United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

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

Docket No. 20-1312
Issued: April 26, 2021

Case Submitted on the Record

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

JURISDICTION
On June 22, 2020 appellant filed a timely appeal from a March 3, 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 December 6, 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 3, 2020 decision, appellant submitted 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 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 August 13, 2019 appellant, then a 53-year-old mine safety and health inspector, filed
an occupational disease claim (Form CA-2) alleging that he developed binaural hearing loss due
to factors of his federal employment, including noise exposure to mining and drilling machinery.
He noted that he first became aware of his condition and its relationship to his federal employment
on June 18, 2019. Appellant did not stop work.
In an accompanying narrative statement, appellant listed his work assignments at various
mining sites. He noted that he was exposed to noise from mining and drilling equipment for 50 to
60 hours per week from May 1984 through October 1997, 60 to 70 hours per week from
October 1997 through November 1999, more than 70 hours per week from November 1999
through September 2004, 60 to 70 hours per week from September 2004 through September 2006,
and 40 hours per week from September 2006 to the present.
In an August 13, 2019 statement, appellant’s supervisor, W.C., noted that the employing
establishment conducted noise surveys at surface and underground coal mines and facilities. He
confirmed that appellant was exposed to hazardous noise levels since 2006 as he was involved
with mine inspection and investigation activities. W.C. noted that appellant was exposed to noises
from large mine fans, roof bolting machines, mining machines, bulldozers, front-end loaders,
shovels, crushers, graders, and other surface equipment. He further noted that appellant’s
employment required him to be in close proximity to machinery and to observe it in an operational
state.
In a development letter dated September 4, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information, including comments from a knowledgeable supervisor and an explanation
of appellant’s work activities and noise exposure. It afforded both parties 30 days to submit the
necessary evidence.
OWCP subsequently received audiological reports, audiograms, and physical examination
reports, dated August 1, 2006 through June 18, 2019, from the employing establishment, related
to appellant’s hearing loss and exposure to noise.
On September 9, 2019 appellant responded to OWCP’s development questionnaire. He
noted that he remained exposed to hazardous noise at work. Appellant indicated that he had not
previously filed any workers’ compensation claims for a hearing or ear condition and did not serve
in the military. He noted that he had tinnitus and that he was exposed to loud noise while
performing yard care for one to three hours per month.

2

On November 5, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. William Brown, an audiologist, for audiometric testing,
and to Dr. Andrew Mickler, a Board-certified otolaryngologist, for a second opinion evaluation.
In a November 21, 2019 report, Dr. Brown conducted an audiometric test, which revealed
losses of 25, 30, 40, and 65 decibels (dBs) on the right and 35, 35, 55, and 75 dBs on the left at
500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively.
In a November 21, 2019 narrative report, Dr. Mickler reviewed appellant’s medical record
and the SOAF, performed a physical examination, and completed OWCP’s evaluation
questionnaire. He noted that there was no significant variation from the SOAF. Dr. Mickler
diagnosed sensorineural hearing loss and tinnitus. He indicated that appellant’s workplace
exposure was “sufficient as to intensity and duration to have caused the loss in question.”
Dr. Mickler further noted that appellant’s November 21, 2019 audiogram was similar to his
August 1, 2006 baseline audiogram and opined that his conditions were not due to his federal
employment. He attached a tinnitus handicap inventory (THI), dated December 2, 2019, which
showed that appellant had severe tinnitus.
By decision dated December 6, 2019, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish hearing loss
causally related to the accepted factors of his federal employment.
On December 23, 2019 appellant requested reconsideration. He asserted that his previous
audiograms were not thoroughly evaluated. Appellant argued that his August 11, 2006 audiogram
should have been used as a baseline as opposed to his August 1, 2006 audiogram. He explained
that, in August 2006, he was diagnosed with moderate hearing loss and then, in November 2009,
he was diagnosed with mild-to-severe hearing loss. Appellant noted that the “audiogram on
August 1, 2006 was not accepted because it did not meet [employing establishment] standards, but
is being used for a baseline.” He queried, “[i]f a[n] audiogram is not acceptable, how can it be
considered as a baseline?” Appellant submitted noise reports, dated July 30, 2007 through
September 4, 2019, which showed levels of noise exposure at his various job sites.
By decision dated March 3, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
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 or her own motion or on application.3
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

3

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

3

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely request for reconsideration, appellant asserted that his prior audiograms were
not properly evaluated. He argued that his August 11, 2006 audiogram should have been used as
a baseline as opposed to his August 1, 2006 audiogram. Appellant contended that his August 1,
2006 audiogram was used as a baseline despite being declared unacceptable for not meeting the
employing establishment’s standards. He further asserted that his hearing loss increased when
comparing the August 2006 audiograms to a November 2009 audiogram. The Board finds that
appellant’s legal arguments are new and relevant to the underlying issue in this case of whether
his diagnosed hearing loss is causally related to the accepted factors of his federal employment.8
As appellant has advanced a new and relevant legal argument, he is entitled to a review of
the merits of the claim under section 10.606(b)(3) of OWCP’s regulations.9 Following any further
development as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s
claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020).

6

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see J.V., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

8

See M.L., Docket No. 20-0605 (issued January 27, 2021).

9

See D.T., (L.S.), Docket No. 19-1060 (issued October 20, 2020); J.T., supra note 3; T.P., Docket No. 18-0608
(issued August 2, 2018); see L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued
July 6, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
PEACE CORPS, Oshikuku, Republic of Namibia,
Employer
__________________________________________

