United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-2045
Issued: April 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 2011 appellant filed a timely appeal from a May 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
benefits as of May 13, 2011 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injuries.
FACTUAL HISTORY
On May 18, 2010 appellant, then a 47-year-old census enumerator, filed a traumatic
injury claim alleging that on May 17, 2010 she sustained injuries to her knees, hands and elbows
1

5 U.S.C. § 8101 et seq.

when she tripped on a raised sidewalk and fell down. She stopped work that day. By letter dated
August 11, 2010, OWCP accepted a left hip sprain, bilateral knee sprain, left shoulder sprain,
right elbow sprain and right wrist sprain. Appellant received disability compensation.
In an August 18, 2010 report, Dr. Michael Swany, a Board-certified orthopedic surgeon,
conducted a follow-up examination of appellant’s right knee, left shoulder, right wrist and elbow.
Appellant stated that her right wrist and elbow pain had resolved. Examination revealed normal
tandem nonantalgic gait and left shoulder mild tenderness over the bicipital groove and greater
tuberosity. Resisted stress test, supraspinatus, infraspinatus and subscapularis revealed 5/5
strength with relatively mild pain. Flexion was tolerated to 90 to 95 degrees with internal
rotation of 5 degrees and external rotation of approximately 45 to 50 degrees. Appellant was
able to perform straight leg raise comfortably. Upon examination of her right knee, Dr. Swany
observed no effusion, erythema or increased warmth. Tenderness to palpation was mildly
present along the medial, lateral and patellofemoral joint regions. Dr. Swany diagnosed
improved left hip osteoarthritis with overuse strain, improved left shoulder strain, resolved right
wrist sprain, resolved right elbow pain with probable healed impacted radial neck fracture and
tricompartmental arthrosis bilateral knees.
In a November 19, 2010 report, Dr. Swany noted appellant’s complaints of continued left
hip pain with a degree of arthritis. He advised that appellant’s left hip sprain, bilateral knee
sprain and right wrist sprain had resolved. Appellant’s left shoulder sprain had nearly
completely resolved and her right elbow sprain had improved. Dr. Swany reported that appellant
had been referred for a functional capacity evaluation.
In a November 30, 2010 functional capacity evaluation report, a physical therapist
provided an accurate history of injury and reviewed appellant’s medical history. It was noted
that x-rays were positive for osteoarthritis in both knees and the left hip. Appellant related that
prolonged sitting, walking, leaning on her left upper extremity, lifting and bending aggravated
her symptoms. The physical therapist concluded that appellant was able to function in the light
physical demand category for eight hours per day. It was noted that she could occasionally lift
up to 17.5 pounds floor to waist, 10 pounds, waist to shoulder, 12.5 pounds floor to shoulder and
carry 10 pounds frequently.
In a March 29, 2011 report, Dr. Swany reviewed appellant’s November 30, 2010
functional capacity evaluation. He noted that appellant was last examined in his office on
September 8, 2010 and observed that her left hip strain, left shoulder strain and bilateral knee
sprains had resolved. Appellant continued to exhibit symptoms of preexisting osteoarthritis and
stiffness in her knees. Based on the functional capacity evaluation and the physical requirements
of the job census, appellant should be able to perform her job as a crew leader and enumerator
with respect to her May 2010 work injury. Dr. Swany concluded that appellant had reached
maximum medical improvement regarding her May 2010 work injury with no residual
permanent partial impairment.
On April 6, 2011 OWCP issued a notice of proposed termination of appellant’s disability
compensation and medical benefits based on Dr. Swany’s medical reports. Appellant was
advised that she had 30 days to submit additional relevant evidence or argument if she disagreed
with the proposed action.

2

In an April 22, 2011 statement, appellant disagreed with the notice of proposed
termination and requested a change of physicians. She stated that, during her last visit with
Dr. Swany, she explained that physical therapy had helped but did not address all her problems.
Appellant wanted to speak to him more about her pain, but he left the room and did not return.
She stated that Dr. Swany did not listen to her or provide sufficient treatment. Appellant
disagreed with his conclusion that her work-related problems had resolved and that her current
symptoms resulted from a preexisting condition. She contended that before her fall at work, she
was able to work 10-hour shifts and walk, sit and stand for long periods of time. Appellant was
unable to perform the duties of her preinjury job. She continued to experience pain in her left
hip and mild pain in her left knee, which was never treated.
By decision dated May 12, 2011, OWCP terminated appellant’s compensation and
medical benefits effective May 13, 2011.
LEGAL PRECEDENT
Under FECA, once OWCP accepts a claim and pays compensation, it has the burden of
justifying termination or modification of an employee’s benefits.2 OWCP may not terminate
compensation without establishing that the disability had ceased or that it was no longer related
to the employment.3 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.4 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.5 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.6
ANALYSIS
OWCP accepted that on May 17, 2010 appellant sustained a left hip, bilateral knee, left
shoulder, right elbow and right wrist sprain. Appellant did not return to work and received
disability compensation. On May 12, 2011 OWCP terminated her compensation based on the
reports of treating physician, Dr. Swany, who determined that her employment-related conditions
had resolved. The Board finds that OWCP properly terminated appellant’s compensation
benefits effective May 13, 2011 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injuries.

