulling a cage of heavy materials. He noted that although her pain ran down her left
arm, appellant could still move her arm. Dr. Porter conducted a physical examination and
diagnosed left upper extremity neuralgia and neuritis.
Dr. Dorothy S. Jennings, a family medicine specialist, in a January 31, 2020 work status
report, diagnosed neuralgia and neuritis and indicated that appellant could return to work without
restrictions.
By decision dated February 25, 2020, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence from a physician containing a medical
diagnosis in connection with the accepted December 5, 2019 employment incident. As such, it
concluded that the requirements had not been met to establish an injury as defined under FECA.
In a January 31, 2020 medical report, Dr. Jennings indicated that appellant still experienced
left shoulder pain and that she had not been working. She conducted a physical examination and
diagnosed left upper extremity neuralgia, left shoulder strain, and left elbow medial epicondylitis.
On March 10, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the telephonic hearing, held
on June 23, 2020, appellant again described the accepted December 5, 2019 employment incident
and noted diagnoses of left shoulder strain and neuralgia. Counsel argued that appellant offered a
contemporaneous medical report which consistently showed that she sustained a left shoulder
injury at work. The hearing representative held the case record open for 30 days to allow the
submission of additional evidence.
In a January 31, 2020 attending physician’s report (Form CA-20), Dr. Jennings again
indicated that appellant injured her left shoulder while pulling “magazine/package cage” at work
when her shoulder popped. She diagnosed left shoulder strain and neuralgia of the left upper
extremity. Dr. Jennings checked a box marked “Yes,” indicating that the diagnosed conditions
were caused or aggravated by an employment activity.
Appellant submitted copies of medical reports that were previously of record, including
Dr. Hedden’s December 6, 2019 medical report, Ms. Yurkovich’s December 11 and 20, 2019 and
January 2, 2020 reports, Dr. Porter’s January 24, 2020 report, and Dr. Jennings’ January 31, 2020
medical report. She also submitted copies of physical therapy reports dated December 6
through 20, 2019.
By decision dated August 31, 2020, OWCP’s hearing representative affirmed, as modified,
the February 25, 2020 decision, finding that the medical evidence of record was sufficient to
establish a diagnosed condition of left shoulder strain. He further found that the claim remained
3

denied, however, appellant failed to submit a rationalized opinion from her treating physician
explaining how her diagnosed left shoulder strain was causally related to the accepted December 5,
2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined 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 component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee.9

3

Supra note 2.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted December 5, 2019 employment incident.
In a Form CA-20 report dated January 31, 2020, Dr. Jennings diagnosed left shoulder strain
and neuralgia of the left upper extremity and checked a box marked “Yes” indicating that
appellant’s conditions had been caused or aggravated by an employment activity. Likewise, in an
undated Form CA-16 report, Dr. Hedden checked a box marked “Yes” indicating that appellant’s
conditions were caused or aggravated by the described employment activity. The Board, however,
has held that an opinion on causal relationship with an affirmative check mark, without more by
way of medical rationale, is insufficient to establish the claim.10 As such, these reports are
insufficient to establish appellant’s claim.
In a January 31, 2020 medical report, Dr. Jennings diagnosed left upper extremity
neuralgia, left shoulder strain, and left elbow medial epicondylitis. However, she did not offer any
opinion regarding the cause of appellant’s diagnosed conditions. The Board has held that 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.11 Thus, this report is insufficient to establish
causal relationship.
In his reports dated December 6, 2019, Dr. Hedden diagnosed left upper extremity
neuralgia and neuritis. Likewise, Dr. Porter, in his January 24, 2020 medical report, and
Dr. Jennings, in her January 31, 2020 work status report, diagnosed left upper extremity neuralgia
and neuritis. The Board notes that the assessments of neuralgia and neuritis are not considered
valid diagnoses as they refer to symptoms of an underlying condition.12 Furthermore, although
they noted that appellant was pulling a cage at work, Drs. Hedden, Porter, and Jennings did not
offer any opinion on causal relationship in connection with the accepted December 5, 2019
employment incident. The Board has long held that medical reports which do not provide a firm
diagnosis or fail to render an opinion on causal relationship are of no probative value and are
insufficient to establish the claim.13 As Drs. Hedden, Porter, and Jennings failed to explain how
the December 5, 2019 incident caused a diagnosed injury to appellant, these reports are also
insufficient to establish appellant’s claim.
The record contains reports from a nurse practitioner and physical therapists. The Board
has held that certain healthcare providers such as physician assistants, nurses, nurse practitioners,
10