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

Docket No. 07-621
Issued: June 19, 2007

Case Submitted on the Record

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

JURISDICTION
On January 3, 2007 appellant filed an appeal of a November 20, 2006 decision in which
the Office of Workers’ Compensation Programs denied her request for a review of the written
record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
November 20, 2006 decision denying appellant’s written review request. Because more than one
year has elapsed between the most recent merit decision of the Office dated November 2, 2005
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record.
FACTUAL HISTORY
On January 20, 2005 appellant, then a 66-year-old former Peace Corps volunteer, filed a
traumatic injury claim, Form CA-1, alleging that on January 10, 2004 she sustained a right

rotator cuff tear while serving as a volunteer in Namibia. She underwent surgical repair on
November 29, 2004. On March 7, 2005 the Office accepted that appellant sustained a right
rotator cuff tear and right shoulder impingement related to her Peace Corps duties. On
March 13, 2005 she filed a schedule award claim.
In a report dated February 14, 2005, Dr. William A. Ross, Jr., an attending Boardcertified orthopedic surgeon, advised that maximum medical improvement had been reached. He
stated that on physical examination of the right shoulder flexion, extension, abduction, internal
and external rotation were within normal limits and advised that, based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides),1 she had zero percent impairment. In an October 27, 2005 report, an Office
medical adviser stated that, because appellant had full postoperative recovery and full range of
motion of the right shoulder, she was not entitled to a schedule award.
By decision dated November 2, 2005, the Office found that appellant was not entitled to a
schedule award. Appellant’s appeal rights were attached. On November 8, 2005 she requested
reconsideration. In a December 9, 2005 decision, the Office denied her request. On
September 18, 2006 appellant requested a hearing and on October 16, 2006 a review of the
written record.2 With her request she submitted duplicates of evidence previously of record.
By decision dated November 20, 2006, an Office hearing representative denied
appellant’s request for a review of the written record. The hearing representative noted that, as
appellant had previously requested reconsideration, she was not entitled to a record review as a
matter of right and further denied the request on the grounds that the issue in the case could be
fully addressed by requesting reconsideration with the Office and submitting evidence not
previously considered to establish that she was entitled to a schedule award.
LEGAL PRECEDENT
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.3 The Board has held that the Office, in its broad discretionary
authority in the administration of the Act, has the power to hold hearings in certain
circumstances where no legal provision was made for such hearings and that the Office must

1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

By letter dated July 25, 2006, appellant referenced her November 18, 2005 reconsideration request and
submitted additional evidence including an April 11, 2006 report in which Dr. Hugh C. McLeod, III, a Boardcertified orthopedic surgeon, advised that she had no impairment. In a response dated August 1, 2006, the Office
informed appellant that the purpose of her letter was unclear and advised her to follow the appeal rights contained in
the December 9, 2005 decision.
3

Claudio Vazquez, 52 ECAB 496 (2001).

2

exercise this discretionary authority in deciding whether to grant a hearing.4 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.5
ANALYSIS
In its November 20, 2006 decision, the Office denied appellant’s request for a review of
the written record on the grounds that she had previously requested reconsideration with the
Office. The Office properly found that appellant was not, as a matter of right, entitled to a
hearing since she had previously requested reconsideration. The Office noted that it had
considered the matter in relation to the issue involved and indicated that appellant’s request was
also denied on the basis that the issue of whether she was entitled to a schedule award could be
addressed through a reconsideration application.
While the Office also has the discretionary power to grant a request for a review of the
written record when a claimant is not entitled to a hearing as a matter of right, the Office, in its
November 20, 2006 decision, properly exercised its discretion by stating that it had considered
the matter in relation to the issue involved and had denied appellant’s request on the basis that
the issue of whether she was entitled to a schedule award could be addressed through a
reconsideration application. The Board has held that, as the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.6 In the present case, the evidence of record
does not indicate that the Office committed any act in connection with its denial of appellant’s
request for a review of the written record which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a review of the
written record.

4

Marilyn F. Wilson, 52 ECAB 347 (2001).

5

Claudio Vazquez, supra note 3.

6

See id.; Daniel J. Perea, 42 ECAB 214, 221 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2006 be affirmed.
Issued: June 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Del Rio, TX, Employer
)
__________________________________________ )
R.M., Appellant

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

Docket No. 13-531
Issued: June 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 7, 2013 appellant, through his representative filed a timely appeal from a
December 11, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. Because more than 180 days elapsed from the
last merit decision of November 3, 2010 to the filing of this appeal, the Board lacks jurisdiction
to review the merits of appellant’s case pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 2, 2012, the
Board affirmed OWCP decisions dated November 9 and December 5, 2011 denying appellant’s
request for a merit review related to an additional schedule award. The Board found that OWCP
properly denied his requests as appellant failed to submit any new medical evidence addressing
the extent and degree of any employment-related impairment that might arguably impact his
prior schedule award decision. The Board also found that appellant failed to advance a point of
law not previously considered or show that OWCP erroneously applied or interpreted a point of
law. The facts and circumstances of the case are set forth in the Board’s prior decision and are
incorporated herein by reference.2
On October 26, 2012 appellant’s counsel requested reconsideration and submitted a
March 26, 2012 report from Dr. Timothy S. Palomera, an attending Board-certified family
medicine practitioner, who diagnosed osteoarthritis which had worsened since he first evaluated
appellant in January 2005. Dr. Palomera noted that a torn meniscus destabilizes the knee,
changes the weight-bearing mechanics and was a significant contributing factor to premature
knee osteoarthritis. He did not address permanent impairment.
By decision dated December 11, 2012, OWCP denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP 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.5 When a claimant fails to meet one of the above standards, OWCP

2

On January 19, 2005 appellant, then a 49-year-old supervisory deputy, filed a traumatic injury claim alleging
that on January 17, 2005 he injured his right knee while jogging when he stepped in a hole and fell on his right side.
OWCP accepted the claim for right knee meniscus lateral cartilage tear, right lower leg osteoarthritis and displaced
lumbar intervertebral disc.
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

2

will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
Appellant’s October 26, 2012 request for reconsideration did not allege or demonstrate
that OWCP erroneously applied or interpreted a specific point of law. Moreover, he did not
advance any legal argument not previously considered by OWCP. Therefore, appellant is not
entitled to a review of the merits based on the first and second above-noted requirements under
section 10.606(b)(2).7
Appellant also failed to submit any relevant and pertinent new evidence with his
October 26, 2012 request for reconsideration. Although Dr. Palomera’s March 26, 2012 report
was new to the record, the report did not address the issue of the extent or degree of any lower
extremity impairment under the A.M.A., Guides (6th ed.); but noted the impact of a torn
meniscus on the development of knee osteoarthritis.8 Appellant did not provide any new medical
evidence that relevant to the prior schedule award decision.
As appellant failed to meet any of the criteria for a merit review, the Board finds that
OWCP did not abuse its discretion in refusing to reopen his claim for a review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s October 26, 2012 request for
reconsideration.