2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

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

5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

A.P., supra note 5; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

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OWCP based its decision to terminate on the reports of Dr. Swany. In an August 18,
2010 report, Dr. Swany noted appellant’s complaints regarding right knee, left shoulder, right
wrist and elbow injuries. Appellant informed him that her right wrist and elbow pain had
resolved and that her right knee was feeling much better after physical therapy. Upon
examination, Dr. Swany observed groove and greater tuberosity. Resisted stress test,
supraspinatus, infraspinatus and subscapularis revealed 5/5 strength with relatively mild pain.
Examination of appellant’s right knee revealed no effusion, erythema, or increased warmth and
tenderness to palpation was mildly present along the medial, lateral and patellofemoral joint
regions. In a November 19, 2010 report, Dr. Swany noted appellant’s complaints of continued
left hip pain with a degree of arthritis. He stated that her left hip sprain, bilateral knee sprain,
and right wrist sprain had resolved. Dr. Swany further noted that appellant’s right elbow sprain
had improved and that her left shoulder sprain had nearly resolved. In a March 29, 2011 report,
he noted that her left shoulder sprain had resolved. He also concluded that based on a functional
capacity evaluation appellant had reached maximum medical improvement regarding her
May 2010 work injury with no residual permanent partial impairment. Dr. Swany reported that
appellant was able to return to her date-of-injury position.
The Board finds that Dr. Swany’s reports are sufficiently detailed and well reasoned to
constitute the weight of the medical opinion evidence. Dr. Swany reviewed appellant’s history
and provided findings on examination. He opined that her employment-related injuries had all
resolved and that she no longer suffered residuals from her employment-related injuries. Dr.
Swany concluded that appellant had reached maximum medical improvement and was capable of
returning to her date-of-injury position.
Appellant did not submit any new or additional medical evidence to establish that she had
any continuing disability or residuals due to her accepted employment injury. Thus, the Board
finds that the weight of the medical evidence is represented by the findings and conclusions of
Dr. Swany and that OWCP met its burden of proof to terminate appellant’s compensation and
medical benefits as the evidence establishes that she no longer has residuals of her employmentrelated injuries. While appellant did request authorization for change of physician in her
April 22, 2011 response to the notice of proposed termination of benefits, as the medical
evidence of record did not support the need for continued medical treatment, OWCP properly
terminated appellant’s compensation benefits without authorizing further medical care.
On appeal, appellant disagreed with treating physician Dr. Swany’s March 29, 2011
report alleging that he last examined her six months ago and requested that she continue physical
therapy. As noted above, however, the Board finds that Dr. Swany’s reports were detailed and
well rationalized and entitled to the weight of the medical evidence. Appellant further contended
that the enclosed medical evidence revealed that the functional capacity evaluation was flawed
and should not be considered. The Board’s jurisdiction, however, is limited to evidence that was
before OWCP at the time it issued its final decision.7 The Board may not consider this evidence
for the first time on appeal.8 As appellant did not submit the necessary medical opinion evidence
to establish that she continued to suffer residuals of her employment-related conditions and
7

See 20 C.F.R. § 501.2(c).

8

Sandra D. Puitt, 57 ECAB 126 (2005).

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required continued medical treatment, the Board finds that OWCP properly terminated
appellant’s 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 OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective May 13, 2011.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF DEFENSE, HUNTER
ARMY AIRFIELD COMMISSARY,
Hunter Army Airfield, GA, Employer
__________________________________________

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

Docket No. 19-1734
Issued: November 5, 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 August 15, 2019 appellant filed a timely appeal from a June 7, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $32,975.18, for which she was without fault, because she
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits for the period December 1, 2015 through October 13, 2018, without
an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $400.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On February 28, 2002 appellant then a 52-year-old store worker, filed a traumatic injury
claim (Form CA-1) alleging that she slipped on a soapy floor and fell when cleaning a dairy cooler,
injuring her hip, back, and leg while in the performance of duty. OWCP accepted her claim for
lumbosacral contusion and right hip contusion. Appellant stopped work on February 25, 2002 and
worked intermittently thereafter. OWCP paid her wage-loss compensation on the periodic rolls
effective June 16, 2002.
In a Federal Employees Retirement System (FERS)/SSA dual benefits calculation form
dated February 24, 2015, SSA advised OWCP that no offset of appellant’s compensation benefits
was applicable at this time because she was receiving disability benefits. SSA indicated that,
effective December 2015, she would reach normal retirement age and become eligible for SSA
age-related retirement benefits. It noted that, since appellant’s retirement coverage was under
FERS, her compensation benefits must be offset by any part of her SSA benefit that was calculated
by using her federal employment earnings.
On EN1032 Forms dated December 2015, December 22, 2016, and December 12, 2017,
appellant indicated that she received SSA benefits as part of an annuity for federal service. On an
EN1032 Form dated December 2015, she indicated that she received $1,238.00 per month from
SSA for herself and $385.00 in SSA survivor’s benefits. On an EN1032 Form dated December 22,
2016, appellant indicated that she received regular age-related retirement and survivor’s SSA
benefits $1,606.00 per month from SSA. On an EN1032 Form dated December 12, 2017, she
indicated that she received $1,769.00 per month from SSA.
On September 22, 2018 SSA completed the dual benefits calculation form, which indicated
appellant’s SSA benefit rates with FERS offset and without a FERS offset from December 2015
through December 2017. Beginning December 2015, the SSA rate with FERS was $1,343.50 and
without FERS was $396.70. Beginning December 2016, the SSA rate with FERS was $1,347.50
and without FERS was $397.80. Beginning December 2017, the SSA rate with FERS was
$1,374.40 and without FERS was $405.70.
On October 29, 2018 OWCP prepared a FERS offset calculation worksheet wherein it
noted the calculation of appellant’s SSA offset overpayment from December 1, 2015 through
October 13, 2018. The total overpayment was determined to be $32,975.18.
In a letter dated October 29, 2018, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits was partially
attributable to federal service, her FECA wage-loss compensation had been adjusted.

