United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTON,
Buffalo, NY, Employer
__________________________________________

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Appearances:
Martiin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0897
Issued: July 14, 2015

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 March 17, 2015 appellant filed a timely appeal from a March 3, 2015 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 sustained a recurrence of disability from May 20, 2014
through January 30, 2015 causally related to his accepted January 7, 2009 injury.
FACTUAL HISTORY
Appellant, then a 28-year-old customs and border protection officer, injured his lower back
and right shoulder on January 7, 2009 when he fell while exiting a bus. He filed a claim for
1

5 U.S.C. § 8101 et seq.

benefits, which OWCP accepted for back contusion, right rotator cuff syndrome, and sciatica.
Appellant received compensation for total disability through July 29, 2009, when he returned to
full duty.
On April 12, 2013 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on April 10, 2013 which was causally related to his
January 7, 2009 work injury. He returned to work full duty on April 15, 2013. OWCP accepted
the claim for this period of disability. Appellant again stopped work on November 3, 2013 and
returned to work on light duty on December 20, 2013. OWCP also paid wage-loss benefits for
this period of disability.
On June 10, 2014 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on May 20, 2014 which was causally related to his January 7,
2009 work injury.
In support of this claim of recurrence of disability, OWCP received an April 24, 2014
report from Dr. Bedros Barkirtzian, a specialist in orthopedic surgery. Dr. Barkirtzian stated that
he was treating appellant for lower back and left leg pain. He related that appellant was
considering undergoing surgery to ameliorate his lower back and sciatica conditions, but would
first undergo a computerized axial tomography (CAT) scan and electromyelogram/nerve
conduction velocity study. Dr. Barkirtzian advised that appellant continued to complain of pain
radiating down his left thigh over the posterior lateral aspect of his leg and into the dorsal and
lateral aspect of his left foot. He stated that appellant was currently not working.
On examination Dr. Barkirtzian reported that appellant avoided sitting and that he was
more comfortable in the standing position than in the sitting position. He diagnosed sciatica,
radiculopathy, and noted lower back pain. Dr. Barkirtzian recommended that appellant undergo
a fusion procedure to ameliorate his sciatica condition.
On May 1, 2014 Dr. Craig T. Montgomery, Board-certified in orthopedic surgery,
administered a lumbar CAT scan to appellant. He reported that the results of this test indicated a
mild loss of intervertebral disc space height at L5-S1, posteriorly; a diffuse disc bulge, mild
narrowing of neural foramina on the left inferiorly at L3-4; and a large, diffuse central disc bulge
with hypertrophy of facet joints resulting in moderate-to-severe central canal stenosis at L4-5.
In a May 29, 2014 report, Dr. Barkirtzian reported that appellant’s lower back pain had
worsened. Appellant advised that his legs felt as if they were going to “give out.”
Dr. Barkirtzian related that appellant was treated at urgent care and was taken off work. He
reiterated that he was awaiting results of the diagnostic tests so that he could schedule surgery.
Dr. Barkirtzian advised that appellant was experiencing persistent back pain and bilateral leg
pain, radiating down both of his legs, worse on the left side. He asserted that appellant recently
visited the emergency center because of increasing pain in his lower extremities. Dr. Barkirtzian
reiterated the diagnoses of sciatica and radiculopathy. He recommended that appellant remain
off work and rest as much as possible.
By letter dated June 20, 2014, OWCP advised appellant that it required additional factual
and medical evidence, including a comprehensive medical report, to support his claim that his

2

condition/or disability as of May 20, 2014 was causally related to his previously accepted lower
back and sciatica conditions from the 2009 injury. It requested factual and medical evidence to
substantiate that his disability had resulted from the previous injury without an intervening injury
or new exposure to factors causing the illness; or a withdrawal of a light-duty assignment made
specifically to accommodate his condition due to the work-related injury.
By decision dated July 22, 2014, OWCP denied appellant’s claim for a recurrence of his
accepted lower back and sciatica conditions. It found that he had failed to submit medical
evidence sufficient to establish that the claimed disability as of May 20, 2014 was caused or
aggravated by his accepted conditions.
In a July 23, 2014 report, Dr. Montgomery reiterated the results of his May 1, 2014 CAT
scan and stated that the results of a lumbar magnetic resonance imaging scan showed the
following findings: claudication due to lumbar spinal stenosis; lumbar spondylosis; herniated
nucleus pulposus at L5-S1; and herniated nucleus pulposus at L4-5. He recommended surgery to
ameliorate these conditions.
On August 7, 2014 appellant requested a hearing.
In a report dated September 17, 2014, Dr. John Burnett, Board-certified in family practice
and anesthesiology, stated that appellant had a history of back injury and was scheduled for back
surgery in January 2015 to repair a disc herniation with significant impingement, causing sciatica
down the left leg. He advised that appellant was experiencing significant leg pain radiating
down along the lateral aspect of his left leg, causing numbness in the left aspect of his left foot as
well as weakness with his left great toe and left foot. Dr. Burnett advised that appellant also
suffered from spasms in several muscles, including his calf, thigh, and left ankle. These
symptoms had worsened over the past few months.
In a report dated September 23, 2014, Dr. Burnett reported that he was treating appellant
for lumbar disc disease and disc herniation resulting in significant neuropathic pain and muscle
spasms to his left lower and right lower extremities, which caused him severe and incapacitating
pain and other complications. He advised that his condition had steadily deteriorated, especially
since his most recent exacerbation this past May 2014, which occurred during physical therapy.
Dr. Burnett stated that appellant had undergone multiple trials of different medications as well as
physical therapy and steroid injections, which did not produce definitive or complete relief of his
symptoms. He opined that appellant was totally disabled and had major depression caused by his
chronic, unrelieved pain from the lumbar disc herniation. Dr. Burnett recommended surgery to
ameliorate his lumbar condition.
In a report dated September 30, 2014, an OWCP medical adviser, Dr. Andrew Merola
approved the proposed L4-5 and L5-S1 decompression and fusion procedure surgery. He
indicated that the surgery was being performed to correct lumbar radiculopathy. Dr. Merola did
not address whether appellant sustained a recurrence of disability on May 20, 2014.
On January 30, 2015 Dr. Montgomery performed a lateral lumbar fusion at L4-5.