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
11

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

See M.V., Docket No. 18-0884 (issued December 28, 2018) (neuritis is not a valid medical diagnosis). See also
C.W., Docket No. 20-0965 (issued February 5, 2021); S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket
No. 20-0112 (issued June 25, 2020) (pain is a symptom and not a compensable medical diagnosis).
13

C.D., Docket No. 20-0858 (issued November 30, 2020); A.K., Docket No. 20-0003 (issued June 2, 2020).

5

physical therapists, and social workers are not considered “physician[s]” as defined under FECA.14
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence to establish a left shoulder
condition causally related to the accepted December 5, 2019 employment incident, the Board finds
that she has not met her burden of proof.15
On appeal counsel argues that medical evidence should be read as a whole and that it
established causation. However, as explained above, the evidence of record lacks adequate
medical rationale on causal relationship and is, therefore, insufficient to meet appellant’s burden
of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted December 5, 2019 employment incident.

14
Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); 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); E.W., Docket No. 20-0338 (issued October 9, 2020); S.L., Docket No. 19-0603 (issued January 28,
2020) (nurse practitioners are not considered physicians as defined under FECA); Jane White, 34 ECAB 515, 518
(1983) (physical therapists are not considered physicians under FECA).
15

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 14-539
Issued: June 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 8, 2014 appellant filed a timely appeal from a November 26, 2013 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) overpayment decision.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $3,776.54 overpayment of compensation
for the period August 13 to September 21, 2013; and (2) whether he was at fault in the creation
of the $3,776.54 overpayment and, therefore, ineligible for waiver of recovery.
FACTUAL HISTORY
On July 18, 2012 appellant, then a 43-year-old city carrier, sustained an injury when he
tripped over a tree root. OWCP accepted the claim for contusion of the left foot, left plantar
1

5 U.S.C. § 8101 et seq.

fibromatosis, left tenosynovitis of the foot and ankle and a left calcaneal spur. Appellant stopped
work on August 29, 2012 and received wage-loss compensation for total disability. He was
placed on the periodic rolls.2
By letter dated November 8, 2012, OWCP advised appellant that he had been placed on
periodic rolls and outlined his entitlement to compensation benefits and his responsibility to
return to work in connection with the accepted injury. Appellant’s weekly pay rate was
calculated at $1,049.79. In an attached Form EN1049, OWCP notified him that in order to avoid
an overpayment of compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. If you receive your compensation via paper check, the payment shows the
period for which payment is made. If you have worked for any portion of this period return the
payment to this office, even if you have already advised OWCP that you are working.
Otherwise, an overpayment of compensation may result.
On September 30, 2013 the employing establishment notified OWCP that appellant had
returned to full-time light-duty work on August 13, 2013.
By letter dated October 8, 2013, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $3,776.54 from August 13 through
September 21, 2013 because he received wage-loss compensation after his return to full-time
work at regular salary. It noted that he was on periodic rolls and received net compensation
every 28 calendar days in the amount of $2,643.58, which he received for the periods July 28
through August 24, 2013 and August 25 through September 21, 2013. OWCP found that
appellant improperly received wage-loss compensation through September 21, 2013 because he
returned to full-time work on August 13, 2013, a period of 40 calendar days. Appellant’s
$2,643.58 net compensation was divided by the 28-calendar-day payment period totaling
$94.4135 received daily. The daily rate was multiplied by the 40 calendar days for which he was
overpaid resulting in an overpayment of $3,776.54. OWCP found that appellant received an
overpayment of $3,776.54 in wage-loss compensation while he had no loss of wages. It further
found that he was at fault in creating the overpayment because he accepted payments that he
knew or reasonably should have known to be incorrect after returning to work at full salary.
OWCP informed appellant of his review rights and instructed him to complete an enclosed
overpayment recovery questionnaire form (OWCP-20) and submit supporting documentation.
On October 11, 2013 appellant contested the overpayment, the finding of fault and
requested a telephone conference before OWCP. He disagreed that an overpayment occurred,
disputed the amount of overpayment or that he was at fault in the creation of the overpayment.
Appellant acknowledged that he returned to work on August 13, 2013 and argued that he notified
all departments involved. He relied on OWCP to make the proper changes once he returned to
work. Appellant stated that he should be entitled to his wage-loss compensation prior to
returning to work for the period July 28 to August 13, 2013. He further disputed that he was
overpaid for 40 calendar days and argued that he had days off between August 13 and
September 21, 2013. Appellant submitted an October 12, 2013 overpayment questionnaire,
which noted total monthly income of $4,758.16 and total monthly expenses of $4,754.95.
2