2

On October 29, 2018 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $32,975.18 had been created. It explained that
the overpayment occurred because a portion of appellant’s SSA benefits that she received from
December 1, 2015 through October 13, 2018 were partially based on credits earned while working
in the Federal Government, and that this portion of her SSA benefit was a prohibited dual benefit.
OWCP further made a preliminary determination that she was with fault in the creation of the
overpayment. It requested that appellant complete the enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally,
OWCP notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
On a November 25, 2018 overpayment action request form, appellant requested a
prerecoupment hearing. In an attached statement, she noted disagreement with the fault finding
and indicated that on September 11 and 25, 2015 she met with SSA and was informed that the
current calculation was correct. Appellant submitted copies of her benefit statements from SSA
dated August 9 and November 30, 2015, and September 21, 2016. She also submitted a copy of
her late husband’s benefit statement from SSA dated November 3, 2014.
On a September 25, 2018 Form OWCP-20, appellant indicated that her total monthly
income included $1,635.00 from SSA and FECA benefits of $1,117.54, resulting in total monthly
income of $2,752.54. She reported expenses totaling $2,700.50. Appellant attached financial
information including bank statements, utility bills, and credit card bills.
Appellant timely requested a prerecoupment hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held on March 26, 2019.
Subsequent to the hearing, OWCP received an April 11, 2019 statement in which appellant
reported her monthly expenses as: $468.79 for mortgage; $320.00 for food; $50.00 for clothing;
$18.75 for haircuts; $110.00 for personal items; $91.00 for water; $178.33 for electricity; $3.50
for “eye insurance”; $8.85 for “vision insurance”; $209.72 for television, internet, and telephone;
$81.14 for car insurance for two automobiles; and monthly credit card payments totaling $253.00
a month. Appellant also listed other expenses of $54.00 for house repairs, $102.08 for lawn
maintenance, $108.33 for gas, $10.83 for auto club membership, and $38.33 for prescriptions, but
did not provide supporting billing statements or receipts. By decision dated June 7, 2019, OWCP’s
hearing representative found that appellant had received an overpayment of compensation in the
amount of $32,975.18 for the period December 1, 2015 through October 13, 2018, because it failed
to offset her compensation payments by the portion of her SSA age-related retirement benefits that
were attributable to her federal service. It further found that she was without fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment because the evidence of
record failed to establish that recovery of an overpayment would defeat the purpose of FECA or
be against equity and good conscience. OWCP required recovery of the overpayment by deducting
$400.00 every 28 days from her continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the

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performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.5 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA age-related
retirement benefits earned as a federal employee is part of the FERS retirement package, and the
receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $32,975.18, for which she was without fault, because she
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period December 1, 2015 through October 13, 2018, without an appropriate offset.
The record supports that appellant received FECA wage-loss compensation for total
disability beginning in July 9, 2002, and that she received SSA age-related retirement benefits
beginning December 2015. As noted, a claimant cannot receive concurrent FECA compensation
for wage-loss and SSA retirement benefits attributable to federal service for the same period.7 The
information provided by SSA established that appellant had received SSA age-related retirement
benefits that were attributable to her federal service commencing December 1, 2015. Thus, the
record establishes that she received an overpayment of FECA wage-loss compensation.8
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s specific SSA age-related retirement benefit
rates. It provided its calculations of the amount that it should have offset for the relevant period
based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $32,975.18, thereby creating an overpayment
of compensation in that amount, for the period December 1, 2015 through October 13, 2018.

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

7

20 C.F.R. § 10.421(d); S.M., Docket No. 17-1802 (issued August 20, 2018); id. ; L.D., Docket No. 19-0606 (issued
November 21, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
8

Id.

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LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.9
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.10 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 $50.00.11 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.12 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.13
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat

9

5 U.S.C. § 8129.

10
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Debt Management, Final Overpayment Determination, Chapter
6.400.4(a)(2) (September 2018).
11
Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
12

See id. at Chapter 6.400.4(a)(2) (September 2018).

13

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

14

20 C.F.R. § 10.437(a)(b).

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the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16
Evidence in the case record shows that appellant has income totaling $2,816.84. She listed
expenses as $468.79 for mortgage; $320.00 for food; $50.00 for clothing; $18.75 for haircuts;
$110.00 for personal items; $91.00 for water; $178.33 for electricity; $3.50 for “eye insurance”;
$8.85 for “vision insurance”; $198.73 for television, Internet and telephone; $81.14 for car
insurance for two automobiles; and monthly credit card payments totaling $253.00 a month. Other
expenses of $54.00 for house repairs, $102.08 for lawn maintenance, $108.33 for gas, $10.83 for
auto club membership, and $38.33 for prescriptions were not supported by billing statements or
receipts and were therefore not counted.
Based upon the information provided on the Form OWCP-20, and evidence received after
the hearing, appellant’s household income totaled $2,816.84 while her expenses totaled $1,732.38.
As her monthly income exceeds her monthly expenses by $1,084.86, appellant does not need
substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment.17 Therefore, OWCP properly denied waiver of
recovery of the overpayment.
Because it has not been established that, recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
15

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

16

5 U.S.C. § 8129.

17

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

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taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation payments.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation payments, OWCP took into account her financial
information as well as factors set forth in 20 C.F.R. § 10.441 and found that this method of
recovery would minimize any resulting hardship, not necessarily eliminate it, while at the same
time liquidating the debt in a reasonably prompt fashion.19 The Board finds that OWCP gave due
regard to the financial information provided and found that her monthly income exceeded monthly
expenses by $1,084.46. OWCP further applied its procedures, which require that an appropriate
payment amount should be deducted in order to recover the overpayment within three years.20
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $32,975.18, for which she was without fault, because she
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period December 1, 2015 through October 13, 2018 without an appropriate offset.
The Board further finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $400.00 every 28 days from her
continuing compensation payments.

18
20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056,
1062 (1988).
19

See L.F., Docket No. 15-0489 (issued May 11, 2015) (the Board affirmed an OWCP hearing representative’s
denial of waiver of recovery of an overpayment because appellant and his spouse had over $17,000.00 in their savings
account and as such his assets exceeded the specified resource base).
20

Supra note 10at Chapter 6.500.8.c (September 2018). These procedures further note that, if no response to the
preliminary overpayment determination is received, OWCP should set the rate of repayment at 25 percent of the
28-day net compensation amount until the balance of the overpayment is paid in full (emphasis added) id. at Chapter
6.500.8.c(1).