6

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

Id. at § 10.606(b)(2)(1) and (2).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000) (evidence which does not
address the particular issue involved does not constitute a basis for reopening a case for a merit review).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 11, 2012 is affirmed.
Issued: June 4, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairfield, CT, Employer
__________________________________________

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)

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

Docket No. 06-1296
Issued: March 7, 2007

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 May 22, 2006 appellant, through counsel, filed a timely appeal of a May 1, 2006
merit decision of an Office of Workers’ Compensation Programs’ hearing representative,
affirming the termination of her compensation benefits because she refused an offer of suitable
work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this termination case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective December 26, 2004 on the grounds that she refused an offer of suitable work, pursuant
to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
This case has twice been on appeal before the Board. In a May 4, 1995 decision, the
Board found that appellant had not shown a change in the nature of her light-duty job and that
the medical evidence was insufficient to establish that she sustained a recurrence of total

disability on or after September 20, 1991, causally related to her November 30, 1977
employment injuries.1 In a decision dated February 8, 2000, the Board found that appellant
failed to establish that she sustained a recurrence of disability on or after September 20, 1991
causally related to her November 30, 1977 accepted employment injuries. The Board further
found that the Office properly denied appellant’s January 22 and May 19, 1997 requests for
reconsideration under 5 U.S.C. § 8128(a).2 The facts and the circumstances of the case as set
forth in the Board’s prior decisions are incorporated herein by reference. The facts and the
history relevant to the present issue are set forth.
On November 30, 1977 appellant, then a 28-year-old clerk, sustained injury to her back,
neck and head as a result of being rear-ended while driving an employing establishment vehicle.
She stopped work on December 1, 1977. The Office accepted appellant’s claim for lumbar and
cervical strains, right central herniated nucleus pulposus at L4-5 and temporary post-traumatic
depression. On August 3, 1991 appellant returned to part-time limited-duty work. She stopped
work again on October 21, 1991 alleging that she sustained a recurrence of disability on
September 20, 1991 causally related to her November 30, 1977 employment-related injuries.
Appellant has not returned to work.
By letter dated July 13, 2004, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. C. David Bomar, a
Board-certified surgeon, for a second opinion medical examination to determine her ability to
perform limited-duty work. In a July 30, 2004 medical report, Dr. Bomar reviewed a history of
appellant’s November 30, 1977 employment injuries and medical treatment. He noted her
complaint of neck and back pain. Dr. Bomar reported essentially normal findings on physical
examination with the exception of pain in the cervical and lumbar spines. He opined that there
were no objective findings to support appellant’s subjective complaints and that any cervical and
lumbar strain had long since resolved. Dr. Bomar stated that no further medical treatment was
necessary and that appellant could perform full-time work with a lifting restriction of no more
than 30 pounds. He concluded that she had reached maximum medical improvement.
On August 10, 2004 the employing establishment offered appellant a mail processing
clerk position based on the restrictions set forth in Dr. Bomar’s July 30, 2004 report. The
position involved sorting and distributing mail to post offices and to carrier routes in accordance
with the appropriate sort program or distribution scheme. It also may require the performance of
a variety of services at public windows or post offices and post office branches or stations. The
position also required the performance of related duties as assigned. The physical requirements
included no lifting or carrying more than 30 pounds, sitting, standing, walking and simple
grasping eight hours per day, bending/stooping and twisting five hours per day, pulling/pushing
two hours per day and reaching above the shoulder six hours per day.
In an August 20, 2004 letter, the Office advised appellant that a suitable position based
on Dr. Bomar’s July 30, 2004 opinion was available and that she had 30 days to either accept the
position or arrange for the submission of a medical report. It further advised that her
1

Docket No. 93-2366 (issued May 4, 1995).

2

Docket No. 98-543 (issued February 8, 2000).

2

compensation would be terminated based on her refusal to accept a suitable position or to
demonstrate that her refusal was justified.
On August 20, 2004 the Office received appellant’s August 17, 2004 rejection of the job
offer. She contended that she was still disabled and unable to perform the duties of the offered
position due to her November 30, 1977 employment-related injuries. Appellant further stated
that she would submit medical evidence in the near future. None was forthcoming.
By decision dated December 10, 2004, the Office terminated appellant’s compensation
benefits effective December 26, 2004 on the grounds that she refused an offer of suitable work.
The Office found that Dr. Bomar’s July 30, 2004 report constituted the weight of the medical
opinion evidence as it was comprehensive and well rationalized. In a January 4, 2005 letter,
appellant requested an oral hearing before an Office hearing representative.
By letter dated February 5, 2006, appellant’s counsel advised the Office that he would not
be able to attend the hearing scheduled for February 14, 2006. He requested a hearing by
telephone conference. In a letter dated February 28, 2006, the Office advised appellant that her
request for postponement of the hearing was denied. It further advised that the hearing could not
be rescheduled and, thus a review of the written record would be conducted.
The Office received a February 14, 2006 medical report of Dr. Albert F. Walters, a
Board-certified internist, who provided a history that in 1977 appellant sustained disabling workrelated injuries. Dr. Walters noted that she attempted to work from August to October 1991 but
was unable to continue due to her original symptoms. He stated that, over this period, appellant
saw multiple specialists and a February 1996 magnetic resonance imaging (MRI) scan
demonstrated evidence of reversal of the normal curvature of the cervical spine and an anterior
and posterior herniated disc at C5-6. Dr. Walters further stated that, when he last examined
appellant in January 2005, she was still symptomatic. He opined that she would most likely
remain symptomatic indefinitely.
By decision dated May 1, 2006, an Office hearing representative affirmed the
December 10, 2004 termination decision. She found that Dr. Bomar’s July 30, 2004 report
constituted the weight of the medical opinion evidence.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits. Under section 8106(c)(2) of the Federal Employees’
Compensation Act,3 the Office may terminate the compensation of an employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for the employee.4

3

U.S.C. §§ 8101-8193.

4

Patrick A. Santucci, 40 ECAB 151 (1988); Donald M. Parker, 39 ECAB 289 (1987).