The Board notes that appellant received his OWCP compensation benefit payments by paper check on a
recurring basis.

2

By decision dated November 26, 2013, OWCP finalized the overpayment in the amount
of $3,776.54 from August 13 through September 21, 2013 because appellant received disability
compensation after his return to full-time work at regular salary. It found that he was at fault in
the creation of the overpayment and directed recovery in the full amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.4 OWCP’s regulations state in pertinent part: Compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.5 A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP’s procedures provide that an overpayment in compensation is created when
a claimant returns to work but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,776.54 from August 13 through September 21, 2013. On August 29, 2012 appellant was
placed on periodic rolls and received wage-loss compensation for total disability. The record
establishes that he returned to work full time, eight hours per day, at the employing
establishment on August 13, 2013 at his regular salary. Appellant continued to receive wageloss compensation for total disability through September 21, 2013. As noted, he is not entitled to
receive compensation for total disability after he has returned to work and earned his regular
salary.7 Accordingly, the Board finds that appellant received an overpayment of compensation.8
OWCP determined that from August 13 to September 21, 2013 appellant received
$3,776.54 in total net compensation but was not entitled to any compensation during this period.
It properly explained that his 28-day net disability compensation amounted to $2,643.58, the
equivalent of receiving $94.4135 daily. Appellant received wage-loss compensation from
3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500.

6

B.H., Docket No. 09-292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
7

Supra note 4 and 5. See also M.A., Docket No. 13-2137 (issued March 11, 2014).

8

R.W., Docket No. 13-1108 (issued September 10, 2013).

3

August 13 to September 21, 2013, a period of 40 days. OWCP multiplied the daily
compensation rate of $94.4135 by 40 calendar days to establish an overpayment in the amount of
$3,776.54.
On appeal, appellant asserts that the amount of the overpayment was incorrect as he did
not work 40 full calendar days from August 13 to September 21, 2013. This assertion is without
merit as the record reflects that he was on the periodic compensation rolls at the time in
question.9 Periodic rolls compensation payments are made on a calendar-day basis for which
OWCP’s procedures provide that the claimant receives pay for everyday of the week during the
period of disability, at the rate of one-seventh of the weekly compensation rate for each day.10
Appellant further argued that he was entitled to wage-loss compensation for the period prior to
his return-to-work date on August 13, 2013. The Board notes that he was properly paid wageloss compensation from June 28 to August 12, 2013. The $3,776.54 overpayment encompasses
the period August 13 to September 21, 2013.
OWCP properly explained how the overpayment occurred and provided this information
to appellant with the preliminary notice of overpayment. There is no evidence that the
overpayment did not occur as found by OWCP. The Board finds that OWCP properly
determined that he received an overpayment of compensation in the amount of $3,776.54 from
August 13 through September 21, 2013 for working with no loss of wages.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA11 provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.12 Thus, OWCP may not waive the overpayment of compensation
unless appellant was without fault.13 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.14
On the issue of fault, section 10.433 of OWCP’s regulations, provide 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