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ORDER
IT IS HEREBY ORDERED THAT the June 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 5, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
C.M., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
San Antonio, TX, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-142
Issued: May 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 21, 2006 appellant filed a timely appeal from the November 14, 2005 Office
of Workers’ Compensation Programs’ merit decision finding that she failed to establish that she
sustained an injury as alleged. She also timely appealed the Offices’ October 13, 2006 decision
which denied her request for further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty; and (2) whether the Office properly refused to
reopen her case for further review of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 22, 2005 appellant, then a 58-year-old letter carrier, filed an occupational
disease claim alleging that she was affected by previous impairments of trigger finger, bilateral
shoulder tendinitis and bilateral carpal tunnel with permanent impairments under claim

No. 160237880.1 She alleged that these impairments caused spasms to her neck which were
becoming more severe. Appellant first became aware of the injury and its relation to her work
on September 1, 2005, noting that her prior injury caused her condition. She did not stop work.
The employing establishment controverted the claim and noted that appellant’s limited duties
included, stuffing envelopes, rubber banding small bundles of mail, facing three by five inch
forms and sometimes stuffing them into a desktop runner, hanging empty sacks on sack racks,
assisting customers in processing applications, when needed at the window unit and cutting and
tearing labels from undeliverable magazines. The employing establishment advised that
appellant could switch tasks at her own discretion due to her existing carpal tunnel syndrome.
Appellant alleged that in 1992 she had trigger finger operations and was returned to a
rehabilitation position where she developed carpal tunnel syndrome. She alleged that the
postmaster, David Sanderson, insisted that she be given more assignments which aggravated her
elbow, neck and right side. Appellant alleged that her restrictions prevented her from working
from the “waist up.” She requested placement in a pain management program by her physician.
In letters dated October 11, 2005, the Office requested additional factual and medical
evidence from appellant and the employing establishment.
On October 18, 2005 appellant critiqued an employing establishment job offer and noted
that her physician did not approve the job offer. She alleged that the job offer contained
repetitive duties such as photocopying, keying and tossing mail which was too painful.
Appellant advised that the activities required continuous use of her hands and wrists and
“possible long hours.” She indicated that she was enclosing additional evidence which included
letters dated April 12 and September 20, 2005 and an April 5, 2005 Form CA-17.2 In response
to how her condition developed, appellant alleged that it occurred after she was taken out of the
passport office and placed at the window to work with retail clerks which required her to perform
repetitive tasks. She alleged that she would like a position with limited repetitive assignments.
By letter dated November 2, 2005, the employing establishment explained that appellant
was previously issued a rehabilitation position under claim No. 160237880, with a date of injury
of October 16, 1992. The employing establishment noted that it was in contact with her
physician concerning a recent job offer, as well as union officials. The employing establishment
noted that appellant accepted the job offer and after working for “approximately eight days” she
decided that she did not want the job. The employing establishment noted that she appeared to
be unhappy with her new assignment. The employing establishment asserted that appellant had
filed the present claim to “eliminate her ability to work in the job she agreed to work.”
By decision dated November 14, 2005, the Office denied appellant’s claim finding that
she had not established that the employment exposures occurred as alleged. The Office also
found that appellant failed to submit the necessary medical evidence in support of her claim.
The Office advised appellant that it was unclear why she filed an occupational disease claim
when she did not identify any new work factors or provide medical documentation which was
not already being handled under her previous claim.
1

The record reflects that appellant was working in a rehabilitation position under claim No. 160237880.

2

The additional evidence was not enclosed with the record.

2

On November 22, 2005 the Office received a copy of the response from appellant to its
letter dated October 11, 2005 and a copy of its November 14, 2005 decision.
On September 30, 2006 appellant requested reconsideration.
By decision dated October 30, 2006, the Office denied appellant’s request for
reconsideration as insufficient evidence was submitted to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing 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 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 and/or specific condition
for which compensation is claimed are causally related to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
In the instant case, appellant alleged that her prior injury which included impairments of
the trigger finger, bilateral shoulder tendinitis and bilateral carpal tunnel under claim
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

3

No. 160237880, caused her neck spasms. The Office denied the claim finding that she failed to
identify work factors to support a new claim and because there was no medical evidence
providing a diagnosis which could be connected to work factors described in the case.
Appellant did not present any medical evidence establishing the presence or existence of a
disease or condition for which compensation is claimed. Furthermore, she did not submit a factual
statement identifying any employment factors alleged to have caused or contributed to a presence
or occurrence of a disease or condition as opposed to her prior claim related to the 1992 date of
injury. The record reflects that appellant was given a new job offer at the employing
establishment, which she apparently accepted. She alleged that her physician did not approve the
job offer because it was comprised of repetitive work. However, appellant did not identify
specific employment duties that she actually performed as the cause of her claimed new
occupational disease, neck spasm. Instead, she asserted that prospective duties of a job offered
to her by the employing establishment were outside her physical restrictions.7 However,
appellant did not submit medical evidence to support her assertion. She further noted that her
condition developed after she was “taken out” of the passport office and placed at the window to
work with retail clerks. Appellant did not state when this occurred or identify specific repetitive
duties that were believed to be the cause of her claimed neck condition.
The employing establishment, in its November 2, 2005 letter, explained that appellant
was placed in her rehabilitation position under the previous claim and that the position was made
under the direction of appellant’s physician and union officials. It also advised that appellant
could switch tasks at her own discretion. The employing establishment noted that she accepted
the job offer and worked for approximately eight days.
The Board finds that appellant has not sufficiently identified specific employment factors
alleged to have caused or contributed to the presence of her claimed neck condition.
Furthermore, appellant did not submit any medical reports establishing the presence or existence
of the claimed neck condition. The Board finds that appellant has not met her burden of proof in
establishing a prima facie claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,8 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2), of the implementing federal
regulation which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or

7

The possibility of a future injury does not constitute an injury under the Act. See Virginia Dorsett, 50 ECAB
478, 482 (1999).
8

5 U.S.C. § 8128(a).

4

“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”9
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of her claim for a schedule award and requested
reconsideration on September 30, 2006. However, she did not make any specific argument in
support of her request for reconsideration. Appellant submitted copies of previously submitted
reports, including a copy of the Office’s November 14, 2005 decision. The Board has held that
the submission of evidence or argument which repeats or duplicates that already in the case
record does not constitute a basis for reopening a case.11
Appellant, therefore, did not show that the Office erroneously applied or interpreted a
specific point of law or advance a relevant legal argument not previously considered by the
Office. Further, she failed to submit relevant new and pertinent evidence not previously
considered by the Office. As appellant did not meet any of the necessary regulatory
requirements, she was not entitled to a merit review.12
Appellant is not entitled to a review of the merits of her claim pursuant to any of the three
requirements under section 10.606(b)(2), the Board finds that the Office properly refused to
reopen appellant’s case for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board also finds that the Office properly
refused to reopen appellant’s claim for merit review under 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b).