3

Section 10.516 of the implementing regulation5 provides in pertinent part:
“[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.”
Section 10.517 of the implementing regulation6 further provides:
“(a) 5 U.S.C. § 8106(c) provides that a partially disabled employee who refuses to
seek suitable work or refuses to or neglects to work after suitable work is offered
to or arranged for him or her, is not entitled to compensation. An employee who
refuses or neglects to work after suitable work has been offered or secured for him
or her has the burden to show that this refusal or failure to work was reasonable or
justified.
“(b) After providing the two notices described in sec[tion] 10.516, [the Office]
will terminate the employee’s entitlement to further compensation under 5 U.S.C.
§§ 8105, 8106 and 8107, as provided by 5 U.S.C. § 8106(c)(2). However, the
employee remains entitled to medical benefits as provided by 5 U.S.C. § 8103.”
ANALYSIS
In this case, the Board finds that the Office did not meet its burden of proof to terminate
appellant’s compensation benefits on the grounds that she refused an offer of suitable work. On
August 20, 2004 the employing establishment offered appellant a modified mail processing clerk
position based on the July 30, 2004 medical opinion of Dr. Bomar, an Office referral physician.
Dr. Bomar opined that there were no objective findings to substantiate appellant’s subjective
complaints and that her cervical and lumbar strains had long since resolved. He further opined
that she was capable of working full time with the restriction of lifting no more than 30 pounds.
The Office, by letter dated August 20, 2004, found that the position was suitable and allowed
appellant 30 days to accept the position or offer reasons for her refusal. On August 17, 2004
appellant rejected the job offer, stating that she was still disabled and that she would submit
medical evidence supportive of her continuing disability. On September 14, 2004 she requested
additional time to submit medical evidence supportive of her continuing disability because she
was grieving the death of her father-in-law. The Board notes that appellant did not submit any
additional medical evidence.

5

20 C.F.R. § 10.516.

6

Id. at § 10.517(a), (b).

4

In the case of Maggie L. Moore,7 the Board held that, when the Office makes a
preliminary determination of suitability and extends the claimant a 30-day period either to accept
or to give reasons for not accepting, the Office must consider any reasons given before it can
make a final determination on the issue of suitability. Should the Office find the reasons
unacceptable, it may finalize its preliminary determination of suitability, but it may not invoke
the penalty provision of 5 U.S.C. § 8106(c) without first affording the claimant an opportunity to
accept or refuse the offer of suitable work with notice of the penalty provision. In the instant
case, the Office did not follow these procedures and; therefore, did not afford appellant the
protections set forth in Moore.8 The Office gave appellant a reasonable opportunity to accept the
offer of employment and notified her of the penalty provision of 5 U.S.C. § 8106(c). However, it
failed to properly consider her stated reason for refusing the job offer in determining the
suitability of the offered position. It did not provide appellant with 15 days to accept the offered
position with no penalty before issuing the December 10, 2004 termination decision. The Board
finds that the Office improperly terminated appellant’s compensation benefits on the grounds
that she refused an offer of suitable work.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective December 26, 2004 on the grounds that she refused an offer of suitable
work because it improperly invoked the penalty provision of 5 U.S.C. § 8106(c).

7

42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992); see also Linda Hilton, 52 ECAB 476 (2001).

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2006 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 7, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Norfolk, VA, Employer
__________________________________________

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

Docket No. 16-1888
Issued: November 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 26, 2016 appellant filed a timely appeal from a September 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $36,113.59 for the period August 24, 2003 to November 14, 2015 as he received
wage-loss compensation benefits for a period in which he had no loss of wages; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.

1

Appellant timely requested oral argument before the Board. By order dated September 1, 2017, the Board
exercised its discretion and denied the request, finding that the issues could properly be adjudicated based on the
evidence of record. Order Denying Request for Oral Argument, Docket No. 16-1888 (issued September 1, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 21, 2001 appellant, then a 42-year-old machinist,
sustained an aggravation of back pain and cervical spondylosis without myelopathy while
handling heavy tools. On March 26, 2001 he underwent authorized anterior cervical
discectomies with fusion at C3-4 and C6-7. Following a period of recuperation during which he
received compensation, appellant returned to work as a supply technician on October 20, 2002
with permanent lifting restrictions preventing him from working as a machinist.
In a February 12, 2003 letter, OWCP adjusted appellant’s compensation effective
October 20, 2002 to reflect his actual earnings as a supply technician. It noted that appellant’s
date-of-injury machinist job paid $18.91 an hour, whereas the supply technician position paid
$17.12 an hour.3
An August 24, 2003 notice of personnel action (Form SF-50) notes appellant’s change of
position that day from a supply technician, earning $37,237.00 annually, to a purchasing agent,
earning $41,380.00 annually or $795.77 weekly. As of August 24, 2003 appellant’s date-ofinjury position as a machinist paid $716.10 a week. The record indicates that appellant
continued to receive wage-loss compensation.
In a January 15, 2008 letter, appellant advised OWCP that his salary increased due to a
promotion and that he should no longer be receiving wage-loss compensation. By January 17,
2008 letter, OWCP advised him that “[b]ased on the regulations you are entitled to the
continuing compensation you currently receive. Specifically, you have not been overpaid and
this office does not anticipate declaring an overpayment on this issue.”
As of November 14, 2015 appellant continued work as a purchasing agent having
received periodic increases in salary. OWCP calculated that from August 24, 2003 through
November 14, 2015, appellant received $36,113.59 in wage-loss compensation as he no longer
had any loss of wage-earning capacity.
By merit decision dated November 19, 2015, OWCP retroactively adjusted appellant’s
compensation effective August 24, 2003, finding that his actual earnings of $795.77 as a
purchasing agent exceeded the $716.10 weekly wages of his date-of-injury machinist job. It
terminated appellant’s entitlement to continuing wage-loss compensation as his wages as a
purchasing agent exceeded his salary of his date-of-injury position as a machinist. As appellant
had no loss of wage-earning capacity as of August 24, 2003, he was no longer entitled to wageloss compensation after that date.
By notice dated November 19, 2015, OWCP informed appellant of its preliminary
determination that an overpayment of compensation had been created in his case in the amount
of $36,113.59 for the period August 24, 2003 through November 14, 2015. It made the
preliminary finding that appellant was without fault in creating the overpayment. OWCP
afforded appellant 30 days to submit information regarding his income, assets, and expenses or
3

As the February 12, 2013 letter was an informal modification of benefits, and not a formal loss of wage-earning
capacity determination, it did not include appeal rights.

2

to request a prerecoupment hearing, or request a conference.
recovery questionnaire (Form OWCP-20).