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.8(b)
(February 2013).
11

5 U.S.C. § 8129(b).

12

Michael H. Wacks, 45 ECAB 791, 795 (1994).

13

Norman F. Bligh, 41 ECAB 230 (1989).

14

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

4

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.”15
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.16
Section 10.430(a) of OWCP’s regulations advise that OWCP includes on each periodic
check a clear indication of the period for which payment is being made. A form is sent to the
recipient with each supplemental check, which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment.17
ANALYSIS -- ISSUE 2
OWCP applied the third standard and determined that appellant was at fault in the
creation of the overpayment because he accepted payments that he knew or should have known
to be incorrect. To establish that appellant was at fault in creating the overpayment of
compensation, OWCP must establish that, at the time he accepted the compensation checks in
question, he knew or should have known the payments were incorrect.18
As noted, OWCP erroneously issued wage-loss compensation for total disability for the
period of August 13 to September 21, 2013. Appellant was not entitled to disability
compensation for this period as he had returned to work at full salary. Even if the overpayment
resulted from negligence on the part of OWCP, this does not excuse him from accepting
payments which he knew or should have known to be incorrect.19 On November 8, 2012 OWCP
advised appellant: In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU GO BACK TO WORK. If you receive your compensation via
paper check, the payment shows the period for which payment is made. If you have worked for
any portion of this period return the payment to this office, even if you have already advised
OWCP that you are working. Otherwise, an overpayment of compensation may result.
In response to the preliminary overpayment notice, appellant stated that he notified all
departments involved and relied on OWCP to make the proper changes once he returned to work.
He advised that it would be a hardship for him to repay the overpayment. The Board notes that
OWCP includes on each periodic check a clear listing of the period for which payment is being
15

20 C.F.R. § 10.433(a).

16

Id. at § 10.433(b).

17

J.R., Docket No. 08-1107 (issued June 15, 2009). 20 C.F.R. § 10.430.

18

See Claude T. Green, 42 ECAB 174, 278 (1990).

19

See Russell E. Wageneck, 46 ECAB 653 (1995).

5

made. OWCP places the recipient on notice that a payment was made and the amount of the
payment.20 This, together with the strongly worded November 8, 2012 OWCP letter, establishes
that appellant should have known that he was not entitled to accept wage-loss compensation for
total disability for any period after he returned to work.21
For these reasons, OWCP properly found that appellant accepted wage-loss
compensation from August 13 to September 21, 2013, which he knew or should have known was
incorrect. As appellant was at fault under the third fault standard, outlined above, recovery of
the $3,776.54 overpayment of compensation may not be waived.22
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $3,776.54 for the period August 13 through September 21, 2013. The Board further finds that
he was at fault in creating the overpayment.

20

See J.R., supra note 17.

21

R.W., Docket No. 13-1285 (issued November 13, 2013).

22

On appeal, appellant argued that his finances prevented him from repaying the overpayment, but the method of
recovery of the overpayment is not within the Board’s jurisdiction. Lorenzo Rodriguez, 51 ECAB 295 (2000);
20 C.F.R. § 10.441. With respect to recovery of the overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits under FECA. L.D., Docket No. 08-678
(issued August 7, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE AIR FORCE, NELLIS
AIR FORCE BASE, NV, Employer
__________________________________________