10

20 C.F.R. § 10.608(b).

11

Edward W. Malaniak, 51 ECAB 279 (2000).

12

See James E. Norris, 52 ECAB 93 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 13, 2006 and November 14, 2005 are affirmed.
Issued: May 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Miami, FL,
Employer
__________________________________________

)
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)
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)
)
)

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

Docket No. 14-1595
Issued: September 16, 2015

Case Submitted on the Record

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

JURISDICTION
On July 16, 2014 appellant filed a timely appeal from a January 27, 2014 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.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
August 15, 2013 causally related to her February 22, 2011 employment injuries.

1

Appellant requested oral argument. By Order dated July 13, 2015, the Board, in its discretion, denied oral
argument as it determined that the issues on appeal could be adequately addressed in a decision based on a review of
the case record.
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she sustained a work-related back injury following her
return to work at the employing establishment. She states that her job did not comply with her
restrictions.
FACTUAL HISTORY
OWCP accepted that on February 22, 2011 appellant, then a 27-year-old mail handler,
sustained a back sprain and displacement of lumbar intervertebral disc without myelopathy at
L5-S1. Appellant was placed on the periodic rolls on August 12, 2011.
In an effort to determine appellant’s work capacity, and after a conflict in medical
evidence had been created, appellant was referred to Dr. Richard J. Simon, a Board-certified
orthopedic surgeon and an impartial medical specialist. In his January 16, 2013 medical report,
Dr. Simon opined that appellant was unable to return to a full-time mail carrier position, but she
could work eight hours a day based on the results of a functional capacity evaluation. Appellant
could occasionally lift up to 40 pounds, lift 30 pounds from floor to waist and waist to shoulder,
carry up to 40 pounds, push 28 pounds of force, and pull 24 pounds of force. She could
frequently sit, stand, walk, reach at desk and floor levels, balance, and perform firm/simple
grasping. Appellant could also occasionally reach at overhead level, stoop, kneel, crouch, stair
climb, crawl, and perform fine/gross hand manipulation.
After a period of vocational rehabilitation on July 19, 2013, appellant returned to work in
a full-time modified-duty mail handler position based on the restrictions set forth by Dr. Simon.3
On December 2, 2013 appellant filed a claim (Form CA-7) for compensation for leave
without pay from August 8 to December 2, 2013. She indicated that she stopped work on
August 8, 2013 and that her last day of pay was August 15, 2013.
In support of her recurrence of disability claim, appellant submitted medical reports
including a report from Dr. Andrew S. Ellowitz, an attending Board-certified orthopedic surgeon.
In an August 28, 2013 narrative report, Dr. Ellowitz provided a history of the February 22, 2011
employment injury. He also provided a history of a July 2013 incident when appellant reinjured
her back as a result of pushing and pulling heavy gates. Following the July 2013 incident,
Dr. Ellowitz noted that appellant immediately experienced low back pain that radiated into her
mid-back and sought urgent care medical treatment. Appellant’s legs were buckling at work and
she was having more pain recently secondary to this event. Dr. Ellowitz noted appellant’s
medical and social background. He listed findings on physical examination and provided an
impression of back pain. In a Florida workers’ compensation form dated August 28, 2013,
Dr. Ellowitz indicated a date of injury as February 21, 2011. He advised that appellant had
work-related low back pain. Dr. Ellowitz stated that she had a preexisting condition that was
exacerbated by her current condition. He concluded that appellant could return to her activities
with restrictions. In an industrial pharmacy management report dated September 24, 2013,

3

In a September 9, 2013 decision, OWCP found that appellant received an overpayment of compensation in the
amount of $1,095.60 because she received total disability compensation from June 30 to July 27, 2013 after she had
returned to full-time light-duty work.

2

Dr. Ellowitz noted that appellant was being treated for a work-related injury/illness. He ordered
medication to treat her condition.
By letter dated December 17, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her recurrence claim. It noted that Dr. Ellowitz’s August 28, 2013
report referred to a new injury and advised her that, if it were related to her employment, she
would need to file a new injury claim. OWCP requested additional medical evidence to establish
that her condition had worsened such that she was no longer able to perform her job duties when
she stopped work on August 8, 2013.
In an August 28, 2013 industrial pharmacy management report, Dr. Ellowitz ordered
medication to treat appellant’s condition. In narrative reports dated September 24 and
October 29, 2013 and January 14, 2014, he noted that appellant had low back problems status
post two work-related accidents. Dr. Ellowitz provided findings on physical and neurological
examination and listed impressions of chronic lumbar herniated disc and back pain. In his
October 29, 2013 report, he advised that appellant was unable to perform her normal job which
required lifting up to 70 pounds. In Florida workers’ compensation forms dated September 24
and October 29, 2013 and January 14, 2014, Dr. Ellowitz again listed the date of injury as
February 21, 2011 and reported that appellant was being treated for a work-related injury/illness.
He advised that there was no change in her capacity to perform functional activities.
Dr. Ellowitz concluded that appellant had reached maximum medical improvement on
January 14, 2014. In a January 14, 2014 prescription, he ordered physical therapy to treat her
chronic low back pain.
In a January 27, 2014 decision, OWCP denied appellant’s recurrence claim, finding that
the medical evidence was insufficient to establish a recurrence of disability commencing
August 15, 2013. It found that she failed to submit the requested medical evidence establishing a
material worsening, supported by clinical findings, rendering her disabled from her modified job
as a result of the accepted employment injuries without intervening factors.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5

4

20 C.F.R. § 10.5(x).

5

Id.