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By decision dated March 3, 2015, an OWCP hearing representative affirmed the July 22,
2014 decision.2
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of the reliable, probative, and substantial evidence a recurrence of disability. As part of
this burden, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.3
The Board will not require OWCP to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.4
ANALYSIS
In the instant case, the record does not contain any medical opinion showing a change in
the nature and extent of appellant’s injury-related condition resulting in total disability as of
May 20, 2014. Indeed, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates disability as of May 20, 2014 to his accepted lower
back and sciatica conditions. For this reason, he has not discharged his burden of proof to
establish his claim that he sustained a recurrence of disability as a result of his accepted
employment conditions.
Appellant submitted reports from Drs. Barkirtzian, Montgomery and Burnett.
Dr. Barkirtzian did not address the cause of appellant’s condition. He advised that appellant was
considering an L4-5 and L5-S1 decompression and fusion procedure to ameliorate his lower
back and sciatica conditions. In his May 29, 2014 report, Dr. Barkirtzian stated that appellant’s
lower back pain had increased, noting that appellant visited urgent care and was taken off work.
He asserted that appellant was experiencing persistent back pain and bilateral leg pain which
radiated down both of his legs. Dr. Barkirtzian recommended that appellant remain off work and
rest as much as possible.
Dr. Montgomery diagnosed herniated discs at L4-5 and L5-S1 and advised that appellant
was preparing for an L4-5 and L5-S1 decompression and fusion procedure, but did not address
whether appellant sustained a recurrence on May 20, 2014.

2

By decision dated March 18, 2015, OWCP authorized appellant’s surgery and recurrence of disability as of
January 30, 2015.
3

Terry Hedman, 38 ECAB 222 (1986).

4

See W.T., Docket No. 13-1026 (issued September 10, 2013).

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In his September 17 and 23, 2014 reports, Dr. Burnett noted findings on examination and
advised that appellant was scheduled for back surgery in January 2015 to repair a disc herniation
with significant impairment in impingement, which caused sciatica down the left leg. He opined
that appellant’s condition had steadily deteriorated and briefly noted that appellant had sustained
an “exacerbation” of his condition in May 2014. None of the physicians of record have provided
a probative, rationalized medical opinion which addressed or explained whether appellant
sustained a recurrence of disability due to his accepted lower back and sciatica conditions on
May 20, 2014. While OWCP’s medical adviser approved the proposed L4-5 and L5-S1
decompression and fusion laminectomy procedure, and OWCP paid disability compensation as
of January 30, 2015, he made no findings regarding whether appellant sustained a recurrence of
disability as of May 20, 2014.
The reports from Drs. Barkirtzian, Montgomery and Burnett provided a diagnosis of
appellant’s current condition and indicated generally that he complained of disabling pain in
May and June 2014, but did not constitute probative, rationalized medical evidence sufficient to
establish that appellant’s disability as of May 20, 2014 was causally related to his accepted lower
back and sciatica conditions. Thus, the reports from these physicians do not constitute probative,
rationalized evidence demonstrating that a change occurred in the nature and extent of the injuryrelated condition sufficient to warrant total disability.5 Further, appellant did not submit any
evidence indicating that there was a change in the nature and extent of his limited-duty
assignment. Accordingly, OWCP properly denied compensation for a recurrence of appellant’s
work-related lower back and sciatica conditions for the period May 20, 2014 through
January 30, 2015. The Board therefore affirms OWCP hearing representative’s March 3, 2015
decision denying compensation based on a recurrence of his work-related disability as of
May 20, 2014.
CONCLUSION
The Board finds that appellant has not met his burden to establish a recurrence of
disability from May 20, 2014 through January 30, 2015 causally related to his accepted
January 7, 2009 injury.

5

William C. Thomas, 45 ECAB 591 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 14, 2015
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARMENT OF ENERGY, WESTERN
POWER ADMINISTRATION, Montrose, CO,
Employer
__________________________________________

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

Docket No. 20-1261
Issued: June 10, 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 5, 2020 appellant filed a timely appeal from a May 27, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $76,632.68 for which she was without fault
because she concurrently received FECA wage-loss compensation and Social Security
1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted additional evidence following the May 27, 2020 OWCP decision.
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.

Administration (SSA) age-related retirement benefits for the period February 1, 2015 through
March 28, 2020, without an appropriate offset; (2) whether it properly denied waiver of recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $1,315.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On December 11, 2009 appellant, then a 56-year-old energy management and marketing
coordinator, filed a traumatic injury claim (Form CA-1) alleging that on October 5, 2009 she was
assaulted by a fellow employee while in the performance of duty and sustained depression and
post-traumatic stress disorder (PTSD). Appellant’s retirement coverage was noted on the form as
Federal Employees Retirement System (FERS). On April 29, 2010 OWCP accepted the claim for
PTSD and paid appellant compensation on the supplemental rolls, effective February 28, 2010,
and the periodic rolls, effective July 4, 2010.
On February 12, 2020 OWCP forwarded a FERS/SSA dual benefits calculation to SSA to
determine whether an offset of compensation benefits was required.
On March 23, 2020 OWCP received from SSA a March 6, 2020 completed FERS/SSA
dual benefits calculation form, which indicated that appellant had been in receipt of SSA agerelated retirement benefits since February 2015. The form showed SSA benefit rates with and
without a FERS offset. Beginning February 2015, the SSA rate with FERS was $1,984.40 and
without FERS was $773.40, beginning December 2015, the SSA rate with FERS was $1,984.40
and without FERS was $773.40, beginning December 2016, the SSA rate with FERS was
$1,990.30 and without FERS was $775.70, beginning December 2017, the SSA rate with FERS
was $2,030.10 and without FERS was $791.20, beginning December 2018, the SSA rate with
FERS was $2,086.90 and without FERS was $813.30, and beginning December 2019, the SSA
rate with FERS was $2,120.20 and without FERS was $826.30.
In an April 8, 2020 letter, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to her federal service from her 28-day
periodic compensation benefits, effective March 29, 2020. It noted that appellant’s gross SSA
benefit each month was $2,120.20 and without FERS her SSA benefit was $826.30. OWCP
explained that the amount of FERS/SSA dual benefits to be deducted from her FECA benefits was,
therefore, $1,293.90 per month, or $1,194.37 every 28 days.
On April 20, 2020 OWCP completed a FERS offset calculation worksheet, determined the
28-day FERS offset amount for the days in each period, and computed a total overpayment amount
of $76,632.68. The offset calculation worksheet indicated:
from February 1 through
November 30, 2015, appellant received an overpayment in the amount of $12,096.69; from
December 1, 2015 through November 30, 2016, she received an overpayment in the amount of
$14,611.85; from December 1, 2016 through November 30, 2017, she received an overpayment in
the amount of $14,615.24; from December 1, 2017 through November 30, 2018, she received an
overpayment in the amount of $14,907.64; from December 1, 2018 through November 30, 2019,
she received an overpayment in the amount of $15,325.19; and from December 1, 2019 through
March 28, 2020, she received an overpayment in the amount of $5,076.07.
OWCP issued a preliminary overpayment determination on April 20, 2020, finding that an
overpayment of compensation in the amount of $76,632.68 had been created because it had failed
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to reduce appellant’s wage-loss compensation payments for the period February 1, 2015 through
March 28, 2020 to offset her SSA age-related retirement benefits that were attributable to federal
service. It explained that it had reduced her ongoing OWCP benefits for the periodic roll cycle,
effective March 29, 2020. Therefore, OWCP determined that an overpayment occurred for the
period February 1, 2015 through March 28, 2020. It determined that appellant was without fault
in the creation of the overpayment. OWCP requested that appellant submit a completed
overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable repayment
method and advised appellant that she could request a waiver of the overpayment. It further
requested that she provide supporting financial documentation, including copies of income tax
returns, bank account statements, bills, pay slips, and any other records to support income and
expenses. Additionally, OWCP further notified appellant that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing. No response was received.
By decision dated May 27, 2020, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $76,632.68 for the period February 1, 2015 through March 28, 2020 because she concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation benefits without
an appropriate offset. It also found that she was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment. OWCP noted that as of the date of the decision,
no response had been received to the preliminary overpayment determination and appellant had
not requested a waiver. It required recovery of the overpayment by deducting $1,315.00 every 28
days from appellant’s 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
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 that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement 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
benefit 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