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

Docket No. 18-1590
Issued: February 15, 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 August 16, 2018 appellant filed a timely appeal from a June 20, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the applicable
time limitation provisions of 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On April 5, 2018 appellant, then a 46-year-old retired motor vehicle operator/combat
logistics trainer, filed an occupational disease claim (Form CA-2) alleging that he sustained
osteoarthritis of the lumbar spine and bilateral knees and ankles causally related to factors of his
1

5 U.S.C. § 8101 et seq.

federal employment. He indicated that he first became aware of his claimed condition on
September 21, 2005 and realized its relation to his federal employment on October 10, 2010.
Appellant related that he had not filed his claim within 30 days of October 10, 2010 because
management had failed to inform him that he could file a claim. The employing establishment
indicated that appellant first reported his condition to his supervisor on March 30, 2018.
In reports dated February 1, 2010 and October 14, 2011, Dr. Steven R. Hoer, a Boardcertified orthopedic surgeon, related that he was treating appellant for degenerative conditions of
the lower extremities, including bilateral knee patellofemoral chondromalacia and osteoarthritis.
He advised that his work duties strained his lower extremities, and that squatting “particularly
would aggravate his knees.”
On March 20, 2018 Dr. Evelyn P. Padre, who specializes in family medicine, provided a
list of appellant’s military service-connected medical conditions, including lumbosacral or cervical
strain, and limited motion of the knee and ankle.
A notification of personnel action (Standard Form 50-B) indicated that appellant had
retired from the employing establishment on disability effective April 21, 2012.
In an April 10, 2018 letter, the employing establishment controverted appellant’s claim,
contending that it was untimely filed. It advised that he was last exposed to the conditions alleged
to have caused his condition on October 10, 2010 and had retired on April 21, 2012.
OWCP, in a development letter dated April 12, 2018, informed appellant that the evidence
submitted was insufficient to establish that he had timely filed a claim under section 8122(a). It
requested that he submit additional factual and medical evidence in support of his claim and
afforded him 30 days to respond. By letter of even date, OWCP also requested information from
the employment establishment relative to the circumstances of the claimed injury.
On April 18, 2018 P.A., a flight chief with the employing establishment, advised that none
of appellant’s supervisors were still working at the employing establishment.
In a May 14, 2018 statement, appellant related that he wanted to change the date that he
first became aware of the relationship between his work duties and his bilateral knee, ankle, and
lumbar conditions.2 He advised that he had noted the date he first believed that there was a
correlation between his condition and his federal employment instead of when he learned in
November 2016 of his right to file a claim for compensation. Appellant described the work factors
to which he attributed his condition. He related that he underwent a total knee replacement and
subsequently filed for disability retirement in 2011 after his physician had informed him that the
knee replacement would not last if he continued in his current occupation. Appellant advised that
he had retired in March 2012.

2

In a statement dated May 14, 2018, a Department of Veterans Affairs health clinic provided appellant’s diagnoses
and attributed his lumbar spondylolisthesis, degenerative disc disease, and bilateral degenerative knee disease to his
employment. In a May 14, 2018 report, Dr. Hoer advised that his employment had exacerbated his preexisting
conditions and contributed to his knee pain.

2

By decision dated June 20, 2018, OWCP denied appellant’s claim, finding that it was
untimely filed pursuant to 5 U.S.C. § 8122 as it was not filed within three years of the date of
injury and that there was no evidence that his immediate supervisor had actual knowledge of the
claim within 30 days of the injury.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability, or
death must be filed within three years after the injury or death.4
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and their federal employment. Such awareness is competent to start
the limitation period even though the employee does not know the precise nature of the impairment
or whether the ultimate result of such affect would be temporary or permanent.5 Where the
employee continues in the same employment after he or she reasonably should have been aware
that he or she has a condition which has been adversely affected by factors of federal employment,
the time limitation begins to run on the date of the last exposure to the implicated factors.6 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.7 It is the
employee’s burden of proof to establish that a claim is timely filed.8
ANALYSIS
The Board finds that appellant’s claim for compensation was not filed within the applicable
time limitation provisions of 5 U.S.C. § 8122(a).
The employing establishment indicated that appellant was last exposed to the work factors
implicated as causing his condition on October 10, 2010. Appellant retired from employment
effective April 21, 2012. He filed his occupational disease claim in April 2018, which is outside
the three-year time limitation period set forth in section 8122(a) of FECA.9

3

See G.M., Docket No. 18-0768 (issued October 4, 2018).