3

When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.6
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.7
ANALYSIS
OWCP accepted appellant’s claim for back sprain and displacement of lumbar
intervertebral disc without myelopathy at L5-S1. On July 17, 2013 appellant returned to fulltime modified-duty work at the employing establishment. She claimed a recurrence of disability
on August 15, 2013 due to her accepted injuries. Appellant does not allege that this disability
was a result of a change in the nature and extent of her limited-duty job requirements. Her
burden therefore is to show a change in the nature and extent of her injury-related condition.
The Board finds that appellant has not submitted sufficient medical opinion evidence to
support her claimed recurrence of disability. Dr. Ellowitz’s narrative reports and Florida
workers’ compensation forms document that appellant sustained a lumbar herniated disc and low
back pain status post two work-related accidents. He provided a history of the February 22, 2011
employment injuries and a July 2013 incident when appellant reinjured her back as a result of
pushing and pulling heavy gates at work. Dr. Ellowitz advised that her preexisting condition was
exacerbated by her employment. He opined that appellant could not perform her normal job
which required lifting up to 70 pounds. The Board finds that Dr. Ellowitz did not establish that
appellant’s back conditions and resultant disability as of August 15, 2013 were due to a
recurrence of the accepted February 22, 2011 employment injuries. Dr. Ellowitz reported a
history of an intervening July 2013 incident due to pushing and pulling heavy gates, rather than
the accepted condition of back sprain and displacement of lumbar intervertebral disc without
myelopathy at L5-S1 which occurred on February 22, 2011. Further, his description of
appellant’s job duties was inaccurate. Dr. Ellowitz reported that she was required to lift 70
pounds in her position, whereas the actual duties of the June 21, 2013 modified-job offer
required that appellant be able to lift up to 40 pounds. It is well established that medical reports
must be based on a complete and accurate factual and medical background and medical opinions
based on an incomplete or inaccurate history are of little probative value.8
6

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
7

James H. Botts, 50 ECAB 265 (1999).

8

Douglas M. McQuaid, 52 ECAB 382 (2001).

4

Dr. Ellowitz also failed to adequately distinguish the effects of the July 2013 intervening
event from the continuing effects of the accepted 2011 condition. This intervening event
contradicts his finding that the current conditions are the result of a spontaneous change in the
Without medical reasoning supported by an adequate factual
accepted conditions.9
understanding of the case, Dr. Ellowitz’s reports and state workers’ compensation forms are
insufficient to meet appellant’s burden of proof.10
Dr. Ellowitz’s remaining reports and prescription notes found that appellant had low back
pain that required treatment with medication and physical therapy. The Board has held that pain
is a symptom, rather than a firm medical diagnosis.11 Moreover, Dr. Ellowitz did not provide
any opinion on whether appellant’s condition and disability for work were causally related to the
accepted employment injuries. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.12 For the stated reasons, the Board finds that Dr. Ellowitz’s reports and
prescriptions are insufficient to establish appellant’s claim.
Appellant failed to submit sufficiently rationalized medical evidence establishing that her
back condition and resultant disability commencing August 15, 2013 resulted from the residuals
of her accepted injuries.13 She has therefore not met her burden of proof.14
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 failed to establish that she sustained a recurrence of
disability commencing August 15, 2013 causally related to her February 22, 2011 employment
injuries.

9

See Robert W. Meesom, 44 ECAB 834 (1993) (where the Board determined that striking a deer in an automobile
accident constituted an independent intervening cause which broke the chain of causation with respect to a
claimant’s prior employment back injury); Anthony S. Wax, 7 ECAB 330 (1954).
10

C.B., Docket No. 08-1583 (issued December 9, 2008).

11

C.F., Docket No. 08-1102 (issued October 10, 2008).

12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M.
Miller, 53 ECAB 697 (2002); Michael E. Smith, 50 ECAB 313 (1999).
13

Cecelia M. Corley, 56 ECAB 662 (2005).

14

Tammy L. Medley, 55 ECAB 182 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, New Orleans, LA, Employer
__________________________________________

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

Docket No. 10-949
Issued: December 1, 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 February 24, 2010 appellant filed a timely appeal from September 16, 2009 and
February 1, 2010 merit decisions of the Office of Workers’ Compensation Programs reducing his
compensation benefits to zero. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to zero based
on its finding that his actual earnings as a limited-duty machinist fairly and reasonably
represented his wage-earning capacity.
FACTUAL HISTORY
On July 23, 2001 appellant, then a 51-year-old machinist, filed a claim alleging that on
July 16, 2001 he sustained an injury to his low back in the performance of duty. The Office
accepted the claim for lumbar strain, an aggravation of lumbar degenerative disc disease, other
acquired deformities of the left ankle and foot and unequal leg length. It authorized a

September 24, 2001 laminectomoy at L4-5 and S1, a decompression at L5-S1 and facet
rhizotomy at L4-5 and L5-S1. The Office placed appellant on the periodic rolls effective
February 9, 2002.
Appellant retuned to work on April 15, 2002.1 On May 8, 2008 he underwent an L5 to
S1 intertransverse posterolateral arthodesis with instrumentation L5 to S1, arthodesis at L5-S1 a
laminectomy at L5 and S1 and laminectomy and discectomy at L5.
On December 10, 2008 Dr. Louis Provenza, an attending Board-certified neurosurgeon,
found that appellant remained disabled from work. On January 20, 2009 Dr. Byron Thomas
Jeffcoat, a Board-certified orthopedic surgeon and Office referral physician, diagnosed a disc
herniation at L5-S1 due to the accepted work injury with continued weakness of the left foot. He
opined that appellant could work full time with restrictions. In an accompanying work
restriction evaluation, Dr. Jeffcoat found that he could lift no more than 35 pounds occasionally
or 25 pounds continuously.
The Office determined that a conflict arose between Dr. Jeffcoat and Dr. Provenza
regarding appellant’s disability and work restrictions. On February 25, 2009 it referred him to
Dr. Gordon P. Nutik, a Board-certified orthopedic surgeon, for an impartial medical
examination.
On March 11, 2009 the employing establishment offered appellant a limited-duty position
with retained pay performing clerical duties for 10 hours a day 4 days a week. The position was
titled a “Set of Light Duties.” The physical requirements did not require lifting over 35 pounds.
Appellant accepted the job on March 12, 2009. He verbally accepted the position and began
working on May 2, 2009.
On March 24, 2009 Dr. Nutik diagnosed status post a large disc herniation at L5-S1 with
left foot drop. He found that appellant could work full time in a light-duty capacity frequently
changing positions between sitting and standing. In an accompanying work restriction
evaluation, Dr. Nutik provided physical restrictions of sitting eight hours a day, walking,
standing and reaching four hours a day, bending, squatting and kneeling one hour a day and
lifting, pushing and pulling up to 20 pounds three hours a day.
On August 20, 2009 the employing establishment offered appellant the position of lightduty machinist with no lifting over 20 pounds. The position required light machinist and clerical
duties for 10 hours a day Monday through Thursday. On August 24, 2009 appellant accepted
“under pressure and coercion….” In an accompanying statement, he expressed concern
regarding whether he could perform physical labor 10 hours a day.
By decision dated September 16, 2009, the Office reduced appellant’s compensation to
zero based on its finding that his actual earnings as a light-duty machinist effective March 2,

1

By decision dated August 14, 2006, the Office found that appellant did not establish a recurrence of disability on
April 17, 2006. On November 2, 2006 the Office reopened his claim for medical care but denied modification of its
finding that he did not establish a recurrence of disability.