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); L.J., 59 ECAB 264 (2007).

6

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

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ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $76,632.68 for which she was without fault because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period February 1, 2015 to March 28, 2020, without an appropriate offset.
The evidence of record indicates that, while appellant was receiving compensation for
wage loss under FECA, she also was receiving SSA age-related retirement benefits based upon
her federal service. A claimant cannot receive both compensation for wage loss under FECA and
SSA age-related retirement benefits attributable to federal service for the same period.7 The
information provided by SSA established that, during the period February 1, 2015 through
March 28, 2020, appellant received SSA age-related retirement benefits that were attributable to
federal service while she also received FECA benefits that were not reduced by an appropriate
offset. Consequently, the fact of overpayment has been established.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods from
February 1, 2015 through March 28, 2020. OWCP provided its calculations for each relevant
period based on the SSA worksheet which showed that appellant received an overpayment of
compensation in the amount of $76,632.68. The Board, thus, finds that appellant received
prohibited dual benefits for the period February 1, 2015 through March 28, 2020, totaling
$76,632.68.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.8
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.9
Recovery of an overpayment will defeat the purpose of FECA if 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

7

20 C.F.R. § 10.421(d); see S.M., supra note 5; L.J., supra note 5.

8

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
9

See Robert Atchison, 41 ECAB 83, 87 (1989).

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not exceed a specified amount as determined by OWCP.10 Additionally 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.11
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.12 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.13
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.14
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not provide a completed Form OWCP-20 and
documentation supporting her income or expenses. Although OWCP advised appellant to submit
Form OWCP-20 and documentation substantiating her income and expenses, she failed to do so,
as required by section 10.438 of OWCP’s regulations.15
OWCP, therefore, did not have the financial information necessary to determine if
appellant needed substantially all of her current income to meet current ordinary and necessary
living expenses and, also, if her assets exceeded a specified amount as determined by OWCP.16
The Board also finds that appellant did not establish that she was entitled to waiver on the basis
that recovery of the overpayment would be against equity and good conscience.
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, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
11

Id. at § 10.437(a)(b).

12

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

13

Id. at § 10.438(b).

14

20 C.F.R. § 10.436.

15

See P.B., Docket No. 20-0862 (issued November 25, 2020); R.W., Docket No. 18-1059 (issued February 6, 2019).

16

Supra note 10.

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LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.17
Section 10.441(a) of OWCP’s regulations18 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 same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$1,315.00 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its April 20, 2020 preliminary
overpayment determination and afforded her the opportunity to provide appropriate financial
information and documentation to OWCP.20 Appellant did not complete Form OWCP-20 and
provide the necessary financial documentation to support her income and expenses prior to the
May 27, 2020 final overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.21 When an individual fails
to provide requested financial information, OWCP shall follow minimum collection guidelines
designed to collect the debt promptly and in full.22 The Federal (FECA) Procedure Manual
provides that, in these instances, OWCP should set the rate of repayment at 25 percent of the 28day net compensation amount until the balance of the overpayment is paid in full.23 The Board,
therefore, finds that OWCP properly required recovery of the overpayment from appellant’s
continuing compensation payments at the rate of $1,315.00 every 28 days.

17

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18

Id. at § 10.441(a).

19

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

20

20 C.F.R. § 10.438.

21

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

22

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, supra note 10 at Chapter 6.400.3 (September 2018).
23

Supra note 10 at Chapter 6.500.8(c)(1) (September 2018).

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $76,632.68 for which she was without fault because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period February 1, 2015 through March 28, 2020, without an appropriate offset. The Board
also finds that OWCP properly denied waiver of recovery of the overpayment and properly
required recovery of the overpayment by deducting $1,315.00 from appellant’s continuing
compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 10, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERAL REVENUE SERVICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 21-0667
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On March 15, 2021 appellant filed a timely appeal from an October 1, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty on May 20, 2020, as alleged.
FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the October 1, 2020 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