It enclosed an overpayment

In a November 27, 2015 letter, appellant requested a telephonic prerecoupment hearing,
which was held July 11, 2016. During the hearing, he contested the fact of overpayment.
Appellant contended that OWCP improperly modified his wage-earning capacity determination,
noting that he had not been vocationally rehabilitated, but instead had obtained the purchasing
agent job on his own. He noted that he alerted OWCP numerous times that his salary increased
due to the promotion. Appellant provided a copy of his November 2003 and January 2008 letters
to OWCP advising that he had been promoted and was no longer entitled to compensation.
Appellant submitted a completed Form OWCP-20 overpayment recovery questionnaire, a
detailed financial narrative, and supporting documentation. He noted that he lived with his wife
and had no other dependents. Appellant provided bills and receipts showing monthly expenses
of $2,200.00 for mortgage, $800.00 for food, $150.00 for clothing, $644.00 for utilities, and
$696.00 in miscellaneous expenses. Bank statements showed $3,434.00 in a checking account,
$25,119.00 in a savings account, and stocks and bonds valued at $5,000.00. Appellant also
confirmed his ownership of a rental property valued at $168,000.00. He submitted a federal
income tax return showing a monthly household income of $8,675.00.
By decision dated September 21, 2016, an OWCP hearing representative finalized the
preliminary finding of an overpayment in the amount of $36,113.59 for the period August 24,
2003 through November 14, 2015. He found that appellant received wage-loss compensation for
a period in which he had no loss of wage-earning capacity, as his actual earnings exceeded those
of his date-of-injury position. The hearing representative found appellant without fault in
creating the overpayment as OWCP had advised appellant on January 17, 2008 that he was
entitled to continued wage-loss compensation and that there was no overpayment in his case.
Based on the financial documentation provided by appellant, the hearing representative accepted
$4,490.00 in allowable monthly expenses: rent or mortgage $2,200.00; food $800.00; clothing
$150.00, utilities $644.00; miscellaneous expenses $696.00. The documents also established a
monthly household income of $8,675.00. OWCP therefore denied waiver of recovery of the
overpayment as he had an excess of $4,185.00 each month after expenses, significantly more
than the $50.00 allowance under OWCP’s procedures. Additionally, appellant had over
$33,000.00 in checking accounts, savings accounts, and bonds, as well as a rental property
valued at $168,000.00. This exceeded the asset base of $8,000.00 for waiver for an individual
with a spouse and no other dependents. The hearing representative directed appellant to repay
the overpayment by paying $200.00 a month until the debt was collected in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 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
4

5 U.S.C. § 8102(a).

3

States, except in limited circumstances.5 OWCP regulations provide that compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him from earning the wages earned before the work-related injury.6
OWCP procedures provide that an overpayment in compensation is created when a claimant
returns to work with no loss of wage-earning capacity, but continues to receive wage-loss
compensation.7
ANALYSIS -- ISSUE 1
Appellant was a machinist when he was injured. As of August 24, 2003, appellant began
work at the employing establishment as a purchasing agent, earning $795.77 a week, which
exceeded the current pay rate for his date-of-injury machinist position of $716.10 a week. At
that time, appellant had no loss of wage-earning capacity and would no longer be eligible for
wage-loss compensation. OWCP continued to pay $36,113.59 in wage-loss compensation
benefits from August 24, 2003 through November 14, 2015. The $36,113.59 therefore
constitutes an overpayment of compensation.
On appeal appellant asserts that there is no overpayment of compensation in his case as
OWCP had not modified his benefits. However, under OWCP procedures, wage-loss
compensation may be based on actual earnings, as in this case.8 As noted, OWCP regulations
provide that compensation for wage loss due to disability is available only for any periods during
which an employee’s work-related medical condition prevents him from earning the wages
earned before the work-related injury.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.10 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b).
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. Thus, a finding
that appellant was without fault is insufficient, in and of itself, for OWCP to waive the
5

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

6

20 C.F.R. § 10.500(a).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (May 2004).
8

Id. at Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815(3)(c)
(June 2013).
9

See supra note 5.

10

Id. at § 8129(a).

4

overpayment. OWCP must exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations11 provides that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of his or her current income, including compensation benefits, to meet
current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or one
dependent, plus $960.00 for each additional dependent.12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00. In other
words, the amount of monthly funds available for debt repayment is the difference between
current income and adjusted living expenses (i.e., ordinary and necessary living expenses plus
$50.00).13
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.14 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.15 The individual who received
the overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary.16
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether he was entitled to waiver of recovery. Waiver is only possible if
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that he requires substantially all of his income to meet current ordinary and

11

20 C.F.R. § 10.436.

12

Supra note 7 at Chapter 6.200.6.a(1)(b) (June 2009).

13

Id.

14

20 C.F.R. § 10.437(b).

15

See supra note 7 at Chapter 6.200.6.b(3) (October 2004).
September 11, 2014).
16

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

5

C.P., Docket No. 14-975 (issued

necessary living expenses and that his assets do not exceed the established limit as determined by
OWCP’s procedures.17
Appellant submitted a Form OWCP-20 and submitted documents that included bank
statements, utility bills, and a federal tax return. The initial question is whether recovery of the
overpayment would defeat the purpose of FECA. The Board notes that appellant acknowledged
that he had over $33,000.00 in bank accounts and bonds and owned a rental property valued at
$168,000.00. Therefore, the evidence of record indicates that appellant’s assets exceed the
resource base of $8,000.00 for a claimant with a spouse and no other dependents, and recovery
would not defeat the purpose of FECA.
In addition OWCP reviewed the financial evidence submitted and provided a list of
income and expenses. The expenses included housing, food, clothing, utilities, mortgage, and
miscellaneous expenses, totaling $4,490.00 a month. Appellant documented a household income
of $8,675.00. He therefore had excess income of $4,185.00 above his ordinary and necessary
living expenses, far exceeding the $50.00 allowance. The Board therefore finds that OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA.18
Appellant has not shown that he gave up a valuable right or changed his position for the
worse in reliance on compensation payments. The Board finds that the evidence of record does
not establish that recovery of the overpayment would defeat the purpose of FECA, or be against
equity and good conscience. Therefore, OWCP properly denied waiver of recovery of the
overpayment in this case.
On appeal appellant requests waiver of recovery due to financial hardship, emphasizing
that he was without fault. The fact that a claimant is without fault in creating an overpayment
does not preclude OWCP from recovering all or part of the overpayment.19 Also, as set forth
above, appellant provided extensive financial information demonstrating that recovering the
overpayment would not create significant hardship.
With regard to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation under
FECA.20 Appellant is not in receipt of continuing compensation under FECA.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $36,113.59 for the period August 24, 2003 to November 14, 2015. The Board further finds
that OWCP properly denied waiver of recovery of the overpayment.