2

2009 fairly and reasonably represented his wage-earning capacity.2 On September 26, 2009
appellant requested a review of the written record.
In a May 6, 2009 form letter, received by the Office on October 7, 2009, Dr. Nutik
indicated “yes” on a form sent from the employing establishment that appellant could work 10hour days occasionally pushing, pulling and lifting up to 20 pounds.
By decision dated February 1, 2010, the hearing representative affirmed the
September 16, 2009 decision.
On appeal, appellant challenged the employing establishment’s wording of his
restrictions in its May 6, 2009 letter to Dr. Nutik.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act3 provide that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings if his actual earnings fairly and reasonably represent her wageearning capacity.4 Generally, wages actually earned are the best measure of a wage-earning
capacity and in the absence of showing that they do not fairly and reasonably represent the
injured employee’s wage-earning capacity, must be accepted as such a measure.5 The formula
for determining loss of wage-earning capacity based on actual earnings, developed in the
Albert C. Shadrick decision,6 has been codified at 20 C.F.R. § 10.403. The Office calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings
by the current pay rate for the date-of-injury job.7 Office procedures provide that a
determination regarding whether actual earnings fairly and reasonably represent wage-earning
capacity should be made after an employee has been working in a given position for more than
60 days.8
ANALYSIS
The Office accepted that appellant sustained lumbar strain and an aggravation of lumbar
degenerative disc disease a degeneration of the lumbar intervetebral disc, other acquired
2

By decision dated August 12, 2009, the Office denied appellant’s claim for a schedule award as the evidence did
not demonstrate that he was at maximum medical improvement.
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

5

A.P., 58 ECAB 198 (2006); Lottie M. Williams, 56 ECAB 302 (2005).

6

Albert C. Shadrick, 5 ECAB 376 (1953).

7

20 C.F.R. § 10.403(c).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997).

3

deformities of the left ankle and foot and unequal leg length. Appellant underwent multiple back
surgeries.
On March 12, 2004 appellant accepted a position performing a set of light duties at the
employing establishment lifting 35 pounds or less. The work was generally clerical in nature.
The Office determined that a conflict in medical opinion existed between appellant’s
attending physician, Dr. Provenza, who found that he was disabled from employment and
Dr. Jeffcoat, the second opinion examiner, who determined that he could work full-time with
restrictions. In a report dated March 24, 2009 Dr. Nutik, the impartial medical examiner, found
that appellant could work eight hours a day with restrictions. On August 20, 2009 the employing
establishment offered him a limited-duty machinist job consisting of light machinist and clerical
duties for 10 hours a day four days a week. Appellant accepted the position on August 24, 2009.
By decision dated September 16, 2009, the Office reduced appellant’s compensation to
zero after finding that his actual earnings as a light-duty machinist fairly and reasonably
represented his wage-earning capacity. It determined that his earnings met or exceeded those of
his date-of-injury position and thus he had no loss of wage-earning capacity. The Office further
found that appellant successfully performed the modified machinist position for 60 days.
However, appellant accepted the position on August 24, 2009, less than 60 days before the
Office’s decision. As noted, Office procedures provide that a determination regarding whether
actual earnings fairly and reasonably represent wage-earning capacity should be made after an
employee has been working in a given position for more than 60 days.9 Appellant worked for
the employing establishment beginning March 2, 2009 performing a series of light-duty
assignments but that position had different physical requirements and job duties. He began
working 10 hours a day performing the duties of a modified machinist on August 24, 2009.
Consequently, appellant did not perform the same job for 60 days prior to the Office’ wageearning capacity determination. The Board, therefore, finds that the Office failed to follow its
established procedures as it did not show that appellant performed the position of light-duty
machinist consistently for 60 days.10 Thus, the Office failed to meet its burden of proof.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation to zero
based on its finding that his actual earnings as a limited-duty machinist fairly and reasonably
represented his wage-earning capacity.

9

Id.

10

Amalia Stys (Docket No. 96-521, issued June 9, 1998) (where the Board found that, as the claimant was
terminated after 56 days of employment, she did not have 60 days of actual wages from which the Office could
derive a fair and reasonable representation of her wage-earning capacity).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 1, 2010 and September 16, 2009 are reversed.
Issued: December 1, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, FORT
)
BUCHANAN CHILD & YOUTH SERVICES,
)
Fort Buchanan, PR, Employer
)
___________________________________________ )
M.P., Appellant

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

Docket No. 06-2131
Issued: March 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 21, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 22, 2006 which denied her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On June 14, 2006 appellant, then a 43-year-old recreation specialist, filed a traumatic
injury claim alleging that on May 25, 2006 she experienced anxiety and stress after a counseling
meeting with her supervisor. She did not stop work.