On June 1, 2020 appellant, then a 55-year-old internal revenue agent, filed a traumatic
injury claim (Form CA-1) alleging that on May 20, 2020 she fractured her left upper extremity
while in the performance of duty. She further explained that, while working from home, she
tripped and fell while trying to kick a toy to her cat. On the reverse side of the claim form B.D.,
an employing establishment supervisor, indicated that appellant was in telework status and that the
incident occurred during scheduled work hours, but controverted the claim, contending that
appellant was not in the performance of duty. Appellant stopped work on the date of injury and
returned to work with restrictions on June 8, 2020.
In a June 3, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
afforded her 30 days to submit the necessary evidence.
In a statement dated June 8, 2020, appellant indicated that at the time of her injury, she was
walking to her home office when she noticed a cat toy in her path. While trying to kick it toward
her cat, her right foot skidded on the floor and she fell, landing on her left arm and face. Appellant
indicated that she believed she was in the performance of duty at the time of the injury, because
she was ordered to work from home until further notice due to the closing of federal buildings due
to COVID-19.
In a report dated May 21, 2020, Dr. Russell M. LaFrance, a Board-certified orthopedic
surgeon, diagnosed appellant with a left proximal humerus fracture including the greater tuberosity
with endosteal scalloping in the humeral head. He noted a history that she fell while kicking a cat
toy across her wood floor.
By decision dated July 8, 2020, OWCP denied appellant’s claim, finding that she had not
established that her injury was sustained in the performance of duty. It found that she was injured
while working from home and engaged in an act for personal comfort and convenience. OWCP
further noted that the personal comfort doctrine did not apply to employees working at home and
that only activities directly related to official duties were covered. It further found that the activity
appellant was engaged in at the time of her injury was not directed to the actual performance of
the duties of her federal employment. Consequently, OWCP concluded that the requirements had
not been met to establish an injury or medical condition as defined by FECA.
On August 6, 2020 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. In support of her request, she submitted a second
statement reiterating that she believed she was in the performance of duty when she was injured,
because she was instructed to work from home effective March 23, 2020. Appellant also explained
that, due to the sensitive nature of her work materials involving taxpayer information, she utilized
a confined space in her home as an office, and when she finishes her coffee in the morning, she
takes the cup downstairs to her kitchen so that it does not take up necessary office space. She
related that on May 20, 2020 she was returning to her home office from the kitchen and tried to
kick a toy to her cat, missed, and went flying onto the ground in front of her stairs.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed OWCP’s
denial of the claim.

2

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, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 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
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”6 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”7 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be stated to be engaged in the master’s business, at a place where the employee may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his employment or engaged in doing something incide ntal
thereto.8 This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requireme nt being that the
employment caused the injury. 9
Its procedures provide that ordinarily, the protections of FECA 10 do not extend to the
employee’s home, but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to ascertain whether at
the time of injury the employee was in fact doing something for the benefit of the employer.11
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

5 U.S.C. § 8102(a).

7

See D.L., Docket No. 19-0276 (issued April 20, 2020); M.T., Docket No. 17-1695 (issued May 15, 2018); S.F.,
Docket No. 09-2172 (issued August 23, 2010); Charles Crawford, 40 ECAB 474, 476-77 (1989).
8

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

9

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Supra note 1.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also M.T., Docket No. 16-0927 (issued February 13, 2017); S.F., Docket No. 09-2172 (issued August 23, 2010).

3

In determining whether an injury occurs in a place where the employee may reasona bly be
or constitutes a deviation from the course of employment, the Board will focus on the nature of
the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment. 12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on May 20, 2020, as alleged.
As noted above, for employees performing official duties at home, OWCP has provided
that employees must be directly engaged in the performance of their duties to be covered under
FECA.13 Appellant alleged that she was injured when she kicked a toy to her cat. Her actions
constitute a deviation from the course of employment. At the time of the slip and fall, appellant
was not engaged in an activity essential to her employment or reasonably incidental to the duties
that she was hired to perform. 14 The Board thus finds that the injury she sustained did not occur
in the performance of her federal employment duties.
For these reasons, the Board finds that appellant has not met her burden of proof to establish
an injury in the performance of duty on May 20, 2020, as alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury, in the
performance of duty on May 20, 2020, as alleged.

12

See A.S., Docket No. 17-1880 (issued December 12, 2018); T.C., Docket No. 16-1070 (January 24, 2017).

13

Supra note 1

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 20-0937
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 March 25, 2020 appellant filed a timely appeal from a January 23, 2020 merit decision
and a March 12, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish bilateral knee
conditions causally related to the accepted factors of his federal employment; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 26, 2019 appellant, then a 62-year-old retired cargo scheduler, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral knee conditions due
to factors of his federal employment, including frequent stair usage and constant jumping on and
off cargo storage grids. He indicated that he first became aware of his condition on June 2, 2014,
and first realized its relationship to his federal employment on June 4, 2018.2
In a development letter dated November 18, 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. It afforded both parties 30 days to submit the necessary evidence.
In a letter dated December 5, 2019, appellant noted that he had worked for the employing
establishment for 28 years. He indicated that he sustained serious damage to both of his knees as
a result of frequently using stairs multiple times a day at work. Appellant also stated that he had
to jump on and off 3-to-4-foot-high cargo storage platforms approximately 50 to 60 times per day.
He noted that he experienced more than normal knee pain in 2014 and first realized that it was
related to his federal employment in 2018. Appellant indicated that he had a total replacement of
his left knee and was scheduled for a total replacement of his right knee. He stated that he did not
engage in any outside activities that could have resulted in damage to his knees. Appellant listed
his medical treatment history from June 2, 2014 through October 10, 2019.
On January 7, 2020 the employing establishment responded to OWCP’s development
questionnaire. It confirmed that appellant had retired on November 25, 2016, and indicated that
his employee personnel folder was destroyed. The employing establishment attached a position
description with its response.
OWCP subsequently received a February 5, 2018 note from Dr. Mark Bernstein, a Boardcertified orthopedic surgeon, who examined appellant and diagnosed left knee osteoarthritis.
Dr. Bernstein indicated that appellant would need left knee total replacement in the future.
An x-ray report on appellant’s left knee, dated October 10, 2018, revealed no acute
abnormalities.
In an October 10, 2018 note, Dr. Steven Schule, a Board-certified orthopedic surgeon,
noted that appellant presented with left anteromedial knee pain. He examined appellant and
reviewed x-rays of his left knee. Dr. Schule diagnosed left knee osteoarthritis and discussed that
although appellant was not interested at this time, there was the possibility for the need of a left
total knee arthroplasty in the future.

2

Appellant retired from the employing establishment on November 25, 2016.