17

20 C.F.R. § 10.436.

18

Supra note 14.

19

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

20

Judith A. Cariddo, 55 ECAB 348 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2016 is affirmed.
Issued: November 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 17-0636
Issued: May 4, 2018

Case Submitted on the Record

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

JURISDICTION
On January 30, 2017 appellant filed a timely appeal from a December 22, 2016 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 has met her burden of proof to establish that her diagnosed
right knee condition is causally related to factors of her federal employment.
FACTUAL HISTORY
On June 24, 2016 appellant, then a 65-year-old sales, service, and distribution associate,
filed an occupational disease claim (Form CA-2) for a knee condition that she attributed to
performing her work duties. She indicated that her job required her to stand at a window and to
lift packages into a container while turning her body. Appellant noted that she felt throbbing pain
1

5 U.S.C. § 8101 et seq.

in her knees when she walked to retrieve packages and that she experienced muscle spasms when
she pushed mail containers and other objects.2 She indicated that she first became aware of her
claimed condition on November 4, 2015 and first realized on June 23, 2016 that it was caused or
aggravated by factors of her federal employment. Appellant did not stop work.
In a July 6, 2016 development letter, OWCP requested that appellant submit additional
evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how her work activities caused, contributed to, or aggravated her medical
condition. It requested that she provide additional description of her specific work
duties/activities. On July 6, 2016 OWCP also requested additional information from the
employing establishment about appellant’s work tasks, including the frequency and duration that
she performed them. It provided appellant and the employing establishment 30 days to submit a
response. Neither appellant, nor the employing establishment responded to OWCP’s request for
additional evidence/information in the allotted period.
In an August 8, 2016 decision, OWCP denied appellant’s claim, finding that she failed to
establish the medical aspect of the fact of injury requirement. It indicated that she failed to submit
any medical evidence containing a “medical diagnosis in connection with the injury and/or
events.”
On October 3, 2016 appellant requested reconsideration of OWCP’s August 8, 2016
decision. In an accompanying September 26, 2016 statement, she indicated that her work required
her to bend and stoop in order to lift bulky and/or heavy packages weighing up to 70 pounds.
Appellant indicated that she lifted these packages from hampers/containers and placed them into
receptacles for shipping.
Appellant submitted a May 18, 2016 report from Dr. Christopher R. Mann, an attending
Board-certified occupational medicine physician and osteopath. Dr. Mann noted that appellant
reported working for the employing establishment for 30 years as a mail clerk, and the last 8 years
as a window clerk. Appellant reported that she was performing her regular job duties on
November 4, 2015 when she sustained an “insidious onset [sic]” of a catching/grinding sensation
in her right knee, a condition which had progressively worsened over time. Dr. Mann indicated
that appellant advised that the condition developed when she was lifting some heavy mail bundles
and she felt a pop in her right knee. He further noted that appellant’s job required her to repeatedly
lift heavy mail tubs, push and pull heavy cans/containers, and load/unload mail multiple times each
day. In 2013 appellant received treatment for a ﬂare-up of her right knee condition and that, after
treatment which included chiropractic care, she was able to return to work full duty. Dr. Mann
noted, “This right knee injury is an aggravation of a preexisting injury.”
Dr. Mann reported the physical findings of his May 18, 2016 examination, noting that
appellant ambulated into the room with some noticeable limping on the right side. With respect
to appellant’s right knee, he noted that McMurray’s test was positive for medial collateral ligament
tear and that there was positive laxity and tenderness to palpation of the medial collateral ligament.
Appellant’s right knee displayed increased crepitus and mild anterior effusion. Dr. Mann indicated
that there were no positive test results for the left knee and that sensory examination of the lower
2
Appellant indicated that sometimes her knees gave way due to weakness and she could not move. She reported
that her right knee condition was worse than her left knee condition.

2

extremities yielded normal results. He diagnosed osteoarthritis of the right lower leg and medial
collateral ligament sprain of the right knee. Dr. Mann opined that appellant had sustained a workrelated injury to her right knee as a direct result of the activities she performed daily as a “mail
clerk.” He then essentially repeated the factual history as reported to him by appellant. Dr. Mann
opined that appellant’s employment factors of repeatedly engaging in lifting, pushing/pulling, and
loading/unloading while twisting her knees had caused the injuries to her right knee. He indicated
that, after full review of the available records, additional diagnostic testing probably would be
needed and he ordered a magnetic resonance imaging (MRI) scan of the right knee “for further
evaluation.” Dr. Mann noted that appellant would continue working on a full-duty basis.
The findings of a May 24, 2016 MRI scan of appellant’s right knee contained an impression
of severe degenerative arthrosis of the medial compartment with maceration and medial extrusion
of the medial meniscus along with large osteophytes, grade 4 cartilage changes with subchondral
cystic changes (bone on bone appearance) in the medial femoral condyle and medial tibial plateau,
mild osteophytes in the lateral compartment and patellofemoral compartment, and small Baker
cyst without rupture or leakage.
In a December 22, 2016 decision, OWCP denied appellant’s claim for an employmentrelated condition. It modified its August 8, 2016 decision to reflect that appellant established the
medical aspect of the fact of injury requirement by submitting Dr. Mann’s May 18, 2016 report.
However, OWCP found that appellant failed to submit rationalized medical evidence sufficient to
establish causal relationship. It determined that Dr. Mann’s May 18, 2016 report did not contain
adequate medical rationale regarding the matter of causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 To establish fact of injury, an employee must submit
evidence sufficient to establish that he or she experienced a specific event, incident, or exposure
occurring at the time and place, and in the manner alleged.5 An employee must also establish that
such event, incident, or exposure caused an injury.6 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.7

3

Supra note 1.

4

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

5

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

6

Id.