4

5 U.S.C. § 8122(a).

5

See supra note 3.

6

Id.

7

J.E., Docket No. 16-1493 (issued May 7, 2018).

8

Id.

9

See B.J. (W.H.), Docket No. 18-0910 (issued December 21, 2018).

3

In cases of latent disability, the time for filing a claim does not begin to run until the
claimant is aware, or by exercise of reasonable diligence, should be aware of the causal relationship
between his condition and his employment.10 Appellant has alleged that he first became aware of
his condition in September 2005 and attributed it to his federal employment later in October 2010.
He subsequently advised that he wanted to change the date of awareness as the employing
establishment did not notify him that he could file a claim for compensation. Appellant related
that he had believed that the question referred to when he became aware of a correlation between
the injury and his duties, rather than the date he learned that he could file an occupational disease
claim. In discussing the degree of knowledge required by an employee prior to filing a claim, the
Board has emphasized that he need only be aware of a possible relationship between his condition
and his employment to commence the statute of limitations.11 The Board has not required that
appellant have definite evidence of a condition and causal relationship on the date the claim is
filed.12 Appellant indicated that he first became aware of the relationship between his condition
and employment factors in October 2010. In a report dated February 1, 2010, Dr. Hoer advised
that appellant’s employment activities aggravated his lower extremity conditions. The Board finds
that, given the existence of this doctor’s visit and report, appellant knew or reasonably should have
known of a relationship between his condition and his employment by October 2010.13
Appellant’s lack of awareness of his ability to file a claim does not excuse his failure to file a
timely claim.14
Appellant’s claim would still be regarded as timely under FECA if his immediate
supervisor had actual knowledge of his injury within 30 days or if written notice of injury was
given to his immediate supervisor within 30 days of injury as specified in section 8119. The
employing establishment indicated that he had reported his claimed condition on March 30, 2018.
Appellant has not submitted evidence supporting that his supervisor had actual knowledge of his
injury within 30 days or that he provided written notice of his injury to his immediate supervisor
within 30 days of injury.15
On appeal appellant argues that the employing establishment failed to inform him of his
eligibility to file a claim for workers’ compensation. Section 8122(d)(3) of FECA provides that
the time limitations for filing a claim do not run against an individual whose failure to comply is
excused by the Secretary when such notice could not be given because of exceptional
circumstances.16 None of the exceptions relating to appellant’s ability to file a claim apply in this
case. Appellant was not a minor, he has not alleged that he was incompetent, and he has not
provided evidence of an exceptional circumstance that would excuse his failure to timely file a
10

J.T., Docket No. 18-0220 (issued July 27, 2018).

11

Id.

12

Id.

13

See J.Y., Docket No. 16-0332 (issued June 8, 2016).

14

Supra note 9.

15

Supra note 10.

16

5 U.S.C. § 8122(d)(3).

4

claim.17 As previously noted, the Board has held that an employee’s ignorance or
misunderstanding of his or her ability to file a claim does constitute exceptional circumstances that
could excuse a failure to file a timely claim.18 Appellant has not established that he was prevented
from filing a timely claim by exceptional circumstances as that term is used in section
8122(d)(3) of FECA. The Board thus finds that he has not established that he timely filed a claim
for compensation.19
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’s claim for compensation was not filed within the applicable
time limitations provisions of 5 U.S.C. § 8122(a).

17

See G.V., Docket No. 14-0876 (issued May 27, 2014).

18

Supra note 9.

19

See L.G., Docket No. 16-0535 (issued February 6, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the June 20, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 15, 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

6