2

Appellant submitted hospital records, orders, and results, dated October 10 and
December 17, 2018.
On December 17, 2018 Dr. Schule performed a left total knee arthroplasty and described
the technique and results in an operative note. He listed a postoperative diagnosis of left knee
osteoarthritis.
An x-ray report on appellant’s left knee, dated December 17, 2018, revealed no
abnormalities and noted expected postoperative findings.
Appellant submitted physical therapy treatment notes, dated December 17, 2018 and
January 4, 2019.
On January 15 and March 19, 2019 Dr. Schule noted that he examined appellant and
advised that he was recovering from his left total knee arthroplasty and had no restrictions.
In a note dated July 16, 2019, Dr. Deborah Valtierra, a Board-certified specialist in internal
medicine, noted that appellant was experiencing right knee pain. She indicated that he had constant
pain in the right, medial knee that worsened at night.
On July 25, 2019 Andrew Bloom, a physician assistant, administered a cortisone injection
to appellant’s right knee joint. On August 21, 2019 he administered a viscosupplement injection
to appellant’s right knee joint.
A magnetic resonance imaging (MRI) scan report on appellant’s right knee, dated
October 1, 2019, revealed severe medial compartment osteoarthritis with degenerative meniscal
tearing and scattered high-grade patellofemoral chondral wear and fissuring.
In an October 10, 2019 note, Mr. Bloom examined appellant and diagnosed right knee
osteoarthritis.
In a note dated November 20, 2019, Dr. Schule examined appellant and also diagnosed
right knee osteoarthritis. He discussed the possibility of right total knee arthroplasty.
In a January 19, 2020 note, Dr. Brian Knapp, a specialist in occupational medicine, noted
that appellant worked as a cargo scheduler for 28 years, frequently climbing stairs and jumping to
platforms, three to four feet high. He reviewed appellant’s medical record and scheduled a right
total knee replacement for January 24, 2020.
By decision dated January 23, 2020, OWCP denied appellant’s occupational disease claim,
finding that that the medical evidence of record was insufficient to establish causal relationship
between his diagnosed bilateral knee conditions and the accepted factors of his federal
employment.
On February 28, 2020 appellant requested reconsideration. In an accompanying statement,
he noted that Dr. Knapp concurred that his injuries were a direct result of his federal employment.
Appellant attached a copy of appellant’s December 5, 2019 letter, along with his request.

3

By decision dated March 12, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish bilateral knee
conditions causally related to the accepted factors of his federal employment.

3

Supra note 1.

4

R.M., Docket No. 20-0342 (issued July 30, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6
20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

See B.H., Docket No. 18-1693 (issued July 20, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
8

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

4

In support of his claim, appellant submitted progress notes from multiple physicians. On
February 5, 2018 Dr. Bernstein examined appellant and diagnosed left knee osteoarthritis. On
October 10, 2018 Dr. Schule diagnosed left knee osteoarthritis. On December 17, 2018 he
performed a left total knee arthroplasty and noted a postoperative diagnosis of left knee
osteoarthritis. Subsequently on November 20, 2019 Dr. Schule examined appellant and diagnosed
right knee osteoarthritis. While the physicians provided firm medical diagnoses, they did not offer
a specific opinion as to whether the accepted employment factors caused or aggravated appellant’s
diagnosed bilateral knee conditions. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.10 As such, these notes are insufficient to meet appellant’s burden of proof.
Appellant also submitted hospital records, orders, and results, dated October 10 and
December 17, 2018, which did not include a medical diagnosis. He further submitted progress
notes without a firm medical diagnosis. On January 15, 2019 Dr. Schule examined appellant and
noted that he was improving following his left total knee arthroplasty. On March 19, 2019 he
examined appellant and indicated that he had no restrictions. On July 16, 2019 Dr. Valtierra noted
that appellant experienced constant pain in the right, medial knee that worsened at night. On
January 19, 2020 Dr. Knapp noted that appellant worked as a cargo scheduler for 28 years and
reviewed his medical record. These physicians did not provide a medical diagnosis or offer an
opinion on causal relationship. The Board has held that medical notes which do not provide a firm
diagnosis or fail to render an opinion on causal relationship are of no probative value and are
insufficient to establish the claim.11 These hospital records and physicians’ notes are therefore
insufficient to establish appellant’s claim.
Appellant also submitted physical therapy treatment notes, dated December 17, 2018 and
January 4, 2019. He also submitted progress notes from Andrew Bloom, a physician assistant,
dated July 25, August 21, and October 10, 2019. Certain healthcare providers such as physical
therapists and physician assistants are not considered “physician[s]” as defined under FECA.12
Consequently, these notes will not suffice for purposes of establishing appellant’s claim.13
The record contains x-ray reports of appellant’s left knee, dated October 10 and
December 17, 2018, and an MRI scan report of his right knee, dated October 1, 2019. The Board
has held that diagnostic studies standing alone lack probative value on the issue of causal

10

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

11

Id.; see also A.K., Docket No. 20-0003 (issued June 2, 2020).

12

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also C.K., Docket No. 19-1549 (issued June 30, 2020) (physical
therapists and physician assistants are not considered physicians under FECA).
13

Id.

5

relationship as they do not provide an opinion as to whether the accepted employment factors
caused any of the diagnosed conditions.14
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed bilateral knee conditions and the
accepted factors of his federal employment, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
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.15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.18 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.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely request for reconsideration, appellant submitted a statement asserting that
Dr. Knapp concurred that his injuries were a direct result of his federal employment. His narrative
14

C.B., Docket No. 20-0464 (issued July 21, 2020).

15

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

16
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).
17

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

18

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

19

Id. at § 10.608(b); see J.V., supra note 16; E.R., Docket No. 09-1655 (issued March 18, 2010).

6

statement did not attempt to show that OWCP erroneously applied or interpreted a specific point
of law or advance a relevant legal argument not previously considered by OWCP. Additionally,
appellant’s statement is not medical evidence, and he did not submit any medical evidence along
with his request for reconsideration. The Board therefore finds that appellant failed to show that
OWCP erroneously applied or interpreted a specific point of law, advanced a relevant legal
argument not previously considered by OWCP, or submitted relevant and pertinent new evidence
not previously considered by OWCP.20
On appeal appellant asserts that he submitted new medical evidence that was never
reviewed by OWCP. However, the Board finds that appellant did not submit any medical evidence
with his request for reconsideration. The Board, therefore, finds that appellant has not met any of
the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish bilateral knee
conditions causally related to the accepted factors of his federal employment. The Board further
finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

20

Supra note 16.