7

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

3

OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.8 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
an employee must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.10 The opinion of the physician must be based on a complete and
accurate 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 the established employment factors.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish causal
relationship.
Appellant claimed that she sustained an occupational disease due to her work duties which
included standing, walking, and engaging in twisting, bending, and stooping while lifting bulky
and/or heavy packages and placing them into receptacles. The Board notes that, while OWCP has
accepted the existence of these work factors, appellant failed to submit rationalized medical
evidence sufficient to establish causal relationship between her work duties and a diagnosed
medical condition.
Appellant submitted a May 18, 2016 report in which Dr. Mann diagnosed osteoarthritis of
her right lower leg and medial collateral ligament sprain of her right knee. Dr. Mann opined that
appellant had sustained a work-related injury to her right knee as a direct result of the activities
she performed daily as a “mail clerk.”12 The Board finds, however, that the submission of this
report does not establish appellant’s claim for an employment-related right knee condition because
Dr. Mann did not provide adequate medical rationale in support of his opinion on causal
relationship. The Board has held that a report is of limited probative value regarding causal

8
20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims,
Chapter 2.800.2b (June 2011).
9
D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 ECAB
345 (1989).
10

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

11

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

12
The Board notes that, at the time appellant filed her occupational disease claim, the official title of her job was
sales, service, and distribution associate. Dr. Mann also indicated that appellant reported that in 2013 she received
treatment for a ﬂare-up of her right knee condition and he noted, “This right knee injury is an aggravation of a
preexisting injury.”

4

relationship if it does not contain medical rationale explaining how an employment activity could
have caused or aggravated a medical condition.13
In support of his opinion on causal relationship, Dr. Mann opined that appellant’s work
duties of repeatedly engaging in lifting, pushing/pulling, and loading/unloading while twisting her
knees had caused the injuries to her right knee. However, he did not describe her work duties in
any detail. For example, Dr. Mann did not detail the frequency and duration that appellant
performed her various work duties over time. He did not describe the medical process through
which her work duties could have caused or aggravated the diagnosed right knee conditions.
Dr. Mann did not explain how objective findings on physical examination and diagnostic testing
supported his opinion on causal relationship. In fact, his opinion on causal relationship appears to
be primarily based on appellant’s reporting of right knee symptoms during a period of
employment. The Board has held that the fact that a condition manifests itself or worsens during a
period of employment14 or that work activities produce symptoms revelatory of an underlying
condition15 does not raise an inference of causal relationship between a claimed condition and
employment factors. Dr. Mann’s May 18, 2016 report is of limited probative value in establishing
appellant’s claim for an employment-related occupational condition for the further reason that it
is not based on a complete factual and medical history.16 For example, he indicated that she
reported that in 2013 she received treatment for a ﬂare-up of her right knee condition, but he did
not provide any clear discussion regarding whether this flare-up had a work-related or nonworkrelated cause. Moreover, Dr. Mann did not adequately consider whether appellant’s reported right
knee symptoms were entirely due to the natural progression of an underlying degenerative
condition.
Appellant also submitted the findings of a May 24, 2016 MRI scan of her right knee which
documented various right knee conditions, including degenerative changes of the medial, lateral,
and patellofemoral compartments of the knee. However, this report would not establish appellant’s
claim for an employment-related right knee condition because it does not contain any opinion on the
cause of the medical condition(s) described therein. The Board has held that medical evidence which
does not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.17
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.

13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

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

15

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

16

See supra note 10.

17

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed right knee condition is causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Knox, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0063
Issued: November 24, 2020

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 October 8, 2019 appellant, through counsel, filed a timely appeal of a July 30, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 26, 2016 appellant, then a 59-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a right torn rotator cuff due to factors of her federal
employment.3 She noted that she first became aware of her condition and realized its relation her
federal employment on December 9, 2015. Appellant explained that she delivered mail from a
right-hand drive vehicle and placed her arm in and out of the window to open and close mailbox
doors for approximately 500 daily deliveries. She stopped work on December 23, 2015.
In a narrative statement dated December 19, 2015, appellant explained that on December 9,
2015 she extended her right arm to place two letters inside a mailbox and felt a stinging sensation
in her upper arm. She noted that she had never experienced an issue with her right shoulder before.
Appellant sought treatment on that date, but was unable to see a physician because the paperwork
provided by her supervisor did not contain sufficient information to bill the visit as a workers’
compensation claim. She further explained that on December 15, 2015 she was examined by a
physician and referred for a magnetic resonance imaging (MRI) scan.
In support of her claim, appellant submitted treatment notes from Dr. Abayev relating a
diagnosis of right rotator cuff syndrome. In a December 16, 2015 treatment note, Dr. Abayev
related that she worked for the employing establishment and he explained that she had been
performing repetitive motions with her right arm for a long time. He indicated that on December 9,
2015, when appellant tried to lift her arm to place mail into a mailbox, she felt sudden pain in her
upper right shoulder. Appellant reported decreased range of motion (ROM) in her right shoulder
and pain radiating to her neck and across her collar bone. She was referred for an MRI scan.
On December 23, 2015 Dr. Abayev held appellant off work from December 23, 2015
through January 3, 2016. In a January 5, 2016 work excuse note, he placed her off work from
January 4 to 11, 2016.

3

The record reflects that appellant previously filed a traumatic injury claim (Form CA1) on December 31, 2015 for
right shoulder pain due to repetitive motion. OWCP assigned OWCP File No. xxxxxx696 and, by decision dated
June 14, 2017, it denied the claim. Appellant timely appealed the decision and (in the November 2, 2018 decision,
the Board found that she had not met her burden of proof to establish right shoulder conditions causally related to the
accepted December 9, 2015 employment incident. The Board explained that reports from the treating physician,
Dr. Nison Abayev, a Board-certified family practitioner, were insufficient to establish that appellant’s diagnosed right
shoulder conditions were causally related to the accepted December 9, 2015 employment incident. Docket No. 171547 (issued November 2, 2018). Further development of the claim resulted in OWCP denying appellant’s request
for reconsideration in a December 14, 2018 decision. Appellant timely appealed to the Board, which found that
OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Docket No. 19-0672 (issued September 11, 2019). The current claim has been consolidated with OWCP File No.
xxxxxx696, with the latter serving as the master file.