Appellant submitted a report from Dr. Vivian Acevedo, a family practitioner, dated
May 25, 2006. Dr. Acevedo treated appellant for a migraine headache and chest pains and
diagnosed migraine headache. She noted that appellant had a history of migraine headaches and
indicated that her condition could be work related.
By letters dated June 15 and July 7, 2006, the Office asked appellant to submit additional
factual and medical information, including a detailed description of the employment factors or
incidents that she believed contributed to her claimed illness. In letters of the same date, the
Office requested that the employing establishment submit a statement addressing appellant’s
allegations.
Appellant submitted an undated statement alleging that, on May 25, 2006, her supervisor
improperly requested a counseling session with her to discuss her performance and attitude
toward her coworkers. She alleged that her supervisor improperly advised her that she was
excessively absent during the previous camp program and that regular attendance would be
required at the next camp program. Appellant alleged that her supervisor improperly assigned
her duties of an assistant instead of duties coinciding with her position as a director of youth
programs. She submitted a report from Dr. Jennifer E. Nieves Santos, a family practitioner,
dated May 30, 2006. Dr. Santos treated appellant for anxiety and chest pain and diagnosed a
nervous breakdown. In a July 18, 2006 attending physician’s report, Dr. Acevedo noted that
appellant reported working under a lot of stress since May 25, 2006. She diagnosed major
depressive disorder and noted with a checkmark “yes” that appellant’s condition was caused or
aggravated by an employment activity. Dr. Acevedo indicated that appellant was totally
disabled. In a prescription note of the same date, she noted that appellant was evaluated and
remained emotionally affected and could not work.
The employing establishment submitted a memorandum from Irma Julia, chief of child
and youth services, dated August 9, 2006. Ms. Julia noted that appellant served as a recreation
specialist for several years and was responsible for coordinating and planning youth programs.
She indicated that appellant was called in for a counseling session to discuss issues pertaining to
her relations and communications with coworkers. Appellant was informed that due to
unforeseen events the summer camp program would be changed. She indicated that school
facilities, were unavailable and the program would have to be held in the current facilities which
would entail changes to the youth group size, planning and employee scheduling. Ms. Julia
stated that, as a manager, she was responsible for counseling employees on issues that may
interfere with their performance and the mission of the program. She noted that her decision to
counsel appellant was based on the circumstances and the best interest of the program.
In an August 22, 2006 decision, the Office denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical

2

opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out her employment duties, and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.5
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially-assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

3

ANALYSIS
Appellant did not attribute her anxiety or stress to any of her regular duties as a recreation
specialist.
Appellant’s allegations regarding her performance evaluation, absenteeism and work
assignments relate to administrative or personnel actions. In Thomas D. McEuen,9 the Board
held that an employee’s emotional reaction to administrative actions or personnel matters taken
by the employing establishment is not covered under the Act as such matters pertain to
procedures and requirements of the employer and do not bear a direct relation to the work
required of the employee. The Board noted, however, that coverage under the Act would attach
if the factual circumstances surrounding the administrative or personnel action established error
or abuse by the employing establishment superiors in dealing with the claimant. Absent
evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated and not employment generated. In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted
reasonably.10
Appellant alleged that on May 25, 2006, her supervisor improperly requested a
counseling session with her to discuss her performance and attitude toward her coworkers. This
relates to administrative or personnel matters, not to the employee’s regular or specially-assigned
work duties and does not fall within the coverage of the Act.11 Although the handling of
disciplinary actions and evaluations are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.12 As noted, an
administrative or personnel matter will not be considered to be an employment factor unless the
evidence discloses error or abuse on the part of the employing establishment or that it acted
unreasonably. The evidence is insufficient to establish that the employing establishment erred or
acted abusively in this matter. Ms. Julia, chief of child and youth services, submitted a
memorandum dated August 9, 2006 stating that appellant was called in for a counseling session
to discuss issues pertaining to her relations and communications with coworkers. She advised
that as a manager she was responsible for counseling employees on issues that may interfere with
their performance and the mission of the program. Ms. Julia’s decision to counsel appellant was
based on the circumstances and the best interests of the program. Although appellant alleged
stress and anxiety after meeting with her supervisor she has not provided evidence to substantiate
that any actions taken by Ms. Julia were in error, abusive or unreasonable in nature. She has not
established a compensable factor pertaining to the issuance of disciplinary actions and
evaluation.

9

See Thomas D. McEuen, supra note 6; Lillian Cutler, supra note 2.

10

See Richard J. Dube, 42 ECAB 916, 920 (1991).

11

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
12

Id.

4

Appellant alleged that Ms. Julia improperly advised her that she was excessively absent
during the previous camp program and that she was required to regularly attend the next camp
program. The Board notes that the handling of leave requests and attendance matters are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.13 The Board finds that the employing establishment acted reasonably in
this administrative matter. Ms. Julia indicated, as noted above, that as a manager she was
responsible for counseling employees on issues that may interfere with their performance and the
mission of the program and in this instance her decision to counsel appellant was based on the
circumstances and the best interest of the program. Appellant has presented no evidence to
establish error or abuse in the counseling session or the matters discussed. Her complaints focus
primarily on the manner in which her supervisor exercised her supervisory discretion. The
Board has held that mere dislike or disagreement with a supervisory action will not be
compensable absent evidence of error or abuse. Appellant has not established administrative
error or abuse by her supervisor and therefore they are not compensable under the Act.
Appellant also alleged that Ms. Julia improperly assigned her duties of an assistant
instead of duties coinciding with her position as a director of youth programs.14 The Board finds
that appellant has not offered sufficient evidence to establish error or abuse regarding her work
assignments. The evidence does not establish that the employing establishment acted
unreasonably. Ms. Julia indicated that appellant was informed that due to unforeseen events
changes would have to be made to the summer camp program. She indicated that school
facilities were unavailable and the program would have to be held in the current facilities which
would entail changes to the youth group size, planning and employee scheduling. Ms. Julia
indicated that she was acting in the best interest of the program. The Board has also held that
denials by an employing establishment of a request for a different job, promotion or transfer are
not compensable factors of employment under the Act, as they do not involve appellant’s ability
to perform her regular or specially-assigned work duties, but rather constitute appellant’s desire
to work in a different position.15 The employing establishment has either denied appellant’s
allegations or explained the reasons for its actions in these administrative matters. Appellant has
presented no evidence to support that her supervisor acted unreasonably. She has not established
a compensable factor of employment in this regard.16
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

13

See Judy Kahn, 53 ECAB 321 (2002).

14

Donney T. Drennon-Gala, 56 ECAB ___ (Docket No. 04-2190, issued April 26, 2005).

15

Donald W. Bottles, 40 ECAB 349, 353 (1988).

16

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6