21

D.M., Docket No. 18-1003 (July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the request for reconsideration without reopening the case for a review on the merits).

7

ORDER
IT IS HEREBY ORDERED THAT the March 12 and January 23, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
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

8


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

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

Docket No. 18-1788
Issued: March 26, 2019

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 September 24, 2018 appellant, through counsel, filed a timely appeal from a March 30,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that appellant, through counsel, specifically appealed OWCP’s March 30, 2018 merit decision.
Although OWCP’s May 4, 2018 merit decision which terminated appellant’s compensation benefits, effective May 5,
2018, and June 19, 2018 merit decision which granted him a schedule award for an additional 4 percent permanent
impairment of the left lower extremity, totaling 13 percent permanent impairment, are within the Board’s jurisdiction,
appellant has not appealed those decisions. Therefore, the Board will not address those decisions in this appeal. See
20 C.F.R. § 501.3(a)(c).

Federal Employees’ Compensation Act3 (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 his burden of proof to establish a recurrence of total
disability commencing April 25, 2016, causally related to his accepted September 29, 2011
employment injury.
FACTUAL HISTORY
On September 29, 2011 appellant, then a 51-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that day he experienced left knee pain while descending
stairs at a customer’s residence. He stopped work on September 30, 2011. On March 1, 2012
Dr. Mark A. Schottenfeld, a Board-certified orthopedic surgeon, performed an arthroscopic left
medial meniscectomy and evacuation of loose bodies and diagnosed complex tear left medial
meniscus, multiple loose bodies. By decision dated February 6, 2013, OWCP accepted appellant’s
claim for aggravation of a tear of the medial meniscus of the left knee.
On February 7, 2013 the employing establishment informed OWCP that appellant had
returned to full-time, full-duty work on March 26, 2012.
On May 2, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging that he
sustained a recurrence of total disability on April 25, 2016 due to his accepted September 29, 2011
employment injury. He stopped work on April 26, 2016. Appellant alleged that he felt pain in his
left knee towards the end of the day on April 25, 2016 and his pain progressively worsened after
he returned home. He believed that wear and tear from his job four years after his surgery led to
his current condition.
Appellant submitted a November 9, 2015 left knee magnetic resonance imaging (MRI)
scan report from Dr. Alan J. Heideman, a Board-certified diagnostic radiologist. Dr. Heideman
provided an impression of horizontal tear of the medial meniscus, vertical tear of the anterior horn
and lateral meniscus, and grade 4 chondromalacia patella, most severe along the medial facet.
By development letter dated July 1, 2016, OWCP informed appellant that the evidence
submitted was insufficient to establish his recurrence claim. It included a questionnaire for his
completion and asked that he provide a comprehensive medical evaluation. OWCP afforded
appellant 30 days to respond. He did not respond.
OWCP, by decision dated August 5, 2016, denied appellant’s claim for a recurrence of
disability commencing April 25, 2016. It found that he had not submitted rationalized medical
evidence establishing a recurrence of disability due to a material change or spontaneous worsening
of his accepted work-related condition. OWCP noted that appellant had not responded to its July 1,
2016 development letter.

3

5 U.S.C. § 8101 et seq.

2

On August 16, 2016 OWCP received appellant’s completed development questionnaire.
He related that while delivering his route on April 25, 2016 he experienced pain in his left knee
which was not unusual. Appellant indicated that by nighttime he could not work due to his pain.
He described the work duties he performed on April 25, 2016. Appellant believed that his
disability was due to his original injury/illness because his pain was in the same areas. He related
that no traumatic injury caused his condition except normal wear and tear since his 2012 surgery.
Appellant reported that he had not participated in any hobbies or activities since his original
injury/illness that may have affected his accepted work-related condition.
Appellant also submitted a letter dated September 17, 2015 from Dr. Donald E. Heitman,
an orthopedic surgeon. Dr. Heitman opined that the accepted September 29, 2011 employment
injury contributed to appellant’s current medial compartment arthritis, compounded upon mild-tomoderate patellofemoral arthritis, and repeated partial medial meniscectomies to the medial aspect
of the left knee.
On September 8, 2016 appellant, through counsel, requested a review of the written record
by an OWCP hearing representative regarding the August 5, 2016 recurrence decision.
By decision dated January 10, 2017, an OWCP hearing representative affirmed the
August 5, 2016 recurrence decision, finding that the medical evidence of record did not contain a
rationalized opinion relating appellant’s current disability commencing April 25, 2016 to his
September 29, 2011 employment injury.
OWCP subsequently received reports dated January 17 and March 8, 2017 from
Dr. Matthew J. Garfinkel, an attending Board-certified orthopedic surgeon. Dr. Garfinkel noted a
history of the accepted September 29, 2011 employment injury and appellant’s subsequent medical
treatment. He discussed findings on physical and diagnostic test results. Dr. Garfinkel provided
an impression of pain, other tear of the lateral and medial meniscus, internal derangement and mild
degenerative joint disease of the left knee. He maintained that these left knee conditions were
directly related to the September 29, 2011 work injury. Dr. Garfinkel listed appellant’s physical
restrictions and indicated that he could only perform desk work. In an operative report dated
April 17, 2017, he indicated that he performed left knee arthroscopy with partial medial and partial
lateral meniscectomies, chondroplasty medial femoral condyle, partial medial and partial lateral
synovectomies, and removal of one-centimeter-sized chondral loose body.4 On May 18, 2017
Dr. Garfinkel ordered physical therapy three times a week, for four weeks and reiterated his
diagnosis of left knee internal derangement. In a work note dated May 23, 2017, he indicated that
appellant could perform modified duties, effective June 20, 2017.
Daily notes dated May 18 to June 9, 2017 from appellant’s physical therapists were
received.
In additional reports dated April 25, May 23, and June 20, 2017, Dr. Garfinkel restated his
left knee impressions of pain, other tear of the lateral and medial meniscus, internal derangement,
4
On March 23, 2017 OWCP authorized appellant’s April 17, 2017 left knee arthroscopic surgery. Appellant retired
from the employing establishment, effective June 30, 2017. By decision dated September 20, 2017, OWCP accepted
that he sustained a recurrence of disability, effective April 17, 2017, causally related to his accepted September 29,
2011 employment injury.