2

In a February 10, 2016 report, Dr. Abayev noted that appellant presented for follow up of
right rotator cuff tear and that she brought in paperwork from OWCP which indicated that “the
[physician] has not explained how lifting your arm to mail in or mailbox would have caused your
medical condition.” Dr. Abayev related, “Well, I believe [that] we can give them explanation how
it happened. As per patient’s description, [she] lifts arm with the mail and inserts it in the mailbox.
Constant repetitive motions day in and day out caused sequential injury to the supraspinatus tendon
to the point that small partial ruptures continued to progress to the point of complete rupture. This
caused sudden onset of worsening of the pain with [loss] of [ROM] and caused traumatic pain.”
Dr. Abayev diagnosed right rotator cuff syndrome and tendinitis.
In a February 15, 2016 work excuse, Dr. Kevin Harreld, a Board-certified orthopedic
surgeon, diagnosed right supraspinatus tear and placed appellant off work from February 15 to
March 28, 2016.
In a March 24, 2016 work excuse, Dr. Harreld indicated that appellant would undergo right
shoulder rotator cuff repair that day. He noted that he anticipated that she would continue to be
off work for four months. Dr. Harreld continued to submit progress reports following appellant’s
arthroscopic procedure.
In a development letter dated May 31, 2016, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and attached a questionnaire for her completion. OWCP also requested a narrative medical
report from appellant’s physician, providing a firm diagnosis of a condition and a rationalized
opinion on how appellant’s employment duties caused or aggravated her condition. It afforded
her 30 days to provide the necessary information.
In a separate development letter of even date, OWCP requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of her statements, a
description of the tasks she performed which required physical exertion, and a description of
precautions taken to minimize effects of the employment activities. It afforded the employing
establishment 30 days to submit the requested information.
OWCP subsequently received reports dated May 3 and June 14, 2016 from Dr. Harreld,
which noted appellant’s right rotator cuff repair of the right shoulder. On June 20, 2016 Dr.
Harreld opined that, based upon the history provided, “there appears to be a direct chronological
relation and causal relationship to [appellant’s] overhead work injury on [December 9, 2015] and
her resulting rotator cuff tear.”
In a June 15, 2016 report, Dr. Abayev noted the dates on which he previously treated
appellant. He explained that on December 15, 2015 appellant indicated that, while placing mail
into the mailbox on December 9, 2015, she felt what she described as a “wasp sting” in her right
upper arm; however, he could not treat her without a claim number. She returned on December 23,
2015 with a claim number, and she was diagnosed with rotator cuff tendinitis. Dr. Abayev noted
that she informed him that she had worked for the employing establishment for 19 years, 6 days a
week, carried the same mail route for over 15 years, and had 552 deliveries per day. He explained
that appellant reached mailboxes from the right side of her vehicle and opined that “[r]epetitive

3

motion of delivering mail for the past 15 years is obviously a contributing and aggravating factor
for [appellant’s] medical condition.” Dr. Abayev noted that he ordered an MRI scan to confirm
his diagnosis and the MRI scan revealed a supraspinatus tendon tear, warranting a referral to an
orthopedic surgeon.
Appellant provided a June 16, 2016 response to OWCP’s development questionnaire. She
described her employment duties. Appellant noted that she had “no prior pain in [her] right
shoulder” until December 9, 2015, when she was reaching to put mail in a mailbox and “felt a
sharp pain in [her] right shoulder” She explained that she was told that the incident was a traumatic
injury and an accident report was filed at that time.
In a June 13, 2016 statement, W.F., the employing establishment postmaster, noted that on
December 9, 2015 appellant called to notify him that she felt a sharp pain in her right shoulder
while delivering mail to a curbside box. Appellant completed her route and, upon her return, she
completed a form with the assistance of the safety office. The form “referenced that the cause was
repetitive motion.” W.F. explained that the safety officer advised appellant to file a traumatic
injury claim because she had no prior pain or issues with her shoulder. W.F. noted that the
traumatic claim was denied, and that she was misadvised as to which claim to file because there
was no injury or pain prior to December 9, 2015.
By decision dated August 17, 2016, OWCP denied appellant’s occupational disease claim.
It found that the evidence of record was insufficient to establish that the events occurred as
described. OWCP concluded, therefore, that the requirements had not been met to establish an
injury as defined by FECA.
On September 8, 2016 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. A hearing was held on May 15, 2019. The hearing
representative held the case open for 30 days for the submission of additional evidence. No
additional evidence was received.
By decision dated July 30, 2019, an OWCP hearing representative modified the August 17,
2016 decision to reflect that appellant had established that she performed repetitive motions with
her right shoulder while delivering mail for the past 15 to 20 years. However, the claim remained
denied as the medical evidence of record was insufficient to establish causal relationship between
appellant’s medical condition and the accepted factors of her federal employment.
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,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

4
See L.M., Docket No. 19-1981 (issued May 11, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In his February 10, 2016 report, Dr. Abayev noted appellant’s repetitive work activity
which required that she lift her arm while holding mail and reach to insert the mail into the mailbox.
He explained that “[c]onstant repetitive motions day in and day out caused sequential injury to the
supraspinatus tendon to the point that small partial ruptures continued to progress to the point of
complete rupture.” Dr. Abayev explained that this progression then caused appellant’s sudden
onset of worsening of the pain with loss of ROM. In his June 15, 2016 report, he noted that she
had worked for the employing establishment for 19 years, 6 days a week, carried the same mail
route over 15 years, and had 552 deliveries per day. Dr. Abayev explained that appellant reached
mailboxes from the right side of the vehicle and opined that the repetitive motion of delivering

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
R.G., Docket No. 19-0233 (issued July 16, 2019); see also, Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

5

mail for the past 15 years was the “obvious contributing and aggravating factor for [appellant’s]
medical condition.”
Dr. Abayev’s reports provide a pathophysiological explanation as to how appellant’s
accepted factors of federal employment caused or aggravated her diagnosed right rotator cuff tear.
The Board has long held that it is not necessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.11 Although not fully-rationalized, Dr. Abayev’s reports are sufficient to require
further development of appellant’s claim.12
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to a specialist in the appropriate field of medicine. The chosen physician shall provide a
rationalized opinion as to whether the diagnosed conditions are causally related to the accepted
factors of appellant’s federal employment. If the physician opines that the diagnosed conditions
are not causally related, he or she must explain, with rationale, how or why the opinion differs
from that of Dr. Abayev. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

See S.M., Docket No. 19-1634 (issued August 25, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
12

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
13

Id.; see also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

14
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: November 24, 2020
Washington, DC

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

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

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

7