3

and mild degenerative joint disease. He also provided an impression of chondromalacia patellae,
chondromalacia, and loose body of the left knee and other synovitis and tenosynovitis, left lower
leg. Dr. Garfinkel opined that these left knee conditions were directly related to the September 29,
2011 work injury. In a work note dated June 20, 2017, he indicated that appellant could perform
modified duties, effective July 18, 2017. In a later work note dated August 15, 2017, Dr. Garfinkel
indicated that appellant could return to full-duty work as of that date. In a February 4, 2017 left
knee MRI scan report, he provided an impression of chronic partial acromioclavicular tear and
laxity without change and slightly increased attenuation and medial bowing of the medial collateral
ligament.
An additional note dated June 13, 2017 was received from appellant’s physical therapist.
On January 10 and 12, 2018 appellant, through counsel, requested reconsideration of
OWCP’s hearing representative’s January 10, 2017 recurrence decision.
An additional report dated August 15, 2017 was received from Dr. Garfinkel who reiterated
his left knee and left lower leg impressions and opinion on causal relationship.
By decision dated March 30, 2018, OWCP denied modification of the January 10, 2017
recurrence decision, finding that the evidence of record did not provide a rationalized medical
opinion sufficient to establish that appellant’s claimed recurrence of total disability as of April 25,
2016 causally related to his accepted September 29, 2011 employment injury.
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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable, and probative
5

Id.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); Kenneth R.
Love, 50 ECAB 193, 199 (1998).

4

evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing April 25, 2016, causally related to his accepted September 29, 2011
employment injury.
OWCP accepted appellant’s original claim for aggravation of left knee medial meniscus
tear. Appellant underwent an arthroscopic left medial meniscectomy and evacuation of loose
bodies on March 1, 2012. He returned to full-time, full-duty work on March 26, 2012. Appellant
stopped work on April 26, 2016 and claimed a recurrence of total disability commencing April 25,
2016 due to the accepted September 29, 2011 employment injury.
Appellant submitted a series of reports from his physician, Dr. Garfinkel. In reports dated
January 17 to August 15, 2017, Dr. Garfinkel noted a history of the September 29, 2011 work
injury and diagnosed several left knee conditions, including pain, other tear of the lateral and
medial meniscus, internal derangement, mild degenerative joint disease, chondromalacia patellae,
chondromalacia, and loose body. He also diagnosed other synovitis and tenosynovitis of the left
lower leg. Dr. Garfinkel opined that the diagnosed conditions were directly related to the
September 29, 2011 employment injury. He initially found that appellant could perform sedentary
modified duties and subsequently determined that appellant could perform full-duty work as of
August 15, 2017. The Board finds that, while Dr. Garfinkel’s opinion is generally supportive of
causal relationship, he did not provide adequate medical rationale explaining the basis of his
opinion. Dr. Garfinkel failed to offer a rationalized medical explanation as to how the accepted
September 29, 2011 employment injury caused appellant’s recurrence of disability. The Board
has held that a report is of limited probative value regarding causal relationship if it does not
contain medical rationale explaining how the claimed medical condition/disability was causally
related to an employment incident.9 Therefore, the Board finds that Dr. Garfinkel’s reports are
insufficient to establish appellant’s recurrence claim.10
Dr. Heitman’s September 17, 2015 report and Dr. Heideman’s November 9, 2015
diagnostic test report lack probative value as they predate the time of the claimed April 25, 2016

7

See C.C., Docket No. 18-0719 (issued November 9, 2018); see also Ronald A. Eldridge, 53 ECAB 218 (2001).

8

Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

9

E.W., Docket No. 17-1988 (issued January 29, 2019).

10

K.G., Docket No. 15-0669 (issued April 8, 2016).

5

recurrence and do not address the relevant time period.11 Thus their reports are insufficient to
establish the claimed recurrent disability.
The notes dated May 18 to June 13, 2017 from appellant’s physical therapists are of no
probative value. Physical therapists are not considered physicians as defined under FECA and are
not competent to render a medical opinion.12
As appellant has not submitted medical evidence sufficient to establish a recurrence of
disability commencing April 25, 2016 causally related to his September 29, 2011 work injury, the
Board finds that he has not met his burden of proof.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing April 25, 2016, causally related to his accepted September 29, 2011
employment injury.

11

C.S., Docket No. 17-1345 (issued May 24, 2018).

12

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). L.L., Docket No. 17-0908 (issued
September 11, 2017).
13

J.D., Docket No. 18-0616 (issued January 11, 2019); Alfredo Rodriguez, 47 ECAB 437 (1996).

6

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Antonio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1202
Issued: August 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2015 appellant, through his represenative, filed a timely appeal from an
April 16, 2015 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 exercised its discretion in denying appellant’s
request to change his treating physician.
FACTUAL HISTORY
On December 19, 2002 appellant, then a 68-year-old teacher, filed a traumatic injury
claim alleging that he sustained injury to his right hand and left shoulder when he was engaged
1

5 U.S.C. §§ 8101-8193.

in a role playing training exercise at work.2 OWCP initially accepted his claim for impingement
and rotator cuff tear of the left shoulder.3
OWCP accepted that appellant sustained a recurrence of disability on May 16, 2005 due
to his December 19, 2002 work injury and expanded his accepted conditions to include bilateral
affections of shoulder region, not elsewhere classified. Appellant received authorized treatment
from Dr. Thomas B. Rivers, an attending Board-certified orthopedic surgeon.
In a January 29, 2015 decision, OWCP rescinded its acceptance of appellant’s claim for
bilateral affections of shoulder region, not elsewhere classified.4
In a February 7, 2015 letter, appellant requested authorization to travel to Oklahoma City,
OK, to be examined by Dr. John Ellis, a Board-certified family practitioner.5 He asserted that he
was unable to find a physician closer to his home with the same or better qualifications.
Appellant indicated that he had previously been treated by Dr. Ellis and stated, “I prefer
Dr. Ellis; he knows my medical history.”
In a March 5, 2015 letter, appellant, through his representative, requested that his
authorized treating physician be changed to Dr. Ellis. His representative indicated that appellant
had been unsuccessful in finding an appropriate physician closer to his home in Sugar Land, TX.
The representative indicated that such a change was authorized by FECA Bulletin No. 14-02.6 In
a March 6, 2015 letter, appellant indicated that he could not find an appropriate physician who
lived closer to his home than Dr. Ellis.
In an informational letter dated March 19, 2015, an OWCP claims examiner denied
authorization of appellant’s request to change his treating physician to Dr. Ellis. She discussed
resources for finding a physician closer to appellant’s home. In an April 6, 2015 letter,
appellant’s representative listed several physicians contacted by appellant who indicated that
they did not take OWCP patients.
In an April 16, 2015 decision, OWCP denied appellant’s request to change his treating
physician noting that he had not provided sufficient reasons for changing his physician. It stated
that his preference to be treated by Dr. Ellis was not a sufficient reason to change physicians.
Visiting Dr. Ellis’ office in Oklahoma City, OK, required a more than 900-mile roundtrip from
appellant’s home in Sugar Land, TX, whereas Sugar Land, TX was close to Houston, TX.
OWCP stated, “[Y]ou have not provided sufficient evidence that you are unable to obtain
2

When he filed his claim, appellant was living in Sugar Land, TX, which is located approximately 20 miles from
downtown Houston, TX.
3

Appellant received compensation on the daily rolls for periods of disability.

4

Appellant has not appealed this decision and this rescission action is not currently before the Board.

5

At this time, appellant was still living in Sugar Land, TX, which was a one-way distance of more than 450 miles
from Oklahoma City, OK.
6

See infra note 14. A February 26, 2015 document was attached in which appellant discussed the physicians who
treated his medical conditions.

2

appropriate medical care with another physician with a similar specialty within a 50-mile radius
(or 100 miles roundtrip) from your residence or workplace.”
LEGAL PRECEDENT
The payment of medical expenses incidental to securing medical care is authorized under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances, and supplies in accordance with such
regulations and instruction as the Secretary considers necessary.7
When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other instances, however, the employee must submit a written request
to OWCP with his or her reasons for desiring a change of physician. OWCP will approve the
request if it determines that the reasons submitted are sufficient. Requests that are often
approved include those for transfer of care from a general practitioner to a physician who
specializes in treating conditions like the work related one or the need for a new physician when
an employee has moved.8
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. An employee who wants to change attending
physicians must explain his or her reasons in writing and OWCP must review all such requests.
OWCP may approve a change when the original treating physician refers the claimant to another
physician for further treatment, the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field, or from the care of one specialist to
another in the appropriate field, or the claimant moves more than 50 miles from the original
physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip
distance of 100 miles). It must use discretion in cases where other reasons are presented.9
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies. To determine what a reasonable distance to travel is, OWCP will
consider the availability of services, the employee’s condition, and the means of transportation.
Effective August 29, 2011, the most recent regulations provide that a round-trip distance of up to
100 miles is considered a reasonable distance to travel.10 If round-trip travel of more than 100
miles is contemplated, or air transportation or overnight accommodations will be needed, the
employee must submit a written request to OWCP for prior authorization with information
describing the circumstances and necessity for such travel expenses. Requests for travel
7

5 U.S.C. § 8103.

8

20 C.F.R. § 10.316.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5c (February 2012).
10

20 C.F.R. § 10.315(a).

3

expenses that are often approved include those resulting from referrals to a specialist for further
medical treatment, and those involving air transportation of an employee who lives in a remote
geographic area with limited local medical services.11
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP
has the general objective of ensuring that an employee recovers from his or her injury to the
fullest extent possible in the shortest amount of time. It, therefore, has broad administrative
discretion in choosing the means to achieve this goal. The only limitation on OWCP’s authority
is that of 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 deductions from established facts. It is not enough to show merely that the
evidence could be construed to produce a contrary conclusion.12
ANALYSIS
The Board finds that OWCP appropriately exercised its discretion in denying appellant’s
request to change his treating physician.
In a March 5, 2015 letter, appellant, through his representative, requested that his
authorized treating physician be changed to Dr. Ellis, a Board-certified family practitioner whose
office was in Oklahoma City, OK. At the time, he was living in Sugar Land, TX, which is
located about 20 miles from downtown Houston, TX, and more than 450 miles from Oklahoma
City. Appellant indicated that he preferred Dr. Ellis because he knew his medical history and
asserted that he could not find a suitable physician closer to home.
The Board finds that, in its April 16, 2015 decision, OWCP properly exercised its
discretion to deny appellant’s request to change treating physicians. It found that he had not
provided sufficient reasons for changing his physician, noting that his preference to be treated by
Dr. Ellis was not a sufficient reason to change physicians. OWCP pointed out that visiting
Dr. Ellis’ office in Oklahoma City, OK, required a more than 900-mile roundtrip from
appellant’s home in Sugar Land, TX, whereas Sugar Land, TX, was close to Houston, TX, a
major metropolitan area. It stated that appellant had not provided sufficient evidence that he was
unable to obtain appropriate medical care with another physician with a similar specialty within a
50-mile radius (or 100 miles roundtrip) from his home.13 Although appellant indicated that he
had contacted several physicians who would not take OWCP patients, he did not submit
evidence showing that there were no appropriate physicians close to his home that were available
to treat him.
Before OWCP and on appeal, appellant’s representative argued that FECA Bulletin No.
14-02 controlled appellant’s situation and dictated that travel should be approved for up to 900
11

Id. at § 10.315(b).

12

J.W., Docket No. 13-1852 (issued January 23, 2014); Rosa Lee Jones, 36 ECAB 679 (1985).

13

See supra notes 8 through 11 regarding the standards for considering requests to change physicians and for
travel authorization to visit physicians.

4

miles in distance and up to six months in length. The Board notes that FECA Bulletin No. 14-02
provides that, in limited circumstances, travel may be approved for more than 100 miles for
reasons such as the need to see a treating physician or therapist if the claimant lives in a remote
area.14 However, in the present case, appellant does not live in a remote area as the record shows
that he lives in the Houston, TX, metropolitan area. He has not submitted evidence showing that
there are no appropriate physicians in his area.
As noted above, OWCP has broad administrative discretion in choosing the means to
achieve the goal of providing treatment to a claimant. The only limitation on its authority is that
of reasonableness and 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 deductions from established facts.15 The Board finds that, under these standards,
OWCP has not abused its discretion in denying appellant’s request to change his treating
physician.
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 properly exercised its discretion in denying appellant’s
request to change his treating physician.

14

See FECA Bulletin No. 14-02 (issued January 29, 2014).

15

See supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2015
Washington, DC

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

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

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

6